Midnight regulations
Encyclopedia
Midnight regulations is a term for United States federal government regulations
created by executive branch agencies in the lame duck
period of an outgoing President
’s administration.
passes laws that sometimes outline only broad policy mandates. Rulemaking
by the specialist agencies in the executive branch adds necessary detail to these laws. Rulemaking also provides an administration with an opportunity to exert political influence over government without having to go through Congress to change the law.
U.S. federal law mandates a 60-day waiting period before any major regulatory changes become law. Thus, some Presidents try to publish new major regulations on November 21, 60 days before the new President’s inauguration on January 20. “Minor” regulations, or those that have less than US$
100 million in effect on the economy or do not have major social policy significance, have a similar 30-day waiting period. Tom Firey, of the Cato Institute
's Regulation
magazine, argues that most midnight regulations are in fact primarily political symbolism rather than major regulatory change. Regulations that have not yet become law can be placed on hold by the incoming President.
Regulations that take effect before a new President takes office can still be reversed by the same executive agencies, but this requires a considerable rule-making process. In addition, reversing recently enacted regulations may distract an incoming administration from its own regulatory agenda. Alternatively, because regulations are executive branch agencies’ interpretations of statutes passed by Congress
, Congress can effectively overturn the regulations by passing more explicit statutory mandates. But in each case the period in which the disfavored regulations are law may permit undesired results to take place. For example, a heavily-polluting power plant could be built in the period that a federal regulation is law. A third option is for Congress to overturn the regulation under the Congressional Review Act
of 1996, requiring congressional approval for any similar rule issued in the future. Of the 50,000 regulations enacted since the Act was passed, only one has been so overturned.
The term "midnight regulation" entered the lexicon in 1980–81, during the final months of Jimmy Carter
’s single term as President. Carter’s administration set a new record for midnight regulations by publishing more than 10,000 pages of new rules between Election Day and Ronald Reagan
's Inauguration Day. The term is an allusion to the “midnight judges
” appointed by John Adams
in the final months of his presidency.
Due to the phenomenon of midnight regulations, since 1948, during the period between a presidential election and the inauguration of a president of a different party
, the Federal Register
has averaged 17 percent more pages than during the same period in non-election years. Presidents George H. W. Bush
, Bill Clinton
, and George W. Bush
have made the most extensive use of midnight regulations, mainly because the incoming President in all three cases was of the opposing party.
enacted a flurry of rules limiting logging and lead paint, raising appliance energy efficiency, and tightening privacy of medical records. One of Clinton's midnight regulations imposed a more stringent drinking water standard for arsenic after years of EPA
study. Although Bush suspended the new regulation upon taking office, EPA head Christine Todd Whitman
eventually approved it. When President George W. Bush took office in 2001, his administration acted to block the implementation of 90 final rules that were issued in the final months of the Clinton administration
but that had not yet gone into effect.
The Bush administration also approved thousands of pages of dozens of new agency rules, setting a new record. Many of these regulations were promulgated in the hope of ensuring enactment before Barack Obama
took office and could prevent the rules from becoming law. Bush Chief of Staff
Joshua Bolten encouraged timely passage of the rules in a May 2008 memo to agencies suggesting that final versions be submitted by November 1. Finalized and proposed rules included:
Several other rules were already adopted in late 2008, including one increasing truck driver
s' maximum hours of service
to eleven and another restricting employee time off under the Family and Medical Leave Act. The rules attracted considerable criticism.
Hours after Obama took office, his administration ordered all executive branch agencies to halt enactment of any rules proposed during the Bush Administration until the incoming administration could review them. According to the environmentalist magazine Grist, these efforts were effective in only a few cases; for other environmental rules the Obama administration tried to reverse some rules through Congress and some through the same slow administrative rulemaking process while interest groups challenged other environmental regulations in the courts.
A subcommittee on administrative law in the Democratic House of Representatives
held a hearing on midnight regulations the month after Obama's inauguration.
Code of Federal Regulations
The Code of Federal Regulations is the codification of the general and permanent rules and regulations published in the Federal Register by the executive departments and agencies of the Federal Government of the United States.The CFR is published by the Office of the Federal Register, an agency...
created by executive branch agencies in the lame duck
Lame duck (politics)
A lame duck is an elected official who is approaching the end of his or her tenure, and especially an official whose successor has already been elected.-Description:The status can be due to*having lost a re-election bid...
period of an outgoing President
President of the United States
The President of the United States of America is the head of state and head of government of the United States. The president leads the executive branch of the federal government and is the commander-in-chief of the United States Armed Forces....
’s administration.
