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 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
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.
* 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.