Midnight rulemaking
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Midnight rulemaking refers to the informal rules that federal agencies adopt at the end of presidential administrations. Scholars have found that since 1948 agencies have made rules at a higher rate between election day in November and inauguration day the following January.[1] Concerns about the quality of midnight regulations have led presidents, starting with Ronald Reagan, to issue regulatory freezes at the beginning of their administrations.[2] In 1996, Congress passed the Congressional Review Act (CRA), which allows them to review and overturn regulations if the president signs a joint resolution of disapproval. Congress has used the CRA to reverse 18 midnight regulations as of June 2021.[2][3][4][5][6][7][8][9]
Midnight rulemaking defined
Midnight regulations take their name from Cinderella according to Boston University School of Law professor Jack Beermann. The ticking clock of a pending leadership change, reminiscent of Cinderella's magic disappearing at midnight, encourages executive agencies to accomplish as much of their regulatory agendas as possible before time runs out.[2]
Midnight rulemaking by the numbers
Post-election rulemaking increases
A report published by the Mercatus Center looked at the Federal Register and found that the number of new pages increased during the post-election quarters of election years since 1948. The report also noted that the same periods in non-election years had less regulatory output. According to a separate Mercatus study, the surge in regulations existed even when the incumbent president was re-elected.[3][4]
A 2011 study of agency rulemaking during presidential transitions from law professor Anne Joseph O'Connell included the following observations about the rate of regulation:[10]
| “ | In terms of presidential transitions, cabinet departments finished more important actions in the last quarter of President Clinton's Administration (83 actions) than in any other quarter in the data for that presidency (the next highest was the second quarter of 1996 with 55 actions). Similarly, cabinet departments and executive agencies promulgated more final actions (95 and 22 actions, respectively) in the final quarter of President George W. Bush's Administration than in any other quarter of his presidency (the next highest were 72 and 20 actions in the third quarter of the final year for cabinet departments and executive agencies, respectively).[11][10][12] | ” |
Midnight rulemaking in theory and practice
Benefits to special interest groups
According to a 2013 study by Cornell Law School professor Jed Stiglitz, "last-term Presidents, unlike continuing Presidents, issue considerably more controversial rules during the midnight period of their administrations."[13] He added, "Moreover, this pattern is only evident in executive agencies" because "independent agencies such as the Federal Trade Commission, over which the President has less complete control, do not exhibit unusual rulemaking behavior during the midnight term of exiting presidential administrations."[13] Stiglitz defined controversial rules as bigger rules that received a larger volume of negative public comments compared to other rules.[13]
Stiglitz said people expect that presidents use the midnight period to benefit special interest groups; however, he said that subsequent lawsuits suggest that not all midnight regulations represent giveaways to favored industries. Stiglitz claimed that both "Presidents Clinton and G.W. Bush issued midnight rules that apparently operated to the detriment of favored industry groups. In fact, most of the legal challenges to President G.W. Bush's midnight regulations came from industry groups, not labor or public interest groups."[13]
Quality and durability
Sherzod Abdukadirov, writing for the Mercatus Center, said that "outgoing administrations often use [midnight rulemaking] to push through sweeping and controversial regulations."[4] He added, "Once finalized, regulations often prove hard to repeal" and "[d]uring the surge, the agencies’ regulatory analysis quality drops and regulatory oversight by the Office of Information and Regulatory Affairs (OIRA) weakens."[4]
Professor Jack Beermann said that there were no strong indications that midnight rules are of lower quality than rules made outside the midnight period.[2] He added that incoming presidential administrations have tools adequate to deal with the few problematic rules that may come out of midnight rulemaking. Even if midnight rules are not lower quality than others, Beermann said that the practice breeds cynicism and distrust of government, which has negative effects during presidential transitions.[4][2]
Checks on midnight rulemaking
Congressional Review Act
