The Orbis

Issue date: 1/21/09 Section: News/Features

Media Credit: WhiteHouse.org Bush signs an executive order in 2004.

While many progressives (and even some conservatives) are relieved by the end of the Bush administration, the unfortunate political reality is that President Bush's last-minute executive orders may haunt the workings of the executive branch for months or years to come. The outgoing president signed over a hundred executive orders before leaving office – regulations that do not require the approval of Congress. These regulatory changes, often subtle and highly technical in nature, have the potential to cause significant change in issues such as labor rights and environmental protection.

For the past thirty years, employees of the Bureau of Alcohol, Tobacco, and Firearms have had the right to collective bargaining. However, a last-minute regulation appears to have simply removed these rights for "no justifiable reason" (New York Times editorial opinion). The administration has cited security concerns, arguing that employees of the agency might be compromising national security by unionizing and lobbying regarding issues of employment.

Another new last-minute order allows truckers to drive for longer periods without mandated resting time. The effects of this subtle change on road safety have yet to be seen.

But by far the most wide-ranging regulations (or de-regulations) deal with environmental protection. President Bush has issued orders that would significantly damage the Environmental Protection Act as it stands today. Federal agencies are required to consult other groups about their own policies' impacts on endangered species; according to new regulation, the level of consultation required would be reduced. In addition, fewer facilities than before would be required to install improved pollution-control technology.

Specific environmentally protected sites are also under threat. The Bush administration wants to allow uranium mining near the Grand Canyon. In Appalachia, a region known for its coal mining, companies may now simply dump debris from their controversial strip-mining efforts into local rivers and streams. A revision of the Clean Air Act will now make it much easier to build coal-fired power stations near national parks. In these parks, carrying loaded or concealed guns will also become easier. In the realm of fishing regulation, federal employees have traditionally assessed the environmental impact of fishing practices. New regulation aims to transfer this power to regional fishing interests, letting local opinions take precedence over federally determined standards.

The Obama administration can only do so much to counter the outgoing president's last-minute executive orders. However, the Democratic Congress has the potential to prevent much of the damage. For one, Congress can simply pass a bill that illegalizes whatever an executive order proposes to do. A less direct approach is the Congressional Review Act (CRA), passed in 1996 by the Republican-dominated Congress in order to counter President Clinton's own executive orders. The CRA allows Congress a filibuster-proof vote on regulations that were enacted 60 days after Congress had adjourned. Since the president approves or vetoes Congressional actions, the law has been difficult to use because it requires that the incoming president and Congress be from the same party. Twelve years later, the CRA may be used against the very party that created it. And, since Congress has adjourned frequently in recent months, this technicality could let Congress vote on Bush administration regulations going back to June.

Another, less likely counter to last-minute regulations is the Midnight Rule Act proposed by Representative Jerrold Nadler (D-NY). The bill would give the Obama administration more power to rewrite regulations issued in the last three months of Bush presidency. However, the bill is vulnerable to Republican filibuster in the Senate.

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