The Midnight Is Dark and Full of Terrors: Last-Minute Regulations

It sounds spooky, and by extension, it must be bad—so say those who want to stop “midnight regulation,” broadly defined as the surge of regulatory activity that happens at the end of every administration.

Yesterday, House Republicans incorporated provisions designed to stop midnight regulations into a package of federal workforce changes (H.R. 4361) that ironically passed the House near midnight.

The provisions, sponsored by Rep. Tim Walberg (R-Mich.), would establish a moratorium period from Election Day through Inauguration Day. Generally, the bill would prohibit agencies from proposing or adopting any “midnight rule” during the moratorium period.

Midnight clouds

But before the bill had even hit the floor, the White House issued a veto threat citing a variety of concerns. Among them: The so-called midnight rule provisions in this bill would infringe on the constitutional powers of the president to faithfully execute the laws in the final months of his term.

So are midnight regulations really such a bad thing?

According to the Mercatus Center at George Mason University, the surge in regulatory activity often includes sweeping and controversial regulations that are hard to repeal once approved. During this period, the quality of the agencies’ regulatory analysis drops and regulatory oversight by the Office of Information and Regulatory Affairs weakens, Mercatus scholars say.

A spreadsheet labeled “potential midnight regulations” on the Mercatus website, last updated May 18, lists 49 major regulations that could be finalized by the end of this administration. Two have been pending since 2010 and two since 2011.

On the other side, in June 2012, the Administrative Conference of the U.S. adopted a recommendation on midnight rules, citing a documented increase in the volume of regulatory activity during the last months of presidential terms.

“However, the perception of midnight rulemaking as an unseemly practice is worse than the reality,” ACUS members said.

A “dispassionate look” at midnight rules issued by past administrations of both political parties reveals that most were under active consideration long before the November election, ACUS said. And many of the rules were relatively routine matters not implicating new policy initiatives by incumbent administrations, they said.

In short, “shutting the rulemaking process down during this period would be impractical given that numerous agency programs require constant regulatory activity, often with statutory deadlines,” ACUS concluded.