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- By Professor Victoria Sutton
Guest Opinion. As the end of the year approaches and the holidays distract us, the government continues to promulgate regulations. The flood of regulations that come at the end of a four or eight year term of a Presidency have earned the moniker, “midnight regulations,” as they are pushed out for publication in the last hours of the Administration.
These are typically regulations that have been in development over months and years, and so as not to potentially lose the momentum on these rules, the Administration needs to push them out before they go. This is a non-partisan practice — both Republican and Democrat Administrations do this.
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It also makes these regulations a bit more fragile. The incoming Administration has traditionally taken aim at these midnight regulations and withdrawn them in the first thirty days of the new Administration. Since the new Administration is setting policy for the next four years, this has become an accepted practice, although any case may bring controversy. In 2016, a bill was introduced in Congress to allow Congress to recall any and all regulations in a block that have been published in the last 60 days of an outgoing Administration.
The Midnight Rules Relief Act was moved to the House calendar as of December 11, 2024 and passed. It would expand the proposed bill of 2016 from the last 60 days of rulemaking to the last year of rulemaking that is subject to rollback as a package.
Why?
The regulations are completed because it is a way of saving all the government hours of work that went into their promulgation. By some estimates this amounts to $1 trillion dollars for the Biden Administration for this calendar year. There is also a reason to wait until you are going out the door because the regulations you publish may be controversial and likely to be challenged in judicial review, and you want to leave that to the next “team.” It could also mean that you know these regulations will be withdrawn by the next Administration and just need to make a statement or act in a way that shows you kept a campaign or policy promise. It is a little hollow, but sometimes that is the best one can do.
It’s a mixed bag
Regulations that you push out the door on the last day, may just signal they were not regulations the Administration cared to defend. So some of these will have to go; but that said, I am glad to see at least one group of them that I hope will stay around.
I am happy to see the proposed listings under the Endangered Species Act. These continue to be highly controversial with calls to give more power to the states by opponents. States having more power is the very reason that federalism is important in Constitutional law, as species do not recognize jurisdictional borders, nor do air or water. This is the reason that the 1970s ushered in a suite of environmental regulation that exercised the federalism aspect of the Constitution that called for federal regulation for those things that affect interstate commerce. Sure, it would be more straightforward if we had a Constitutional text that listed “environmental regulation” along with the Post Office and other enumerated tasks of Congress to which it is limited. But because we have a conservative document that limits the power of the federal government and reserves all other powers to states and citizens, it means that each situation has to be analyzed for its effect on interstate commerce to determine over which the federal government has clear authority and jurisdiction.
The Monarch Butterfly Proposal
The listing of the Monarch Butterfly as threatened is one of the proposals made this month, December 10, 2024. Threatened is one of the two categories that can be designated as a protected species, the higher level of protection is “endangered.” The Monarch Butterfly is a long focus of unintended consequences, and the listing process and science are analyzed in November 2022 and February 2024. It will be scrutinized by the incoming Administration and hopefully recognize its importance.
The midnight release of this proposal is the result of a long process of rule proposal, notice and comment, then judicial review and then back to the Executive Branch for proposal again. The Monarch was a candidate since December 2020 for listing, based on a finding by the Dept. of Interior that it warranted listing as a threatened species. But it was not listed at that time, with the reason given that other species were more important. In response to this action by the Department of Interior not to proceed with the listing, the Center for Biological Diversity challenged this decision in federal court. The Center for Biological Diversity challenged their “warranted but not “ as “arbitrary and capricious” which means the agency has no legal basis or even reasoned basis in law for the decision. This resulted in a settlement with DOI requiring them to submit a proposal to list the Monarch by publication in the Federal Register by December 2, 2024.
Final thoughts
There will be more to come, but this one for the beleaguered Monarch butterfly has been a long time in coming. The status of a rule making orders through judicial review should ensure its finality. Implementation depends on the incoming Administration and it should be reviewed and implemented consistent with its threatened status in the coming year.
To read more articles by Professor Sutton go to: https://profvictoria.substack.
Professor Victoria Sutton (Lumbee) is a law professor on the faculty of Texas Tech University. In 2005, Sutton became a founding member of the National Congress of American Indians, Policy Advisory Board to the NCAI Policy Center, positioning the Native American community to act and lead on policy issues affecting Indigenous communities in the United States.
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