What could motivate the Obama administration to publish more than a year’s worth of regulatory burdens in its last 48 days? Most analysts would credit this to “midnight regulation,” the outgoing White House’s attempt to issue rules it favors before leaving office, especially when the incoming administration is from the opposing political party. Defenders of the Obama administration claim its midnight regulations were typical of the waning moments of any administration. On this they are not quite right; though previous outgoing administrations had similar tallies for the “midnight” period ranging from Election Day to the inauguration, Obama’s administration still set a record for regulatory output in December and broke its own record for major regulations issued in a calendar year.

2016 in perspective / Before the election, the Obama administration’s rulemaking was not dissimilar to other final years of previous administrations. The Office of Information and Regulatory Affairs (OIRA), which is charged with reviewing and approving executive agency actions, discharged an average of 45 rulemakings per month during the last eight years. During the first 10 months of 2016 that average held constant, with 45 rules leaving OIRA per month.

Immediately after the election and the surprise defeat of Hillary Clinton, the rate of new rules ratcheted up a bit, with 57 in November. That isn’t dramatically above the average, but it included some controversial actions, including new fracking rules from the Department of Interior and the renewable fuels standards for 2017 and 2018.

That uptick was just the beginning, however. In December, OIRA concluded review of 99 regulations, more than double its average monthly pace and more than in any December since 1993. What’s more, comparing rules in 1993 and previous years to today is misleading because back then OIRA typically scrutinized all regulations, not just rules deemed “significant” (meaning they would have an economic effect of $100 million or more) or could be significant, as is the practice today.

Previous outgoing administrations have had similar “midnight” tallies, but Obama’s administration set a record for regulatory output in December.

Last December, there were several days of breakneck regulatory output: on December 2nd, OIRA approved nine regulations, including a $12.3 billion direct final rule (which means there was no earlier proposal) that adds efficiency standards for central air conditioners. On December 16th, OIRA discharged nine additional regulations, including a $630 million proposed rule to limit beryllium exposure. In all, the administration issued 19 economically significant regulations in December 2016 compared to just 11 the previous December.

The final days of the Obama administration produced more rules at the same frenzied pace. In just 12 working days in January, it published 65 regulations totaling $13.5 billion in long-term costs—more than $1 billion in regulatory burdens per day. Taken together, the Obama administration’s regulators released $157 billion in regulations in the last two months of its existence, with $41 billion from final rules alone. The Obama administration imposed more regulatory costs post-election than it did in all of 2013.

Historical norms / Every White House rushes out last-minute regulations before departing; the only difference is the extent of this push. Figure 1 displays the aggregate number of regulations released and the amount of significant regulation in the midnight period.

The last three outgoing administrations are almost carbon copies of each other. The Obama administration put out slightly more last-minute regulations than did the Clinton administration, but the rush to regulate just before the White House changes political party is profound and independent of party.

The significant increase in regulation at the tail end of 2016 helped the Obama administration garner a second record for most major regulations in a term in office. The Clinton administration averaged roughly 71 major rules annually. That number dropped to 62 major regulations per annum during President George W. Bush’s tenure. Although the tally is not yet complete, President Obama’s White House averaged 86 major rules, a figure driven by 2010’s then-record 100 major rules, which the administration went on to surpass in 2016 with 115 major rules. For comparison’s sake, it is worth noting that total is more than double the number of major rules produced in 2002.

No midnight at all? / Over the final months of 2016, some—the group Public Citizen, for one—have attempted to dispel the notion that administrations issue more regulations in their waning days or that the Obama administration did anything of the sort. To provide some relevant data on this debate, we contrast the regulatory activity in October 2012, the month before President Obama’s reelection, with December 2016.

While career staffers, ostensibly independent of political forces, do the bulk of the work on any administration’s regulatory agenda, the political actors control the output and timing of federal rules. These two months demonstrate how the political winds control the floodgates for federal rules. In October 2012, immediately preceding the election, OIRA approved a mere four regulations, and only one significant regulation that was from the Department of Education. No doubt, that helped the president avoid controversy just before Americans went to the polls. By December 2012, after President Obama was safely reelected, the administration released 34 rules, a pace approaching a “normal” month of regulation. Fast forward to December 2016, after the unexpected election of Donald Trump, and regulators moved 99 rules and 19 significant measures through the process.

FIGURE 1
MIDNIGHT REGULATIONS BY ADMINISTRATION
Number of midnight regulations and “significant” regulations under the last three presidents

NOTE: “Significant” regulations are regulations with an estimated impact of $100 million or more.

If policy and the wisdom of technical experts at agencies held sway, the regulatory output would have little correlation with the political cycle. A cursory observation of the data is all that is necessary to realize this is certainly not the case.

Rushed regulations / Some of the recent debate over midnight regulation centers around whether midnight rules are “rushed,” reducing their quality. The data suggest that several rules went through the process in recent months in an unusually short period. During the last two months of the Obama administration, regulators issued nine interim final rules and two direct final rules, three of which were significant. The total cost of those rules eclipsed $18 billion, including two expensive energy efficiency measures for air conditioners and pool pumps. None of these allowed for any prior comment period.

The average OIRA review period for these measures was just 39 days, which is roughly half the average review time in 2016. Such truncated review isn’t unique to the Obama administration. The George W. Bush administration issued 20 interim final rules in its waning days, including five economically significant measures. The average OIRA review time for those rules was 37 days, compared to a 2008 average of 61 days.

The average review time for midnight rulemakings during the entire Obama era was 82 days, a reasonable period typical during other administrations that in no way suggests any “rush” through OIRA. There were, however, several rules that had been in the process for months, generating “outlier” review periods that lasted longer than 300 days. These lingering rulemakings drove up the average, as the median review time was 59 days.

Rules linger in regulatory purgatory for numerous reasons. Sometimes the delay owes to political machinations or an agency prioritizing other efforts elsewhere, or to waiting for new data or trying to figure out how to address an obvious deficiency. The confluence of these factors, combined with political exigencies, made it a historic time for midnight regulation.

Yet, the examples above demonstrate that for some rules, quick review times and direct final rules are necessary to implement the last vestiges of administration policy. On net, it’s true the average length of time for completion of a midnight rule is little different than a non-midnight rule. But the sheer volume of regulation often masks the outliers, the direct and interim final rules that highlight the midnight period. That roughly a dozen rules during the Obama era were rushed without public comment should be enough to convince the public that midnight regulation is no myth and provide sufficient motivation for Congress to scrutinize and perhaps repeal these measures.

Nothing new under the sun / Four years ago in these pages, our article “No Midnight After this Election” highlighted the lack of regulatory output following the 2012 election. We explained that lack indicated the Obama administration’s confidence in reelection and policy continuation. In contrast, the surprise election of Trump—a candidate from the opposition political party who promised to undo much of the Obama agenda—provided more than enough motivation for the outgoing administration to double its average monthly output of rules.

We find it troubling that some commentators explicitly dismissed the Obama administration’s rushed regulatory agenda in the final days. Even a cursory examination of the data show that this was precisely what was happening, just as previous administrations had done the same. It’s troubling to think why this was disputed—and why the media largely chose to ignore it.