Presidential Transitions: Midnight Rulemaking (CRS Report for Congress)
| Release Date |
July 30, 2024 |
| Report Number |
IF12723 |
| Report Type |
In Focus |
| Authors |
Maeve P. Carey |
| Source Agency |
Congressional Research Service |
Summary:
During the final months of presidential Administrations,
federal agencies have often increased the pace of their
regulatory activities. This phenomenon is often referred to
as “midnight rulemaking.” Because it can be a challenge to
change or eliminate rules after they have been finalized,
issuing midnight rules can help ensure a legacy for an
outgoing President—especially when an incoming
Administration is of a different party.
Some concerns that have been raised over midnight
rulemaking include the decreased political accountability
for an outgoing Administration, the potential for rules that
are hurried through at the end of an Administration not to
have the same opportunity for public input, and the
potential for the quality of regulations to suffer during the
midnight period because the departing Administration may
issue rules quickly and without subjecting them to rigorous
review or analysis. In addition, some have argued that
evaluating a previous Administration’s midnight rules can
potentially overwhelm a new Administration.
On the other hand, one study from 2012 concluded that “the
perception of midnight rulemaking as an unseemly practice
is worse than the reality.” The Administrative Conference
of the United States issued a number of recommendations
regarding midnight rulemaking in 2012, concluding after a
study that many midnight rules 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.”
