Midnight Regulations and Regulatory Review

Jerry Brito, George Mason University

Abstract

The term “midnight regulations” describes the dramatic spike of new regulations promulgated at the end of presidential terms, especially during transitions to an administration of the opposite party. As commentators have pointed out, this phenomenon is problematic because it is the result of a lack of presidential accountability during the midnight period—the time after the November election and before Inauguration Day. Midnight regulations, however, present another problem that receives little attention. It is the prospect that an increase in the number of regulations promulgated in a given time-period could overwhelm the institutional review process that serves to ensure that new regulations have been carefully considered, are based on sound evidence, and can justify their cost.

The regulatory review process that every president since Richard Nixon has used to check his own administration’s regulations is now operated by the Office of Information and Regulatory Affairs (OIRA), which is charged with reviewing all proposed new significant regulations. The problem is that while the number of regulations proposed spikes during the midnight period, the resources available to OIRA remain constant.

Although the problem is perennially highlighted in the press, few satisfactory solutions to the phenomenon have been proposed. One possible solution to address the effects of midnight regulation on regulatory review might be to cap the number of regulations agencies may submit to OIRA for review during a given time-period.

Part I of this Article presents updated evidence of the existence of the midnight regulation phenomenon. It reviews the causes of the phenomenon and asks whether increased regulatory output is an effective strategy on the part of outgoing administration. Part II discusses the variety of concerns raised by midnight regulations with a special focus on the lack of proper OIRA oversight during the midnight period. Finally, Part III reviews several proposed solutions to the midnight regulations problem and puts forth our own suggestion to address the effects of midnight regulations on regulatory review.