Time for Oversight, Foresight, and Hindsight Hearings

Juliet Eilprin’s story in yesterday’s Washington Post about how the Obama administration delayed the rollout of numerous regulations to avoid controversy in the election ought to be a significant scandal:

The White House systematically delayed enacting a series of rules on the environment, worker safety and health care to prevent them from becoming points of contention before the 2012 election, according to documents and interviews with current and former administration officials.

Some agency officials were instructed to hold off submitting proposals to the White House for up to a year to ensure that they would not be issued before voters went to the polls, the current and former officials said. . .

The Obama administration has repeatedly said that any delays until after the election were coincidental and that such decisions were made without regard to politics. But seven current and former administration officials told The Washington Post that the motives behind many of the delays were clearly political, as Obama’s top aides focused on avoiding controversy before his reelection.

The number and scope of delays under Obama went well beyond those of his predecessors, who helped shape rules but did not have the same formalized controls, said current and former officials who spoke on the condition of anonymity because of the sensitivity of the topic.

Memo to Rep. Darrell Issa, chairman of the House Oversight Committee: There ought to be full-scale hearings about this, with subpoenas of White House and agency emails, etc.  In addition, someone in the House ought to give some thought to foresight hearings rather than after-the-fact oversight hearings.  One of the common practices of outgoing Democratic administrations is to try to jam through a bunch of regulations at the last minute before a new president takes office—sometimes even listing the Federal Register notice on January 19.  The Clinton administration in 2001 thus saddled the incoming Bush administration with a number of time bombs that in some cases couldn’t be defused—especially the costly and probably unnecessary regulations about arsenic, which, with the usual subtlety of liberals, got transformed into the Bush administration wanting “to put arsenic in drinking water” when the Bush administration quite sensibly wanted to slow it up for a second look.  It was almost as though someone had wanted to call ketchup a vegetable or something.

So a set of “foresight” hearings into potential last minute regulations ought to be held in the fall of 2016. If nothing else, it might be nice to set some perjury traps for career bureaucrats.

But beyond the particular facts of this case or prospective midnight regs in 2017, the House Judiciary Committee might want to hold some wider range hearings on the broader problem here.  The Obama administration may have been perfectly within its legal rights to delay regulations, because we have enabled far too much administrative discretion today.  Congress ought to get some of it back, or find a way to curtail it.  (Start with the REINS Act, please.)  A few broad scale hearings with some of our best constitutional/admin. law thinkers like Michael Greve and Gary Lawson.  Call these the “hindsight” hearings.