Midnight Rulemaking: Background and Options for Congress
Released: 2016-10-04T00:00:00

D uring the final months of recent presidential administrations, federal agencies have typically issued a larger number of rules relative to comparable time periods earlier in the administration. This phenomenon is often referred to as "midnight rulemaking." Various scholars and public officials have documented evidence of midnight rulemaking by several recent outgoing administrations, especially for those outgoing administrations that will be replaced by an administration of a different party.

Studies have documented an increase in rulemaking activity as measured in several different ways. This includes, for example, an increase in the number of economically significant rules issued in the final year of several outgoing presidents. Some studies have shown that not only are more regulations finalized at the end of an outgoing President's administration, but more proposed rules (also known as notices of proposed rulemaking, or NPRMs) are issued during that period as well. Additionally, studies have documented an increase in the number of rules reviewed at the Office of Management and Budget during the final months of outgoing administrations, which is suggestive of a last-minute rush to complete the work of the administration.

Overview of Midnight Rulemaking

One possible explanation for the issuance of "midnight rules" is the desire of the outgoing administration to complete its work and achieve certain policy goals before the end of its term of office—what has been termed the "Cinderella effect." As one George W. Bush Administration official said, midnight rulemaking is like "Cinderella leaving the ball. … Presidential appointees hurried to issue last-minute 'midnight' regulations before they turned back into ordinary citizens at noon on January 20 th ." Because it may be difficult to change or eliminate rules after they have taken effect, issuing midnight rules can also help ensure a legacy for a President—especially when an incoming administration is of a different party.

At times, certain rules issued during the last few months of an administration have been considered by some as controversial. For example, when President William J. Clinton was leaving office, his administration issued energy efficiency standards for washing machines and a rule setting ergonomics standards in the workplace. Shortly before the end of President George W. Bush's second term concluded, his administration finalized rules allowing states to determine whether concealed firearms may be carried in national parks and giving agencies greater responsibility to determine when and how their actions may affect species under the Endangered Species Act.

On the other hand, a 2012 study for the Administrative Conference of the United States (ACUS) concluded that many midnight regulations were "relatively routine matters not implicating new policy initiatives by incumbent administrations," and that the "majority of the rules appear to be the result of finishing tasks that were initiated before the Presidential transition period or the result of deadlines outside the agency's control (such as year-end statutory or court-ordered deadlines)." The study cited some evidence of the strategic use of midnight rules to implement certain desired policies before leaving office, but, in general, the study said that "the perception of midnight rulemaking as an unseemly practice is worse than the reality."

Concerns over Midnight Rulemaking

One general concern raised about midnight rulemaking is that an outgoing administration has less political accountability compared to an administration faced with the possibility of re-election. Furthermore, rules that are hurried through at the end of an administration may not have the same opportunity for public input. Agencies may find that in order to issue regulations by the end of an administration, they may not have sufficient time to review and digest public comments taken during the comment period.

Another concern is that the quality of the regulations themselves may suffer during the midnight period, since the departing administration may issue rules quickly, and as a result, the rules may not receive adequate review. For example, one study of midnight rulemaking suggested 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 justify their cost." In particular, this concern is that the Office of Information and Regulatory Affairs (OIRA) in the Office of Management and Budget (OMB) may not have enough staff or resources to conduct full reviews of regulations if OIRA receives a larger number of regulations than usual for review.

Finally, some have argued that the task of evaluating a previous administration's midnight rules can potentially overwhelm a new administration.

Regulatory Moratoria and Postponements Taken by Recent Incoming Presidents

One approach previous Presidents have used to control rulemaking at the start of their administrations has been the imposition of a moratorium on new regulations from executive departments and independent agencies. Such moratoria have sometimes been accompanied by a requirement that the departments and agencies postpone the effective dates of certain rules that were issued at the end of the previous President's term.

Proposed rules that have not been published in the Federal Register as final rules by the time the outgoing President leaves office can be withdrawn by a new administration. However, once final rules have been published in the Federal Register , the only way for a new administration to eliminate or change them is to go through the rulemaking process again (see section below entitled " Eliminating or Changing Midnight Rules ").

