Midnight regulations are
United States federal government
The federal government of the United States (U.S. federal government or U.S. government) is the Federation#Federal governments, national government of the United States, a federal republic located primarily in North America, composed of 50 ...
regulations
Regulation is the management of complex systems according to a set of rules and trends. In systems theory, these types of rules exist in various fields of biology and society, but the term has slightly different meanings according to context. For ...
created by
executive branch
The Executive, also referred as the Executive branch or Executive power, is the term commonly used to describe that part of government which enforces the law, and has overall responsibility for the governance of a State (polity), state.
In poli ...
agencies during the
transition period
The Brexit withdrawal agreement, officially titled Agreement on the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community, is a treaty between the European Uni ...
of an outgoing
president
President most commonly refers to:
*President (corporate title)
*President (education), a leader of a college or university
*President (government title)
President may also refer to:
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's administration.
Process of creating new regulations
The
United States Congress
The United States Congress is the legislature of the federal government of the United States. It is bicameral, composed of a lower body, the House of Representatives, and an upper body, the Senate. It meets in the U.S. Capitol in Washing ...
passes laws that sometimes outline only broad policy mandates.
Rulemaking
In administrative law, rulemaking is 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 deta ...
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
In government and politics, inauguration is the process of swearing a person into office and thus making that person the incumbent. Such an inauguration commonly occurs through a formal ceremony or special event, which may also include an inaugu ...
on January 20. "Minor" regulations, or those that have less than
US$
The United States dollar (symbol: $; code: USD; also abbreviated US$ or U.S. Dollar, to distinguish it from other dollar-denominated currencies; referred to as the dollar, U.S. dollar, American dollar, or colloquially buck) is the official ...
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
The Cato Institute is an American libertarian think tank headquartered in Washington, D.C. It was founded in 1977 by Ed Crane, Murray Rothbard, and Charles Koch, chairman of the board and chief executive officer of Koch Industries.Koch Indust ...
's ''
Regulation
Regulation is the management of complex systems according to a set of rules and trends. In systems theory, these types of rules exist in various fields of biology and society, but the term has slightly different meanings according to context. For ...
'' 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
A congress is a formal meeting of the representatives of different countries, constituent states, organizations, trade unions, political parties, or other groups. The term originated in Late Middle English to denote an encounter (meeting of a ...
, 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
The Congressional Review Act (CRA) is a law that was enacted by the United States Congress under House Speaker Newt Gingrich as Subtitle E of the Contract with America Advancement Act of 1996 () and signed into law by President Bill Clinton on Marc ...
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 fifteen had been so overturned.
History
![Jimmy Carter](https://upload.wikimedia.org/wikipedia/commons/4/4c/Jimmy_Carter.jpg)
The term "midnight regulation" entered the lexicon in 1980–81, during the final months of
Jimmy Carter
James Earl Carter Jr. (born October 1, 1924) is an American politician who served as the 39th president of the United States from 1977 to 1981. A member of the Democratic Party (United States), Democratic Party, he previously served as th ...
's single term as president.
[Antony Davies and Veronique de Rugy (March 2008), Midnight Regulations: An Update, Mercatus Center, George Washington University, Working Paper No. 08-06](_blank)
/ref> 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 Wilson Reagan ( ; February 6, 1911June 5, 2004) was an American politician, actor, and union leader who served as the 40th president of the United States from 1981 to 1989. He also served as the 33rd governor of California from 1967 ...
's Inauguration Day. The term is an allusion to the "midnight judges
The Midnight Judges Act (also known as the Judiciary Act of 1801; , and officially An act to provide for the more convenient organization of the Courts of the United States) represented an effort to solve an issue in the U.S. Supreme Court during t ...