Process of creating new regulations
The United States CongressUnited States Congress
The United States Congress is the bicameral legislature of the federal government of the United States, consisting of the Senate and the House of Representatives. The Congress meets in the United States Capitol in Washington, D.C....
passes laws that sometimes outline only broad policy mandates. Rulemaking
Rulemaking
In administrative law, rulemaking refers to the process that executive and independent agencies use to create, or promulgate, regulations. In general, legislatures first set broad policy mandates by passing statutes, then agencies create more detailed regulations through rulemaking.By bringing...
by the specialist agencies in the executive branch adds necessary detail to these laws. Rulemaking also provides an administration with an opportunity to exert political influence over government without having to go through Congress to change the law.
U.S. federal law mandates a 60-day waiting period before any major regulatory changes become law. Thus, some Presidents try to publish new major regulations on November 21, 60 days before the new President’s inauguration on January 20. “Minor” regulations, or those that have less than US$
United States dollar
The United States dollar , also referred to as the American dollar, is the official currency of the United States of America. It is divided into 100 smaller units called cents or pennies....
100 million in effect on the economy or do not have major social policy significance, have a similar 30-day waiting period. Tom Firey, of the Cato Institute
Cato Institute
The Cato Institute is a libertarian think tank headquartered in Washington, D.C. It was founded in 1977 by Edward H. Crane, who remains president and CEO, and Charles Koch, chairman of the board and chief executive officer of the conglomerate Koch Industries, Inc., the largest privately held...
's Regulation
Regulation (magazine)
Regulation is a quarterly periodical about policy published by the Cato Institute. It was started in 1977 by the American Enterprise Institute and acquired by Cato in 1989. Past editors have included current Supreme Court justice Antonin Scalia, Murray Weidenbaum, Christopher DeMuth, Walter...
magazine, argues that most midnight regulations are in fact primarily political symbolism rather than major regulatory change. Regulations that have not yet become law can be placed on hold by the incoming President.
Regulations that take effect before a new President takes office can still be reversed by the same executive agencies, but this requires a considerable rule-making process. In addition, reversing recently enacted regulations may distract an incoming administration from its own regulatory agenda. Alternatively, because regulations are executive branch agencies’ interpretations of statutes passed by Congress
United States Congress
The United States Congress is the bicameral legislature of the federal government of the United States, consisting of the Senate and the House of Representatives. The Congress meets in the United States Capitol in Washington, D.C....
, Congress can effectively overturn the regulations by passing more explicit statutory mandates. But in each case the period in which the disfavored regulations are law may permit undesired results to take place. For example, a heavily-polluting power plant could be built in the period that a federal regulation is law. A third option is for Congress to overturn the regulation under the Congressional Review Act
Congressional Review Act
The Congressional Review Act , was enacted by the United States Congress as section 251 of the Contract with America Advancement Act of 1996 , also known as the Small Business Regulatory Enforcement Fairness Act of 1996...
of 1996, requiring congressional approval for any similar rule issued in the future. Of the 50,000 regulations enacted since the Act was passed, only one has been so overturned.
History
Jimmy Carter
James Earl "Jimmy" Carter, Jr. is an American politician who served as the 39th President of the United States and was the recipient of the 2002 Nobel Peace Prize, the only U.S. President to have received the Prize after leaving office...
’s single term as President. Carter’s administration set a new record for midnight regulations by publishing more than 10,000 pages of new rules between Election Day and Ronald Reagan
Ronald Reagan
Ronald Wilson Reagan was the 40th President of the United States , the 33rd Governor of California and, prior to that, a radio, film and television actor....
's Inauguration Day. The term is an allusion to the “midnight judges
Midnight Judges
The Midnight Judges Act represented an effort to solve an issue in the U.S. Supreme Court during the early 19th century. There was concern, beginning in 1789, about the system that required the justices of the Supreme Court to “ride circuit” and reiterate decisions made in the appellate level...
” appointed by John Adams
John Adams
John Adams was an American lawyer, statesman, diplomat and political theorist. A leading champion of independence in 1776, he was the second President of the United States...
in the final months of his presidency.
Due to the phenomenon of midnight regulations, since 1948, during the period between a presidential election and the inauguration of a president of a different party
Political party
A political party is a political organization that typically seeks to influence government policy, usually by nominating their own candidates and trying to seat them in political office. Parties participate in electoral campaigns, educational outreach or protest actions...
, the Federal Register
Federal Register
The Federal Register , abbreviated FR, or sometimes Fed. Reg.) is the official journal of the federal government of the United States that contains most routine publications and public notices of government agencies...
has averaged 17 percent more pages than during the same period in non-election years. Presidents George H. W. Bush
George H. W. Bush
George Herbert Walker Bush is an American politician who served as the 41st President of the United States . He had previously served as the 43rd Vice President of the United States , a congressman, an ambassador, and Director of Central Intelligence.Bush was born in Milton, Massachusetts, to...
, Bill Clinton
Bill Clinton
William Jefferson "Bill" Clinton is an American politician who served as the 42nd President of the United States from 1993 to 2001. Inaugurated at age 46, he was the third-youngest president. He took office at the end of the Cold War, and was the first president of the baby boomer generation...