Ronald Reagan Administration

On January 29, 1981, shortly after taking office, President Ronald Reagan issued a memorandum to the heads of the Cabinet departments and the EPA Administrator directing them to take certain actions that would give the new administration time to implement a "new regulatory oversight process," particularly for "last-minute decisions" made by the previous administration. Specifically, the memorandum said that agencies must, to the extent permitted by law, (1) publish a notice in the Federal Register postponing for 60 days the effective date of all final rules that were scheduled to take effect during the next 60 days, and (2) refrain from promulgating any new final rules. Executive Order 12291, issued a few weeks later, contained another moratorium on rulemaking that supplemented, but did not supplant, the January 29, 1981, memorandum. Section 7 of the executive order directed agencies to "suspend or postpone the effective dates of all 'major' rules that they have promulgated in final form as of the date of this Order, but that have not yet become effective." Excluded were major rules that could not be legally postponed or suspended, and those that "for good cause, ought to become effective as final rules." Agencies were also directed to prepare a regulatory impact analysis for each major rule suspended or postponed, and to refrain from promulgating any new final rules until a final regulatory impact analysis had been conducted.

William Clinton Administration

On January 22, 1993, Leon E. Panetta, the Director of OMB for the incoming William Clinton Administration, sent a memorandum to the heads and acting heads of Cabinet departments and independent agencies requesting them to (1) not send proposed or final rules to the Office of the Federal Register for publication until they had been approved by an agency head appointed by President Clinton and confirmed by the Senate, and (2) withdraw from the Office of the Federal Register all regulations that had not been published in the Federal Register and that could be withdrawn under existing procedures. The requirements did not apply, however, to any rules that required immediate issuance because of a statutory or judicial deadline. The OMB Director said these actions were needed because it was "important that President Clinton's appointees have an opportunity to review and approve new regulations." In contrast to the Reagan memorandum and Executive Order 12291, the Panetta memorandum did not instruct agencies to postpone the effective dates of any rules.

George W. Bush Administration

On January 20, 2001, Andrew H. Card, Jr., assistant to President George W. Bush and White House Chief of Staff, sent a memorandum to the heads and acting heads of all executive departments and agencies generally directing them to (1) not send proposed or final rules to the Office of the Federal Register, (2) withdraw from the Office rules that had not yet been published in the Federal Register , and (3) postpone for 60 days the effective dates of rules that had been published but had not yet taken effect. The Card memorandum instructed agencies to exclude any rules promulgated pursuant to statutory or judicial deadlines, and to notify the OMB Director of any rules that should be excluded because they "impact critical health and safety functions of the agency." The memorandum indicated that these actions were needed to "ensure that the President's appointees have the opportunity to review any new or pending regulations."

The George W. Bush Administration later issued another memorandum encouraging agencies to complete their rulemakings far before the end of the administration, likely to avoid giving the new President an opportunity to prevent the Bush Administration's midnight rules from being issued or taking effect. On May 9, 2008, White House Chief of Staff Joshua B. Bolten issued a memorandum to the heads of executive departments and agencies stating that, except for "extraordinary circumstances, regulations to be finalized in this Administration should be proposed no later than June 1, 2008, and final regulations should be issued no later than November 1, 2008." He also said the Administrator of OIRA would "coordinate an effort to complete Administration priorities in this final year," and that the Administrator would "report on a regular basis regarding agency compliance with this memorandum."

Despite this initiative and statements from the White House, the number of rules that federal agencies promulgated in the final months of the Bush Administration increased. One indication of this increase is the number of major final rules that were published and sent to the Government Accountability Office (GAO) pursuant to requirements in the Congressional Review Act (CRA, 5 U.S.C. §§801-808). The CRA requires GAO to provide Congress with a report on each final rule that OIRA designates as a "major" rule (e.g., rules with at least a $100 million impact on the economy) within 15 calendar days of the rule being sent to GAO and Congress. During the first six months of the most recent outgoing administration's final year in office (2008), the agencies published a total of 32 major final rules, but in the second six months, the agencies published 63 rules—a 97% increase.

