Midnight regulations

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Midnight regulations is a term for United States federal government regulations promulgated by executive branch agencies in the lame duck period of an outgoing President’s administration. The term entered the lexicon in 1980-81, during the final months of Jimmy Carter’s single term as President;^[1] Carter’s administration set a new record for midnight regulations^[1] by publishing more than 10,000 pages of new rules between Election Day and Inauguration Day.^[2] The term is an allusion to the “midnight judges” appointed by John Adams in the final months of his presidency.^[2]

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, those that have less than US$100 million in effect on the economy or do not have major social policy significance,^[3] have a similar 30-day waiting period. Regulations that have not become law can be placed on hold by the incoming President.^[4] 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.^[1][5]

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.^[3] 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 brief period that a federal regulation is law.^[2] 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.^[6]

Presidents Bill Clinton, George H. W. Bush, and George W. Bush have made the most extensive use of midnight regulations.^[2] The Clinton Administration enacted a flurry of rules limiting logging and lead paint, raising appliance energy efficiency, and tightening privacy of medical records.^[7] 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.^[2] 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.^[8]

The Bush administration has also approved thousands of pages of dozens of new agency rules.^[9] Many of these regulations were in the hope of ensuring enactment before Barack Obama takes office and can 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.^[8] Finalized and proposed rules include:^[3]

• A finalized rule effectively deregulates industrial farms so that they can discharge animal waste into waterways.
• An adopted rule opens up public land to drilling preliminary to the development of oil shale extraction.
• A proposed rule provides for a conscience clause for workers at hospitals receiving federal money (particularly state hospitals), allowing them to refuse to perform abortions or dispense contraceptives.

Several other rules have already been adopted, including one increasing truck drivers' maximum hours of service to eleven and another restricting employee time off under the Family and Medical Leave Act.^[10] The rules have attracted considerable criticism.^[11]

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