, and George W. Bush
George W. Bush
George Walker Bush is an American politician who served as the 43rd President of the United States, from 2001 to 2009. Before that, he was the 46th Governor of Texas, having served from 1995 to 2000....
have made the most extensive use of midnight regulations, mainly because the incoming President in all three cases was of the opposing party.
Clinton
The Clinton AdministrationPresidency of Bill Clinton
The United States Presidency of Bill Clinton, also known as the Clinton Administration, was the executive branch of the federal government of the United States from January 20, 1993 to January 20, 2001. Clinton was the first Democratic president since Franklin D. Roosevelt to win a second full term...
enacted a flurry of rules limiting logging and lead paint, raising appliance energy efficiency, and tightening privacy of medical records. One of Clinton's midnight regulations imposed a more stringent drinking water standard for arsenic after years of EPA
United States Environmental Protection Agency
The U.S. Environmental Protection Agency is an agency of the federal government of the United States charged with protecting human health and the environment, by writing and enforcing regulations based on laws passed by Congress...
study. Although Bush suspended the new regulation upon taking office, EPA head Christine Todd Whitman
Christine Todd Whitman
Christine Todd "Christie" Whitman is an American Republican politician and author who served as the 50th Governor of New Jersey from 1994 to 2001, and was the Administrator of the Environmental Protection Agency in the administration of President George W. Bush from 2001 to 2003. She was New...
eventually approved it. When President George W. Bush took office in 2001, his administration acted to block the implementation of 90 final rules that were issued in the final months of the Clinton administration
Presidency of Bill Clinton
The United States Presidency of Bill Clinton, also known as the Clinton Administration, was the executive branch of the federal government of the United States from January 20, 1993 to January 20, 2001. Clinton was the first Democratic president since Franklin D. Roosevelt to win a second full term...
but that had not yet gone into effect.
George W. Bush
Barack Obama
Barack Hussein Obama II is the 44th and current President of the United States. He is the first African American to hold the office. Obama previously served as a United States Senator from Illinois, from January 2005 until he resigned following his victory in the 2008 presidential election.Born in...
took office and could prevent the rules from becoming law. Bush Chief of Staff
White House Chief of Staff
The White House Chief of Staff is the highest ranking member of the Executive Office of the President of the United States and a senior aide to the President.The current White House Chief of Staff is Bill Daley.-History:...
Joshua Bolten encouraged timely passage of the rules in a May 2008 memo to agencies suggesting that final versions be submitted by November 1. Finalized and proposed rules included:
- A finalized rule effectively deregulates industrial farmsFactory farmingFactory farming is a term referring to the process of raising livestock in confinement at high stocking density, where a farm operates as a factory — a practice typical in industrial farming by agribusinesses. The main products of this industry are meat, milk and eggs for human consumption...
- An adopted rule opens up public land to drilling preliminary to the development of oil shaleOil shaleOil shale, an organic-rich fine-grained sedimentary rock, contains significant amounts of kerogen from which liquid hydrocarbons called shale oil can be produced...
extraction - A proposed rule provides for a conscience clauseConscience Clause (medical)Conscience clauses are clauses in laws in some parts of the United States which permit pharmacists, physicians, and other providers of health care not to provide certain medical services for reasons of religion or conscience. Those who choose not to provide services may not be disciplined or...
for workers at hospitals receiving federal money (particularly state hospitals), allowing them to refuse to perform abortionAbortionAbortion is defined as the termination of pregnancy by the removal or expulsion from the uterus of a fetus or embryo prior to viability. An abortion can occur spontaneously, in which case it is usually called a miscarriage, or it can be purposely induced...
s or dispense contraceptives
Several other rules were already adopted in late 2008, including one increasing truck driver
Truck driver
A truck driver , is a person who earns a living as the driver of a truck, usually a semi truck, box truck, or dump truck.Truck drivers provide an essential service to...
s' maximum hours of service
Hours of service
The hours of service are regulations issued by the Federal Motor Carrier Safety Administration governing the working hours of anyone operating a commercial motor vehicle in the United States for the purpose of "interstate commerce"— moving commercial goods from one U.S. state to another...
to eleven and another restricting employee time off under the Family and Medical Leave Act. The rules attracted considerable criticism.
Hours after Obama took office, his administration ordered all executive branch agencies to halt enactment of any rules proposed during the Bush Administration until the incoming administration could review them. According to the environmentalist magazine Grist, these efforts were effective in only a few cases; for other environmental rules the Obama administration tried to reverse some rules through Congress and some through the same slow administrative rulemaking process while interest groups challenged other environmental regulations in the courts.
A subcommittee on administrative law in the Democratic House of Representatives
United States House of Representatives
The United States House of Representatives is one of the two Houses of the United States Congress, the bicameral legislature which also includes the Senate.The composition and powers of the House are established in Article One of the Constitution...
held a hearing on midnight regulations the month after Obama's inauguration.