Table 1 presents data on the number of major rules published during the last half of President Bush's and President Clinton's final two years in office. The number of major rules in the second six months of 2008 was higher than the number in the second six months of 2007 (63 major rules in 2008 compared with 41 major rules in 2007—a 54% increase). This increase in the number of major rules published was also apparent in the final months of the Clinton Administration. According to the GAO database, in the final six months of 2000, agencies published 53 major rules. This represented a 77% increase over the same period in the previous year, during which the agencies published 30 major rules.

There was also evidence of "midnight rulemaking" in the increased number of "economically significant" rules that OIRA reviewed pursuant to Executive Order 12866 at the end of the Bush and Clinton Administrations. Table 2 presents data on the number of "economically significant" rules that OIRA reviewed at the end of two administrations. According to the Regulatory Information Service Center, from July 1, 2008, through December 31, 2008, OIRA reviewed a total of 82 "economically significant" rules—a 64% increase when compared to the same period in 2007 (50 rules). During the Clinton Administration, the number of "economically significant" rules went up slightly: OIRA reviewed 53 "economically significant" rules during the final six months of 2000, compared to 48 "economically significant" rules during that period in 1999 (a 10% increase).

Barack Obama Administration

On January 20, 2009, Rahm Emanuel, Assistant to President Barack Obama and Chief of Staff, sent a memorandum to the heads of executive departments and agencies requesting that they generally (1) not send proposed or final rules to the Office of the Federal Register, (2) withdraw from the Office rules that had not yet been published in the Federal Register , and (3) "consider" postponing for 60 days the effective dates of rules that had been published in the Federal Register but had not yet taken effect. The Director or Acting Director of OMB was allowed to exempt certain rules from these requirements for emergency or "other urgent circumstances relating to health, safety, environmental, financial, or national security matters."

One of the major differences between the Emanuel memorandum and the Card memorandum was in the degree of deference shown to the rulemaking agencies. For example, whereas the Emanuel memorandum requested agencies to "consider" extending the effective dates of rules that had not taken effect, the Card memorandum simply instructed the agencies to do so. Also, the Emanuel memorandum stated that when the effective dates of rules are extended, the agencies should allow interested parties to comment for 30 days "about issues of law and policy raised by those rules." The Card memorandum had no similar provision regarding public comment.

In addition, on January 21, 2009, Peter R. Orszag, OMB Director, sent a memorandum to the heads of executive departments and agencies providing guidance on implementing the third provision of the Emanuel memorandum. The Orszag memorandum said that agencies' decisions on whether to extend the effective dates of rules should be based on such considerations as whether the rulemaking process was procedurally adequate, whether the rule reflected proper consideration of all relevant facts, and whether objections to the rule were adequately considered. The Orszag memorandum also said that agencies should seek public comments regarding the agencies' "contemplated extension of the effective date and the rule in question." Agencies were also instructed to consult with OIRA and the Department of Justice's Office of Legal Counsel before extending the effective dates of any rules, particularly when the rules were scheduled to take effect before public comments could be solicited.

Although many of the rules that were issued near the end of the Bush Administration had taken effect by January 20, 2009, agencies delayed the effective date of some rules pursuant to the Emanuel memorandum. In addition, federal agencies withdrew a number of rules that had been sent to the Office of the Federal Register but had not been published.

In recent months, the Obama Administration has taken actions similar to those discussed above. In December 2015, OIRA Administrator Shelanski sent a memorandum to agencies urging them "to the extent feasible and consistent with your priorities, statutory obligations, and judicial deadlines" to "strive to complete their highest priority rulemakings by the summer of 2016 to avoid an end-of-year scramble that has the potential to lower the quality of regulations that OIRA receives for review and to tax the resources available for interagency review."

Some Members of Congress have also expressed interest in the status of Obama Administration midnight rules. For example, at two hearings in 2015, some Members in both chambers of Congress expressed interest in receiving an update on preparations in the Obama Administration for the issuance of midnight rules. In response to a question on whether OIRA would continue to do careful review on rules as the end of the Obama Administration approaches, OIRA Administrator Howard Shelanski stated that OIRA would "continue through the remainder of the Administration to have ongoing prioritization meetings with agencies to make sure that we are getting the rules through in a cadence that allows us to do that review."

