Presidential Power in Transitions

The transition between presidencies has long created controversies. Whether the issue is "midnight judges" or "midnight regulations," presidential action at the end of a term has long provoked scrutiny and criticism. Presidents have also raised eyebrows at the beginning of their terms when they assert their authority and try to undo what their predecessor in office left behind. More than one president has taken action aimed specifically at "midnight regulations," such as ordering a freeze on the issuance of new regulations, a review of regulations issued at the end of the prior administration and other similar action. This article looks at the legality and propriety of "midnight regulation" and the devices incoming presidents use to undo "midnight regulation" left behind by their predecessors in office. The article also looks at the reasons why presidential and administrative action tends to increase at the end of a term and the forms that late term action tend to take. We see that sometimes late term action is simply part of an attempt to get more done before the deadline imposed by inauguration day, while in other situations delay may be due to external forces or due to intentional waiting for political reasons. Late term action that should be the greatest cause for concern may be action that appears designed merely to tie the hands of an incoming administration or create political costs without much hope of genuinely projecting the outgoing administration's policies into the future.