Midnight Rules

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Committee: 
Midnight Rules in stage 8. Implementation

Project Stages:

1. Gather ideas - Completed
2. Select ideas - Completed
3. Council approval - Completed
4. Picking a researcher - Completed
5. Committee consideration - Completed
6. Back to the council - Completed
7. Consideration by the full conference - Completed
8. Implementation - Current
Stage:  
8. Implementation

Contacts

Project Advisor
202.480.2098
folorunnipa@acus.gov
Staff Counsel
202.480.2086
ebremer@acus.gov
Consultant
Jack M. Beermann
Professor of Law
Boston University School of Law

Background: In the last three months of a presidential administration, rulemaking activity increases considerably when compared to the same period in a non-transition year.*  Although part of this increase likely results from ordinary procrastination and external delays, scholars have suggested that administrations also use the “midnight” period more strategically.  First, administrations are said to have reserved particularly controversial rulemakings for the final months of an outgoing president’s term.  Such strategic timing would weaken the check that the political process provides for regulatory activity and would impose the outgoing administration’s policy preferences on the incoming administration.  Second, administrations have issued rules in their final months that seem to have the main purpose of embarrassing or impeding the activities of the incoming administration.**

The scholarly literature largely condemns the practice of midnight rulemaking as undemocratic and inefficient.  Both the House Judiciary Committee’s Subcommittee on Commercial and Administrative Law and the ABA Section on Administrative Law and Regulatory Practice suggested the topic of midnight rules as suitable for study by the Administrative Conference and the Conference undertook study of this topic.

Project Details: The Conference undertook a study on the issue of midnight rules. The study sought to establish whether rules issued in the final months of a presidential administration indeed have a different character than rules issued at other times, and, if so, why.  The study also focused on recommending proposed procedures that could improve presidential and agency practices with regard to midnight rules. Recommendations in the study recognized that an outgoing President remains in power until the last moment of his or her constitutionally assigned term.   The Conference’s consultant, Jack M. Beermann, Professor of Law, Boston University School of Law conducted comprehensive research on the issue of midnight rules.

Additional Information:  The Committee on Rulemaking held two public meetings, on February 23, 2012 and March 21, 2012, to consider a draft report and a draft recommendation for this project.  The Committee came to a consensus on a proposed recommendation and it was approved to send to the Council of the Conference. The Council approved the draft recommendation with certain revisions, and the full Assembly of the Conference voted to approve the recommendation at its Plenary Session on June 14, 2012.  All relevant documents connected with the Plenary Session and prior committee meetings are posted below.

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* One study shows that, as measured by Federal Register pages (notably, a rather crude measure), rulemaking activity increases by an average of 27.4%.  See Jack M. Beermann, Presidential Power in Transitions, 83 B.U.L. Rev. 947, 954, n.12 (2003) (citing Jay Cochran, III, The Cinderella Constraint: Why Regulations Increase Significantly During Post-Election Quarters 3 n.6 (Mar. 8, 2001) (unpublished manuscript on file with the author), available at http://www.mercatus.org/pdf/materials/459.pdf (last accessed Nov. 3, 2003) (studying the number of pages published in the Federal Register over specific time periods in various presidential administrations)).

** See Beermann, supra note 1, at 959, 963-67.

Final Recommendation

Recommendation 2012-2, “Midnight Rules,” addresses several issues raised by the publication of rules in the final months of a presidential administration. The recommendation offers a number of proposals for limiting the practice of issuing midnight rules by incumbent administrations and enhancing the powers of incoming administrations to review midnight rules.

Project Documents

Name Committee Type Date
Draft Midnight Rules Report Appendix Rulemaking Appendix February 8, 2012 Download
Committee on Rulemaking Meeting Minutes Rulemaking Meeting Minutes February 23, 2012 Download
Committee on Rulemaking Meeting Minutes Rulemaking Meeting Minutes November 14, 2011 Download
Midnight Rules Project Outline Rulemaking Outline November 1, 2011 Download
Department of Homeland Security’s Comments (on Midnight Rules, Immigration, and Interagency Coordination): DHS's Comments Regulation Public Comment June 8, 2012 Download
Regulatory Checkbook Comments on Midnight Rules Outline Rulemaking Public Comment November 10, 2011 Download
Proposed Recommendation: Midnight Rules Rulemaking Recommendation June 14, 2012 Download
Redlined Recommendation Containing Amendments and Comments: Midnight Rules Redline Rulemaking Recommendation June 14, 2012 Download
Midnight Rules Rulemaking Recommendation June 14, 2012 Download
Midnight Rules Redline Showing Proposed Amendments for Consideration at Plenary Rulemaking Recommendation June 8, 2012 Download
Proposed Midnight Rules Recommendation Rulemaking Recommendation May 22, 2012 Download
Redline of Changes to Draft Recommendation Rulemaking Recommendation March 13, 2012 Download
Redline of Changes to Draft Report Rulemaking Recommendation March 13, 2012 Download
Revised Draft Midnight Rules Recommendation Rulemaking Recommendation March 13, 2012 Download
Draft Midnight Rules Recommendation Rulemaking Recommendation February 17, 2012 Download
Revised Draft Midnight Rules Report Rulemaking Report March 13, 2012 Download
First Draft Midnight Rules Report Rulemaking Report February 8, 2012 Download
Committee Meeting Webcast Rulemaking Webcast March 21, 2012 Watch Video
Committee Meeting Webcast Rulemaking Webcast February 23, 2012 Watch Video
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