" appointed by John Adams
John Adams (October 30, 1735 – July 4, 1826) was an American statesman, attorney, diplomat, writer, and Founding Fathers of the United States, Founding Father who served as the second president of the United States from 1797 to 1801. Befor ...
in the final months of his presidency.[
Due to midnight regulations, since 1948, during the period between a presidential election and the inauguration of a president of a different ]party
A party is a gathering of people who have been invited by a host for the purposes of socializing, conversation, recreation, or as part of a festival or other commemoration or celebration of a special occasion. A party will often feature f ...
, the ''Federal Register
The ''Federal Register'' (FR or sometimes Fed. Reg.) is the official journal of the federal government of the United States that contains government agency rules, proposed rules, and public notices. It is published every weekday, except on feder ...
'' has averaged 17 percent more pages than during the same period in non-election years.[
]
Bill Clinton
The Clinton administration
Bill Clinton's tenure as the 42nd president of the United States began with his first inauguration on January 20, 1993, and ended on January 20, 2001. Clinton, a Democrat from Arkansas, took office following a decisive election victory over Re ...
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
The Environmental Protection Agency (EPA) is an independent executive agency of the United States federal government tasked with environmental protection matters. President Richard Nixon proposed the establishment of EPA on July 9, 1970; it be ...
study. Although Bush suspended the new regulation upon taking office, EPA head Christine Todd Whitman
Christine Temple Whitman (née Todd; born September 26, 1946) is an American politician and author who served as the 50th governor of New Jersey from 1994 to 2001 and as Administrator of the Environmental Protection Agency in the administration o ...
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
Bill Clinton's tenure as the 42nd president of the United States began with his first inauguration on January 20, 1993, and ended on January 20, 2001. Clinton, a Democrat from Arkansas, took office following a decisive election victory over Re ...
but that had not yet gone into effect.[
]
George W. Bush
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
Barack Hussein Obama II ( ; born August 4, 1961) is an American politician who served as the 44th president of the United States from 2009 to 2017. A member of the Democratic Party, Obama was the first African-American president of the U ...
took office and could prevent the rules from becoming law. Bush Chief of Staff
The title chief of staff (or head of staff) identifies the leader of a complex organization such as the armed forces, institution, or body of persons and it also may identify a principal staff officer (PSO), who is the coordinator of the supporti ...
Joshua Bolten
Joshua Brewster Bolten (born August 16, 1954) is an American lawyer and politician. Bolten served as the White House Chief of Staff to U.S. President George W. Bush, replacing Andrew Card on April 14, 2006. Previously, he served as the Director o ...
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 that effectively deregulates industrial farms
* An adopted rule that opens up public land to drilling preliminary to the development of oil shale
Oil shale is an organic-rich fine-grained sedimentary rock containing kerogen (a solid mixture of organic chemical compounds) from which liquid hydrocarbons can be produced. In addition to kerogen, general composition of oil shales constitute ...
extraction
* A proposed rule that provides for a conscience clause for workers at hospitals receiving federal money (particularly state hospitals), allowing them to refuse to perform abortion
Abortion is the termination of a pregnancy by removal or expulsion of an embryo or fetus. An abortion that occurs without intervention is known as a miscarriage or "spontaneous abortion"; these occur in approximately 30% to 40% of pregn ...
s or dispense contraceptive
Birth control, also known as contraception, anticonception, and fertility control, is the use of methods or devices to prevent unwanted pregnancy. Birth control has been used since ancient times, but effective and safe methods of birth contr ...
s
Several other rules were already adopted in late 2008, including one increasing truck driver
A truck driver (commonly referred to as a trucker, teamster, or driver in the United States and Canada; a truckie in Australia and New Zealand; a HGV driver in the United Kingdom, Ireland and the European Union, a lorry driver, or driver in ...
s' maximum hours of service
Hours of Service (HOS) regulations are issued by the Federal Motor Carrier Safety Administration (FMCSA) and govern the working hours of anyone operating a commercial motor vehicle (CMV) in the United States. These regulations apply to truck dr ...
to eleven and another restricting employee time off under the Family and Medical Leave Act
The Family and Medical Leave Act of 1993 (FMLA) is a United States labor law requiring covered employers to provide employees with job-protected, unpaid leave for qualified medical and family reasons. The FMLA was a major part of President Bill C ...
