Last Gasps

by Kieran Healy on December 1, 2008

This article is mostly about the Bush Administration’s rush to put a new workplace unsafety rule in place:

The Labor Department is racing to complete a new rule, strenuously opposed by President-elect Barack Obama, that would make it much harder for the government to regulate toxic substances and hazardous chemicals to which workers are exposed on the job. The rule, which has strong support from business groups, says that in assessing the risk from a particular substance, federal agencies should gather and analyze “industry-by-industry evidence” of employees’ exposure to it during their working lives. The proposal would, in many cases, add a step to the lengthy process of developing standards to protect workers’ health.

Because we all know businesses oppose cumbersome federal regulations, right? Except when they can be made maximally cumbersome, and thus wholly ineffective. But the best part of the article is later:

The Labor Department rule is among many that federal agencies are poised to issue before Mr. Bush turns over the White House to Mr. Obama. One rule would allow coal companies to dump rock and dirt from mountaintop mining operations into nearby streams and valleys. Another, issued last week by the Health and Human Services Department, gives states sweeping authority to charge higher co-payments for doctor’s visits, hospital care and prescription drugs provided to low-income people under Medicaid. The department is working on another rule to protect health care workers who refuse to perform abortions or other procedures on religious or moral grounds.

Other rules under review include an OSHA rule that CEOs be allowed to kick a small child, kitten or puppy at least once per day or after particularly stressful meetings; a DoE directive encouraging nuclear power stations to seize public school playgrounds for temporary waste processing; and the permenantizing of a Department of the Interior Program allowing pilots of fire-fighting aircraft to practice drops in the off season in built-up areas using otherwise idle stocks of waste engine oil, sewage or medical waste as needed.



John Quiggin 12.01.08 at 7:48 am

I’m at something of a loss to know how this can work, though of course my understanding of the US system is limited. What’s to stop Congress passing a bill that repeals these specific regulations, and daring the Repubs to try a filibuster\


Keith M Ellis 12.01.08 at 8:29 am

So much government policy is de facto the product of agency regulation and not law—Congress can certainly respond to these regulations, but there’s no way it can address them all. I suppose it’s an example of how the checks-and-balances paradigm is overwhelmed by the reality of the immensity of modern US federal government.

I noticed this:

“Another, issued last week by the Health and Human Services Department, gives states sweeping authority to charge higher co-payments for doctor’s visits, hospital care and prescription drugs provided to low-income people under Medicaid.”

This is unfortunate, but it just might be a blessing in disguise. As a practical matter, right now many Medicaid beneficiaries might as well not be in the program at all, given how few doctors accept Medicaid patients. If higher co-payments mean more doctors began accepting Medicare recipients, then some health care with higher copayments is certainly better than no health care with lower copayments. On the other hand, the higher copayments may themselves act as a barrier. Higher copayments certainly are the least desirable solution to this problem; but it’s typical of heartless Bush administration.

I knew a woman who is a special education teacher in one of Austin, Texas’s small exurbs. She had two students with mouthes full of rotten teeth that were actually dangerous to their health as well as being a direct cause of their malnourishment. Despite the fact that both had dental coverage via Medicaid, there were no doctors in the area, including Austin, that would take them as patients. This teacher finally organized a radio fund-raising effort to provide for emergency dental care for these two students.

In New Mexico, where I live now, the state has organized an independent program with a larger pool of beneficiaries than just Medicaid recipients and which, for some reason, has far more health provider participation. Apparently, there is no problem here with Medicaid recipients getting health care, providing they choose to join this other program (“Salud”).

Obama has long had a low-profile working group researching and watching for these regulatory changes by the Bush admit and identifying which can be quickly reversed, and in what priority. We can hope they will be successful. There are so many, however, that one fears that this particular Bush legacy will be difficult to erase.


Keith M Ellis 12.01.08 at 8:30 am

Oops, in one sentence I accidentally substituted “Medicare” for “Medicaid”.


Ciarán 12.01.08 at 9:19 am

Isn’t a lot of this quite redistributive? For one thing, isn’t it safe to assume that the small children will be supplied to CEOs under some sort of federal family-oriented workfare programme?

See: who said Bush doesn’t spend time thinking about social justice.


Katherine 12.01.08 at 9:59 am

Like John, I’m at a bit of a loss here. Why (and presumably there is a good constitutional reason) can’t these regulations just be reversed by Obama when he takes office, if they eminate from the President?


Brett Bellmore 12.01.08 at 12:13 pm

“What’s to stop Congress passing a bill that repeals these specific regulations, and daring the Repubs to try a filibuster?”

Nothing. But we got this whole system of almost complete delegation of power to the executive in the first place, because Congress wanted to be able to parachute in on piddly little issues, and earn it’s graft, without having to worry about responsibility for how the larger system ran. I don’t expect the rent seekers just grew backbones overnight.

