As presidential administrations wind down during their “lame duck” period, the executive’s decrease in political influence in Congress has historically been accompanied by a significant increase in the amount of regulations published by executive regulatory agencies. This is particularly true for the final three months between Election Day and Inauguration Day.

This flurry of last-minute regulatory activity, identified as early as the final months of the Jimmy Carter administration, is known as the “midnight period.” Midnight rules are so named because they are the result of an executive fully exercising its power to influence policy through regulation in a rush to beat the “stroke of midnight” on Inauguration Day, which removes its political power—like Cinderella’s magic running out as she leaves the ball.

Two important things to consider regarding President Obama’s probable upcoming spike in regulatory output are the number of regulations likely to be issued during the administration’s final months and the response of the incoming administration. In this article, I compare Obama’s current regulatory output with his predecessors’, under the theory that the difference may predict how Obama’s midnight period will compare to those predecessors. I also describe the tools available to both the next president and Congress to respond to a last-minute surge in regulations.

Differences between presidents / The phenomenon of midnight rulemaking affects the amount of time and regulatory oversight these rules receive before being published. This has direct implications for the quality of review that the Office of Information and Regulatory Affairs (OIRA) is able to provide. Additionally, this last-minute rush to publish can reduce the time allowed for public comment during rulemaking and the time that regulatory agencies have to seriously consider those comments and use the public’s input to improve the quality of their regulatory analysis.

In order to get a better sense of what the next midnight period might mean for the quality of regulatory oversight, it is important to compare President Obama’s current regulatory output to his predecessors’. Since Presidents Bill Clinton and George W. Bush both served for eight years, I can compare the volume of regulations published during their tenures in office and overlay them with President Obama’s pace through January of 2016. See Figure 1.

I focus my comparison on economically significant rules: those defined in Executive Order 12866 as likely to have “an annual effect on the economy of $100 million or more.” These rules are important not only because of their economic effect, but also because studies have shown that every additional economically significant rule submitted to OIRA during the midnight period decreases the mean review time of all regulations by almost a full day.

In addition to comparing the cumulative number of economically significant regulations published each month, I examine the last quarter of every president’s time in office, which I define here as the midnight quarter, and compare them to non-midnight quarters to illustrate the level of increase in regulatory output across administrations. See Figure 2.

Economically significant regulations / I tracked the cumulative number of economically significant rules published by the previous two administrations and overlaid the data with President Obama’s regulatory output through January 2016. Note that because of a lag in recording publication dates, this may understate the number of published rules in recent months. I began counting rules as of the February after Inauguration Day for each president, because any regulations published in the Federal Register during the last week of January, immediately after Inauguration, are likely to be the midnight regulations from prior administrations.

Over their eight-year terms, Clinton issued a total of 361 economically significant rules and Bush issued 358. As of the end of January 2016, Obama had 393, with 12 months remaining in his administration.

The fall 2015 Unified Agenda includes 95 economically significant rules currently slated for publication before the end of Obama’s term. If these final rules are all issued on schedule, his eight-year total would be 462. The Unified Agenda serves as a good indicator for upcoming regulatory output, but the actual number of published rules could be lower if agencies don’t finish the rules they are working on—or higher if something unexpected arises.

Midnight rules / To illustrate the increase in rules issued during the midnight quarter, it is useful to compare regulatory activity in this three-month window with comparable “final quarters” (November, December, and January) during non-midnight periods. President Clinton averaged 8.5 economically significant rules in each of his non-midnight final quarters, and issued a total of 38 economically significant rules during his midnight quarter—4.5 times the average for the other final quarters. President Bush averaged 11.4 economically significant rules per quarter for non-midnight final quarters, and issued 35 economically significant rules during his midnight quarter—roughly three times the average for other final quarters. President Obama has not reached his midnight period, but he currently averages around 15 economically significant rules per quarter for non-midnight final quarters.

Response of the incoming executive / Ever since Ronald Reagan entered the Oval Office after Carter’s midnight quarter—which had a regulatory increase of roughly 40 percent compared to Carter’s previous final quarters in office—presidents have taken measures to halt the prior administration’s midnight regulations and evaluate them. This begins the process of balancing the tradeoffs between looking back, which requires expending political capital to overturn those regulations most out of sync with the new administration’s policy goals, and looking ahead, which allows the new administration to begin implementing its regulatory priorities.

Although the responses differ slightly among incoming administrations, the actions taken usually involve a memorandum issued by the newly elected president’s chief of staff to the heads of regulatory agencies instructing them to put an immediate freeze on publishing any new rules in the Federal Register, withdraw rules currently under OIRA review, and extend by 60 days the effective date of any rules already published but not yet in effect.

Response by Congress / In addition to these executive actions, Congress also has the ability to exercise its legislative powers under the Congressional Review Act (CRA) to rescind federal regulations published during the last 60 session days of the previous legislative session. This would include any of the aforementioned economically significant rules listed in the fall 2015 Unified Agenda.

Interestingly, although thousands of rules have been submitted to Congress for disapproval under the CRA since it was enacted in 1996, only one rule has successfully been rescinded: a Clinton administration midnight Occupational Safety and Health Administration regulation involving workplace ergonomics standards. During the non-midnight periods, lack of congressional disapproval can be credited largely to presidents’ ability to veto the disapproval legislation, requiring a two-thirds congressional majority to override. But when a new Congress convenes after a midnight period, it may face a very different dynamic: a congressional resolution disapproving a rule issued at the end of one president’s term is less likely to be vetoed by the incoming president. The possible absence of a presidential veto means that Congress would only be required to muster a simple majority in each house in order to pass a joint resolution of disapproval.

Conclusion / President Obama’s regulatory output to date has already surpassed both of his predecessors, and it is understandable that observers are carefully considering the possible effects of a surge in rules published within this administration’s midnight period. A significant increase in regulatory output is likely to reduce the amount of time available for agencies to seriously consider public comment, affect the quality of oversight that OIRA is able to provide, and also add considerable political constraints on the incoming administration.

Readings

• “Regulatory Activity in the Bush Administration at the Stroke of Midnight,” by Susan E. Dudley. Engage, Vol. 10 (2009).
• “Reversing Midnight Regulations,” by Susan E. Dudley. Regulation, Vol. 24, No. 1 (Spring 2001).
• “The Consequences of Midnight Regulations and Other Surges in Regulatory Activity,” by Patrick A. McLaughlin. Public Choice, Vol 147, No. 3 (June 2011).