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Push Back Against the Dead Hand of a Lame Duck

Just as a last will and testament is used to control one’s property after death, this administration appears to be using “midnight regulations” and “burrowing in” to reach a dead hand into the next administration. President George W. Bush has entered his midnight period — his last three months of office — and his efforts are dark indeed.

As chairwoman of the Judiciary subcommittee that uncovered unprecedented politicization of the Justice Department, I am concerned that partisan appointees of the outgoing administration are burrowing in to permanent jobs that are usually reserved for hardworking career employees. Bush burrowers will instantly be granted tenure as they move from temporary political status to a place on the permanent federal payroll.

The burrowing in phenomenon is occurring in high-level posts across several powerful agencies, including the Justice Department, the Labor Department, the National Oceanic and Atmospheric Administration, the Department of Housing and Urban Development, and the Department of the Interior.

In one particularly troubling instance, a former Republican Congressional staffer and a political appointee in the Drug Enforcement Administration recently obtained a permanent senior executive post at the DEA after being denied a lower-level career appointment only a few months ago. As a Capitol Hill staffer in 2005, he made $39,000, but in his new senior executive position at the DEA, he will earn from $114,000 to $172,000.

Rewarding party loyalists with plum civil service positions not only undermines the merit-based career government employee system, but it also thwarts the will of the electorate, who demanded in November that the federal government move in a new direction. Embedded in high-level career posts, Bush burrowers could make it difficult for the new administration to make much-needed changes at federal agencies. After rejecting the failed policies of the past eight years, American taxpayers should no longer have to foot the bill for unqualified party loyalists.

I am equally concerned that the Bush administration is pushing through eleventh-hour changes to federal rules, thereby attempting to circumvent the deliberation and public scrutiny rule-making usually receives. While midnight regulations get little public attention, they can have serious consequences on workplace safety, privacy, access to health care and our environment.

A memo by White House Chief of Staff Joshua Bolten in May announced the end of midnight regulations, stating that except in extraordinary circumstances, final regulations should be issued no later than Nov. 1, 2008. However, by already issuing dozens of controversial rules well after the deadline, the administration has blatantly ignored its own guidelines. Dozens of other, and possibly more controversial, rules are likely on their way. Instead of implementing midnight regulations only in extraordinary circumstances, the Bush administration has used midnight regulations as parting gifts to favored industries at the expense of the public good.

Among the many new rules is a limitation on the scope of services that can be provided to the poor under the Medicaid program. Under the new rule, Medicaid would be prohibited from covering certain outpatient hospital clinics — a common way to provide health care to low-income communities and reduce emergency room use.

Another controversial regulation would change the way the federal government enforces the Endangered Species Act by giving land-use managers authority to approve projects like infrastructure creation, minerals extraction or logging. This allows agencies to ignore any consultation from scientists or biological health experts on the impacts of major environmental actions. Another pending rule makes it easier for coal-mining companies to raze the tops of mountains and dump the waste into streams. Changes such as these will weaken environmental protections and run counter to the policies of the incoming administration.

As we transition to a new era, Congress and the American people must examine actions by agencies to cut corners in rushing regulations and the burrowing in of political picks. The administration should direct executive agencies to immediately halt any conversions of favored political appointees to career positions. Congress should consider blocking funding of objectionable midnight regulations or nullifying them through the provisions of the Congressional Review Act. Furthermore, President-elect Barack Obama can consider rescinding some of these egregious regulations that have not yet been published in the Federal Register — where new regulations are published — and delay those already on the books to allow his incoming Cabinet time to review them.

While Bush may only have a month and a half left in office, his actions implemented in the waning days of his presidency will leave an imprint in the next administration that may be difficult to reverse. It is important that Congress and the American people keep a watchful eye on these efforts that reach from the grave like a dead hand, and turn them back when they threaten the rights of Americans in the workplace, at home and in their communities.

Rep. Linda Sánchez (D-Calif.) is chairwoman of the Judiciary Subcommittee on Commercial and Administrative Law.

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