Midnight Rules: A Reform Agenda

There is a documented increase in the volume of regulatory activity during the last ninety days of presidential administrations when the President is a lame duck, having either been defeated in a bid for re-election or being at the end of the second term in office. This includes an increase in the number of final rules issued as compared to other periods. The phenomenon of late-term regulatory activity has been called “midnight regulation,” based on a comparison to the Cinderella story in which the magic wears off at the stroke of midnight. This Article looks closely at one species of midnight regulation— namely, midnight rules. This Article defines midnight rules as agency rules promulgated in the last ninety days of an administration. This Article focuses on legislative midnight rules (normally issued under the notice and comment procedures of the Administrative Procedure Act (APA)), because they are the most visible and often the most controversial actions taken in the final days of administrations and because they are usually the most difficult to alter or revoke among the various midnight actions taken by outgoing administrations. However, because late-term activity goes beyond legislative rulemaking, this report also discusses, to a lesser extent, other phenomena such as the issuance of non-legislative rules including interpretative rules and policy statements; non-rule regulatory documents, such as guidance documents and executive orders; and the use of other presidential powers, such as the pardon power and the ability to entrench political appointees into protected employment positions in the new administration. This Article documents the existence of the midnight rules phenomenon both quantitatively and qualitatively, using numerical measures of the volume of rules and qualitative analysis of some rules as illustrations. The Article reviews various explanations for the existence of the phenomenon, ranging from the simple human tendency to work to deadline, to more complicated political factors that may affect the timing of rules. The Article also reports on interviews of officials involved in rulemaking to inform the analysis of the causes and effects of the midnight rulemaking phenomenon. This Article also addresses midnight rulemaking from a policy perspective, asking whether there are reasons to be concerned about the phenomenon. Midnight rulemaking and midnight regulation generally have been strongly condemned by commentators and media from across the political spectrum. There are at least two possible sets of concerns regarding the increase in rulemaking at the end of an administration: first, midnight rules may be of lower quality than rules issued at other times during administrations, and second, midnight rulemaking may involve undesirable political consequences, mainly the unwarranted extension of an outgoing administration’s agenda into the successor’s term. It may be very difficult to arrive at firm conclusions on either of these potential objections to midnight rulemaking, but this Article will attempt to do so from various perspectives.