LegiStorm

Summary:

During the final months of recent presidential administrations, federal agencies have typically issued a larger number of rules relative to comparable time periods earlier in the administration. This phenomenon is often referred to as “midnight rulemaking.” Various scholars and public officials have documented evidence of midnight rulemaking by several recent outgoing administrations, especially for those outgoing administrations that will be replaced by an administration of a different party. The most likely explanation for the issuance of “midnight rules” is the desire of the outgoing administration to complete its work and achieve certain policy goals before the end of its term of office. This tendency has been termed the “Cinderella effect” by some observers. Because it may be difficult to change or eliminate rules after they have taken effect, issuing midnight rules can help ensure a legacy for a President. Some entities and individuals have raised a number of concerns over the practice of midnight rulemaking. One such concern is that an outgoing administration has less political accountability compared to an administration faced with the possibility of re-election. Furthermore, rules that are hurried through at the end of an administration may not have the same opportunity for public input: agencies may find that to issue regulations by the end of an administration, they may not have sufficient time to read and digest public comments received during the comment period. Another concern over midnight rulemaking is that the quality of regulations may suffer during the midnight period, since the departing administration may issue rules quickly, and, as a result, the rules may not receive adequate review or analysis. One study suggested that “an increase in the number of regulations promulgated in a given time period could overwhelm the institutional review process that serves to ensure that new regulations have been carefully considered, are based on sound evidence, and can justify their cost.” Finally, some have argued that the task of evaluating a previous administration’s midnight rules could overwhelm a new administration. Although some observers have voiced concerns about midnight rulemaking, a 2012 study for the Administrative Conference of the United States (ACUS) concluded that many midnight regulations were “relatively routine matters not implicating new policy initiatives by incumbent administrations,” and that the “majority of the rules appear to be the result of finishing tasks that were initiated before the Presidential transition period or the result of deadlines outside the agency’s control (such as year-end statutory or court-ordered deadlines).” The study cited some evidence of the strategic use of midnight rules to implement certain desired policies before leaving office, but in general, the study said that “the perception of midnight rulemaking as an unseemly practice is worse than the reality.” Congress has several options pertaining to midnight regulations—even after they have taken effect. First, Congress can use its legislative power to overturn or change a regulation that has already been issued: Congress could amend the statutory authority underlying a regulation, which could force an agency to amend a regulation that has been already issued, or could provide additional instruction to an agency before a rule is finalized. In addition, Congress may use the expedited procedures provided in the Congressional Review Act (CRA) to disapprove agency rules, including, in some cases, rules issued by the outgoing administration during the previous Congress. Alternatively, Congress can add provisions to agency appropriations bills to prohibit certain rules from being implemented or enforced. Furthermore, in Congresses coinciding with the end of recent administrations, as well as in the current (114th) Congress, some Members have introduced bills that would change or prevent the practice of issuing midnight rules.