The Congressional Review Act (CRA) is one of several potential tools for restraining midnight rulemaking. The CRA is a federal law passed in 1996 creating a review period during which Congress, by passing a joint resolution of disapproval that is then signed by the president, can overturn a new federal agency rule and block the issuing agency from creating a similar rule in the future. The CRA is used by Congress and the president as a check on the rulemaking activities of federal agencies.[5][6][7][2]
Prior to 2017 the law was successfully used only once, to overturn a rule on ergonomics in the workplace in 2001. In the first four months of his administration, President Donald Trump (R) signed 14 CRA resolutions from Congress undoing a variety of rules issued near the end of Barack Obama's (D) presidency.[5][6][7] Trump signed a CRA resolution invalidating a CFPB guidance document on May 21, 2018, bringing the total number of rules repealed during his administration by that date to 16.[14]
Executive branch regulatory freezes
A tool available to both presidents and governors in restraining midnight rulemaking involves the issuance of memos instructing agencies to delay the implementation of recently-published regulations. Historically, other memos have directed agencies not to issue new rules until appointees from new administrations have had a chance to review and approve them.[2] All presidents since Ronald Reagan who entered office following the departure of a president from the opposite party have implemented initial regulatory freezes.[2]
Past presidential regulatory freezes have shared common elements as administrations work to staff various agencies:[2]
- Immediate freezes on publishing new rules in the Federal Register
- Withdrawl of rules from the Federal Register that have not yet been published
- Suspending the effective dates of rules
Proposed legislative reforms for midnight rulemaking
Midnight Regulations Review Act
The Midnight Regulations Review Act would require the U.S. Government Accountability Office (GAO) to send Congress a report about all major midnight regulations subject to the Congressional Review Act (CRA) within five weeks of the inauguration of a new president. Rep. Gerry Connolly (D-Va.) sponsored the bill on December 14, 2020.[15][16]
Midnight Rules Relief Act
The Midnight Rules Relief Act would amend the CRA to allow Congress to reject multiple rules using one resolution of disapproval if the rules in question were submitted during the final 60 legislative days of the final year of a president's term. The bill has been introduced during multiple legislative sessions, including the 118th United States Congress. Rep. Andy Biggs (R) introduced the bill on January 9, 2023. The bill passed the House with a vote of 210-201 on December 17, 2024, but the Senate did not vote on the bill before the legislative session ended. Biggs reintroduced the Midnight Rules Relief Act in the 119th United States Congress on January 3, 2025.[17][18][19]
See also
External links
Footnotes
- ↑ George Washington University Regulatory Studies Center, "Midnight Rulemaking," accessed August 17, 2018
- ↑ 2.0 2.1 2.2 2.3 2.4 2.5 2.6 2.7 2.8 Michigan Journal of Environmental & Administrative Law, "Midnight Rules: A Reform Agenda," 2013
- ↑ 3.0 3.1 Mercatus Center, "The Cinderella Constraint: Why Regulations Increase Significantly During Post-Election Quarters," 2001
- ↑ 4.0 4.1 4.2 4.3 4.4 Mercatus Center, "Beware the Surge of Midnight Regulations," July 17, 2012
- ↑ 5.0 5.1 5.2 U.S. News, "Democrats Push to Repeal Congressional Review Act," June 1, 2017
- ↑ 6.0 6.1 6.2 The Hill, "The Congressional Review Act and a deregulatory agenda for Trump's second year," March 31, 2017
- ↑ 7.0 7.1 7.2 Smithsonian Magazine, "What Is the Congressional Review Act?" February 10, 2017
- ↑ The White House, "Remarks by President Biden Signing Three Congressional Review Act Bills into Law: S.J.Res.13; S.J.Res.14; and S.J.Res.15," June 30, 2021
- ↑ George Washington University Regulatory Studies Center, "Congressional Review Act ," accessed December 18, 2020
- ↑ 10.0 10.1 Anne Joseph O'Connell, "Agency Rulemaking and Political Transitions," Northwestern University Law Review, Vol. 105, No. 2, January 2011
- ↑ Some internal citations and quotations have been omitted
- ↑ Note: This text is quoted verbatim from the original source. Any inconsistencies are attributable to the original source.
- ↑ 13.0 13.1 13.2 13.3 New York University Journal of Legislation and Public Policy, "Unaccountable Midnight Rulemaking? A Normatively Informative Assessment," 2014
- ↑ Congress.gov, "S.J.Res.57," accessed May 22, 2018
- ↑ House Committee on Oversight and Reform, "Midnight Regulations Review Act Text," accessed December 18, 2020
- ↑ Congress.gov, "H.R.8956 - To require reports on regulations issued, and homeland security risks arising, during a presidential transition, and for other purposes," accessed December 18, 2020
- ↑ Congress.gov, "H.R.77 - Midnight Rules Relief Act," accessed February 11, 2025
- ↑ Congress.gov, "H.R. 87 - Midnight Rules Relief Act of 2019," accessed March 11, 2019
- ↑ Congress.gov, "H.R.115 - Midnight Rules Relief Act," accessed January 16, 2025
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