Boston University School of Law
There is a documented increase in the volume of regulatory activity during the last 90 days of presidential administrations. The phenomenon of late-term regulatory activity has been called “Midnight Regulation” based on a comparison to the Cinderella story in which the magic wears off at the stroke of midnight. This Report, prepared for the Administrative Conference of the United States, looks closely at one species of Midnight Regulation, namely Midnight Rules, promulgated in the last 90 days of an administration. The Report examines the phenomenon and concludes with recommendations adopted by the Administrative Conference of the United States at its plenary session on June 14-15, 2012. The Report provides ample evidence that the Midnight Rulemaking phenomenon is real. The Report describes and analyzes the legality of methods incoming administrations have used to deal with the Midnight Rules of the prior administration. The Report concludes that the problem of Midnight Rulemaking is less serious than popular discussion of the issue might lead one to believe, mainly because the vast majority of rules, even those adopted during the midnight period, are routine and necessary to keep the government moving forward. Nonetheless, some moderate reforms would be desirable, mainly enhancing the power of incoming administrations to deal with the prior administration’s midnight rules. Reform would resolve legal uncertainties regarding incoming administrations’ power to deal with Midnight Rules and ameliorate some of the negative public perceptions of the phenomenon.
Jack M. Beermann,
Midnight Rules: A Reform Agenda,
Boston University School of Law, Public Law Research Paper Series
Available at: https://scholarship.law.bu.edu/faculty_scholarship/61