Midnight regulations areUnited States federal governmentregulations created byexecutive branch agencies during thetransition period of an outgoingpresident's administration.
TheUnited States Congress passes laws that sometimes outline only broad policy mandates.Rulemaking by the specialist agencies in the executive branch adds necessary detail to these laws. Rulemaking also provides an administration with an opportunity to exert political influence over government without having to go through Congress to change the law.
U.S. federal law mandates a 60-day waiting period before any major regulatory changes become law. Thus, some presidents try to publish new major regulations on November 21, 60 days before the new president'sinauguration on January 20. "Minor" regulations, or those that have less thanUS$100 million in effect on the economy or do not have major social policy significance,[1] have a similar 30-day waiting period. Tom Firey, of theCato Institute'sRegulation magazine, argues that most midnight regulations are in fact primarily political symbolism rather than major regulatory change.[2] Regulations that have not yet become law can be placed on hold by the incoming President.[3]
Regulations that take effect before a new president takes office can still be reversed by the same executive agencies, but this requires a considerablerule-making process. In addition, reversing recently enacted regulations may distract an incoming administration from its own regulatory agenda.[1] Alternatively, because regulations are executive branch agencies' interpretations of statutes passed byCongress, Congress can effectively overturn the regulations by passing more explicit statutory mandates. But in each case the period in which the disfavored regulations are law may permit undesired results to take place. For example, a heavily polluting power plant could be built in the period that a federal regulation is law.[4] A third option is for Congress to overturn the regulation under theCongressional Review Act of 1996, requiring congressional approval for any similar rule issued in the future. Of the 50,000 regulations enacted since the Act was passed, As of 2008[update], only fifteen had been so overturned.[5]
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The term "midnight regulation" entered the lexicon in 1980–81, during the final months ofJimmy Carter's single term as president.[6] Carter's administration set a new record for midnight regulations[6] by publishing more than 10,000 pages of new rules between Election Day andRonald Reagan's Inauguration Day.[4] The term is an allusion to the "midnight judges" appointed byJohn Adams in the final months of his presidency.[4]
Due to midnight regulations, since 1948, during the period between a presidential election and the inauguration of a president of a differentparty, theFederal Register has averaged 17 percent more pages than during the same period in non-election years.[6][7]
TheClinton administration enacted a flurry of rules limiting logging and lead paint, raising appliance energy efficiency, and tightening privacy of medical records.[8] One of Clinton's midnight regulations imposed a more stringentdrinking water standard for arsenic after years ofEPA study. Although Bush suspended the new regulation upon taking office, EPA headChristine Todd Whitman eventually approved it.[4] When President George W. Bush took office in 2001, his administration acted to block the implementation of 90 final rules that were issued in the final months of theClinton administration but that had not yet gone into effect.[9]
TheBush administration also approved thousands of pages of dozens of new agency rules,[10] setting a new record.[11] Many of these regulations were promulgated in the hope of ensuring enactment beforeBarack Obama took office and could prevent the rules from becoming law. BushChief of StaffJoshua Bolten encouraged timely passage of the rules in a May 2008 memo to agencies suggesting that final versions be submitted by November 1.[9] Finalized and proposed rules included:[1]
Several other rules were already adopted in late 2008, including one increasingtruck drivers' maximumhours of service to eleven and another restricting employee time off under theFamily and Medical Leave Act.[12] The rules attracted considerable criticism.[13]
Hours after Obama took office, his administration ordered all executive branch agencies to halt enactment of any rules proposed during the Bush administration until the incoming administration could review them.[14] According to the environmentalist magazineGrist, these efforts were effective in only a few cases; for other environmental rules the Obama administration tried to reverse some rules through Congress and some through the same slow administrative rulemaking process while interest groups challenged other environmental regulations in the courts.[15]
A subcommittee on administrative law in the DemocraticHouse of Representatives held a hearing on midnight regulations the month after Obama's inauguration.[16]
TheObama administration recognized the potential for midnight regulations as early as the end of 2015.Howard Shelanski, the Administrator for theOffice of Information and Regulatory Affairs (OIRA), issued a memo to federal agencies directing them to: “To the extent feasible and consistent with your priorities, statutory obligations, and judicial deadlines, however, agencies should strive to complete their highest priority rulemakings by the summer of 2016 to avoid an end-of-year scramble that has the potential to lower the quality of regulations that OIRA receives for review and to tax the resources available for interagency review.”[17] In the Obama administration's finalUnified Agenda, there were25 notable rules in the “midnight period” with combined regulatory cost estimates (from the “proposed rule” versions) of approximately $44.1 billion.[18]
Starting in November 2016[19] (the first month of the Obama “midnight period”), OIRA concluded review of 57 rule-makings – a 26 percent increase over the monthly pace from the rest of 2016.[20] Fourteen of these measures were “economically significant” rule-makings.[20] That represents the second-highest total in any November “midnight period” since at least 1996.[20] Notable rulemakings from November 2016 include:
House Republicans introduced legislation that would provide a check upon Obama administration midnight rules. RepresentativeDarrell Issa introducedH.R. 5982, or the “Midnight Rules Relief Act of 2016”, that “amends theCongressional Review Act to allow Congress to consider a joint resolution to disapprove multiple regulations that federal agencies have submitted for congressional review within the last 60 legislative days of a session of Congress during the final year of a President's term.”[25] The bill passed in theHouse of Representatives by a vote of 240–179.[26]
SenatorRon Johnson has written letters to Shelanski and multiple other agencies asking them to put a hold on regulatory activity during this “midnight period”.[27]
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