Maeve P. Carey
Analyst in Government Organization and Management
During the final months of recent presidential administrations, federal agencies have increased the number of issued regulations. This phenomenon is often referred to as “midnight rulemaking.” Various scholars and public officials have documented evidence of midnight rulemaking by several recent outgoing administrations, especially for those outgoing administrations that will be replaced by an administration of a different party.
One possible explanation for the issuance of “midnight rules” is the desire of the outgoing administration to complete its work and achieve certain policy goals before the end of its term of office—what has been termed the “Cinderella effect.” Because it may be difficult to change or eliminate rules after they have taken effect, issuing midnight rules can also help ensure a legacy for a President. This may especially be true when a party change will occur in the White House.
At times, certain rules issued during the last few months of an administration have been considered by some as controversial. For example, before President William J. Clinton left office, his administration issued energy efficiency standards for washing machines and a rule setting ergonomics standards in the workplace. Shortly before the end of President George W. Bush’s second term concluded, his administration finalized rules allowing states to determine whether concealed firearms may be carried in national parks and giving agencies greater responsibility to determine when and how their actions may affect species under the Endangered Species Act.
On the other hand, a recent study for the Administrative Conference of the United States (ACUS) concluded that many midnight regulations 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 (such as year-end statutory or court-ordered deadlines).” The study cited some evidence of the strategic use of midnight rules to implement certain desired policies before leaving office, but in general, the study said that “the perception of midnight rulemaking as an unseemly practice is worse than the reality.”
In the 112th Congress, companion bills entitled the Midnight Rule Relief Act of 2012 (H.R. 4607 and S. 2368) were introduced by Representative Reid Ribble and Senator Ron Johnson. The Midnight Rule Relief Act would establish a moratorium on the proposal or issuance of certain types of rules during the period between a presidential election day and inauguration day of a President’s final term in office. The law would only apply in cases “in which a President is not serving a consecutive term.” The House Committee on Oversight and Government Reform reported H.R. 4607 on June 1, 2012. S. 2368 was referred to the Senate Committee on Homeland Security and Governmental Affairs upon introduction.
This report provides an overview of midnight rulemaking and discusses actions that recent outgoing and incoming administrations have taken pertaining to midnight rules. It explains how an incoming President could change or eliminate midnight rules, and provides options for congressional oversight of midnight rules.
Date of Report: July 18, 2012
Number of Pages: 18
Order Number: R42612
Price: $29.95
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