. 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
Grist is grain that has been separated from its chaff in preparation for grinding. It can also mean grain that has been ground at a gristmill. Its etymology derives from the verb ''grind.''
Grist can be ground into meal or flour, depending on ho ...
'', 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
House of Representatives is the name of legislative bodies in many countries and sub-national entitles. In many countries, the House of Representatives is the lower house of a bicameral legislature, with the corresponding upper house often c ...
held a hearing on midnight regulations the month after Obama's inauguration.
Barack Obama
The Obama administration
Barack Obama's tenure as the 44th president of the United States began with his first inauguration on January 20, 2009, and ended on January 20, 2017. A Democrat from Illinois, Obama took office following a decisive victory over Republican ...
recognized the potential for midnight regulations as early as the end of 2015. Howard Shelanski
Howard Shelanski (born 1964) is an American attorney, economist, and legal scholar. He is a professor of law at Georgetown University and a partner in the law firm of Davis, Polk & Wardwell. He served in the Obama administration as administrator ...
, the Administrator for the Office of Information and Regulatory Affairs
The Office of Information and Regulatory Affairs (OIRA ) is a Division within the Office of Management and Budget (OMB), which in turn, is within the Executive Office of the President. OIRA oversees the implementation of government-wide policie ...
(OIRA), issued a memo to federal agencies directing them to: “To the extent feasible and consistent with your priorities, statutory obligations, and judicial deadlines, however, agencies should strive to complete their highest priority rulemakings by the summer of 2016 to avoid an end-of-year scramble that has the potential to lower the quality of regulations that OIRA receives for review and to tax the resources available for interagency review.” In the Obama Administration’s fina
Unified Agenda
there wer
25 notable rules
in the “midnight period” with combined regulatory cost estimates (from the “proposed rule” versions) of approximately $44.1 billion.
Starting in November 2016 (the first month of the Obama “midnight period”), OIRA concluded review of 57 rule-makings – a 26 percent increase over the monthly pace from the rest of 2016. Fourteen of these measures were “economically significant” rule-makings. That represents the second-highest total in any November “midnight period” since at least 1996. Notable rulemakings from November 2016 include:
* Conservation Standards for Ceiling Fans
* Revision of Nutrition Facts for Meat and Poultry
* Passenger Equipment Safety Standards
* Renewable Fuel Standards for 2017
House Republicans introduced legislation that would provide a check upon Obama administration midnight rules. Representative Darrell Issa
Darrell Edward Issa ( ; born November 1, 1953) is an American businessman and politician who has served as the U.S. representative for California's 50th congressional district since 2021. A member of the Republican Party, he previously served i ...
introduce
H.R. 5982
or the “Midnight Rules Relief Act of 2016”, that “amends the Congressional Review Act
The Congressional Review Act (CRA) is a law that was enacted by the United States Congress under House Speaker Newt Gingrich as Subtitle E of the Contract with America Advancement Act of 1996 () and signed into law by President Bill Clinton on Marc ...
to allow Congress to consider a joint resolution to disapprove multiple regulations that federal agencies have submitted for congressional review within the last 60 legislative days of a session of Congress during the final year of a President's term.” The bill passed in the House of Representatives
House of Representatives is the name of legislative bodies in many countries and sub-national entitles. In many countries, the House of Representatives is the lower house of a bicameral legislature, with the corresponding upper house often c ...
by a vote of 240–179.
Senator Ron Johnson
Ronald Harold Johnson (born April 8, 1955) is an American accountant, businessman, and politician serving as the senior United States senator from Wisconsin, a seat he has held since 2011. A Republican, Johnson was first elected to the U.S. Se ...
has written letters to Shelanski and multiple other agencies asking them to put a hold on regulatory activity during this “midnight period”.
References
{{reflist
United States administrative law
United States presidential transitions