They’ll leave it to Obama, and the truth is, nothing stops him from reversing this, though like the Queen Mary, it might take a little while. But then, the ship’s been headed this way since well into the Clinton administration, so what’s the hurry?


Andrew 12.01.08 at 2:38 pm

After the 2004 election, a riposte issued by John Yoo to critics was that America had had its “accountability moment” and voters had therefore indicated that they had given blanket approval to the Administration’s actions.

But that was then.


joseph duemer 12.01.08 at 3:01 pm

Well, Bush is obviously looking to polish up his legacy so as to be attractive on the right-wing speechifying circuit after he leaves office. He and his audiences will spend the next few years polishing their grievances and resentments. The only hope for the country, frankly, is that Bush & the rest of the Republican party continue consolidating into a hard-right, regional rump, perhaps with Sarah Palin as its leader. (There was a good article by Neal Gable in the LA Times yesterday speculating about the roots and future of the Republicans.) Obama can help this along by being competent, steady, and reality-based. I am guardedly hopeful.


Steven Attewell 12.01.08 at 4:31 pm

Congress can reverse these regulations under the Congressional Review Act of 1996, which allows Congress to reverse any regulation “finalized within 60 legislative days of congressional adjournment…Congress then has 60 days to review it and reverse it with a joint resolution that can’t be filibustered in the Senate.” If Congress goes with this, it will be especially ironic, since the Act was originally established by a Republican Congress to block Clinton’s regulations.

Obama can directly reverse any executive orders (not the same as regulations), but for him to reverse any regulations, he’d need to write up new ones, have them undergo the usual process of publication, public comments, hearings, and Congressional review. It’s just takes longer than the aforesaid Congrssional route.


salient 12.01.08 at 5:57 pm

Like John, I’m at a bit of a loss here. Why (and presumably there is a good constitutional reason) can’t these regulations just be reversed by Obama when he takes office, if they eminate from the President?

For a somewhat useful parallel, imagine that certain laws against false imprisonment and kidnapping were temporarily suspended. Sure, when the new Exec or legislature or whoever get into office, they can undo it – but what happened in the meantime? And won’t kidnappers be able to claim they thought their act was still technically legal? And what happens to ‘ongoing’ cases of false imprisonment?

More directly, if you’re allowed to dump dirt even for a one-week period, you’re going to dump a lot of dirt, then a lot more, and you’re going to fight any change in the courts as something you couldn’t possibly comply with until 10 years from now, since you’ve gotten so used to dirt-dumping during that week.


Aaron Swartz 12.01.08 at 8:13 pm

They didn’t eminate from the President — they came from the agencies, established by Congressional statute. And if the agencies wanted to overturn them, they’d have to go thru the lengthy rulemaking process again, which generally takes years. Congress could probably overturn them, but I think they generally don’t like having to pass whole new laws to address specific rulemakings.


bjk 12.01.08 at 8:30 pm

Because as everyone knows, regulations never backfire, and regulators are always sensitive to the marginal costs and benefits. I mean, low copayments could never lead to the overuse of doctors and hospitals, increasing cost, reducing the efficiency of care, etc and so on.


PG 12.02.08 at 3:17 pm


Low copayments *could*. Would you like to proffer any evidence that they *have*, or is sarcasm all that’s in stock today?


The article states:
‘A new president can unilaterally reverse executive orders issued by his predecessors, as Mr. Bush and President Bill Clinton did in selected cases. But it is much more difficult for a new president to revoke or alter final regulations put in place by a predecessor. A new administration must solicit public comment and supply “a reasoned analysis” for such changes, as if it were issuing a new rule, the Supreme Court has said.’

As Steven Attenwell says, it takes longer than having Congress exercise its power of reversal. The Congressional Review Act of 1996 seems like the tool to use if the Democrats can be rapidly herded together.


A. Y. Mous 12.04.08 at 8:52 am

I don’t know how to submit a topic for discussion at CT. On second thoughts, maybe that’s a good thing.

Anyway, Last Gasps is as apt as can be.



Dave 12.05.08 at 8:25 am

Talking of transitions, old/new SecDef Gates declares the GWOT over:

“What is dubbed the war on terror is, in grim reality, a prolonged, worldwide irregular campaign — a struggle between the forces of violent extremism and those of moderation. Direct military force will continue to play a role in the long-term effort against terrorists and other extremists. But over the long term, the United States cannot kill or capture its way to victory.”

The rest of the para is even better:

“Where possible, what the military calls kinetic operations should be subordinated to measures aimed at promoting better governance, economic programs that spur development, and efforts to address the grievances among the discontented, from whom the terrorists recruit. It will take the patient accumulation of quiet successes over a long time to discredit and defeat extremist movements and their ideologies.”

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