Eliminating or Changing Midnight Rules

Once an outgoing administration's final rule has been published in the Federal Register , the only way for the incoming administration to change or undo the rule is to undergo another rulemaking process. Importantly, by law, the procedural requirements of rulemaking apply when an agency is issuing, amending, or repealing a rule. Furthermore, as explained by former OIRA Administrator Susan Dudley, "agencies cannot change [midnight] regulations arbitrarily; instead, they must first develop a factual record that supports the change in policy."

Under the rulemaking procedures established by the Administrative Procedure Act (APA), agencies are generally required to publish a notice of proposed rulemaking (NPRM) in the Federal Register , allow "interested persons" an opportunity to comment on the proposed rule, and, after considering those comments, publish the final rule along with a general statement of its basis and purpose. The APA does not specify how long rules must be available for comment, but agencies commonly allow at least 30 days. The APA states that in most cases, the final rule cannot become effective until at least 30 days after its publication.

In limited circumstances, agencies may be able to issue rules more expeditiously. The APA states that full notice and comment procedures are not required when going through notice and comment would be "impracticable, unnecessary, or contrary to the public interest." This is known as the "good cause" exception, and it allows agencies to skip notice and comment and proceed directly with issuing a final rule. Agencies can also make their rules take effect in less than 30 days by invoking a similar good cause exception. When agencies use the good cause exception, the APA requires that they explicitly state that they are doing so and provide a rationale for the exception's use when the rule is published in the Federal Register . The legislative history of the APA makes it clear, however, that Congress did not believe that the good cause exception to the notice and comment requirements should be an "escape clause." A federal agency's invocation of the good cause exception (or other exceptions to notice and comment procedures) is subject to judicial review. After having reviewed the totality of circumstances, the courts can and sometimes do determine that an agency's reliance on the good cause exception was not authorized under the APA.

In sum, if an agency wanted to change or eliminate midnight rules issued by the outgoing administration, the agency would have to follow the APA's general notice and comment requirements for rulemaking, which can be a potentially time consuming process, unless good cause exists.

Options for Congress: Oversight of Rules

Congress may examine the issuance of proposed and final "midnight" regulations at the end of an administration and conclude that the regulations should be allowed to go forward. Should Congress conclude otherwise, though, various options are available—even for rules that have already taken effect.

At any time, Congress can use its legislative power to overturn or change a regulation that has been issued by an agency. Congress can also use its legislative power to amend the statutory authority underlying a regulation. A change in the underlying statutory authority could force an agency to amend a regulation that has been already issued, provide additional instruction to an agency while a rule is under development and before it has been finalized, or outright repeal a rule that had already been issued.

In addition, Congress may use the expedited procedures provided in the Congressional Review Act (CRA) to disapprove agency rules, including, in some cases, rules issued in a previous session of Congress. Alternatively, Congress can add provisions to agency appropriations bills to prohibit certain rules from being implemented or enforced. These two options are discussed in detail below.

Congressional Review Act

As stated above, Congress may use its general legislative powers to overturn agency rules by regular legislation. The Congressional Review Act, enacted in 1996, was intended to reassert control over agency rulemaking by establishing a special set of expedited or "fast track" legislative procedures for this purpose, primarily in the Senate.

In short, the CRA requires that all final rules (including rules issued by independent boards and commissions) be submitted to both houses of Congress and to GAO before they can take effect. Members of Congress have 60 "days of continuous session" to introduce a joint resolution of disapproval beginning on the date a rule has been received by Congress (hereafter referred to as the "initiation period"). The Senate has 60 "session days" from the date the rule is received by Congress and published in the Federal Register to use expedited procedures to act on a resolution of disapproval (hereafter referred to as the "action period"). For example, once a joint resolution has reached the floor of the Senate, the CRA makes consideration of the measure privileged, prohibits various other dilatory actions, disallows amendments, and limits floor debate to a maximum of 10 hours. If passed by both houses of Congress, the joint resolution is then presented to the President for signature or veto. If the President signs the resolution, the CRA specifies not only that the rule "shall not take effect" (or shall not continue if it has already taken effect), but also that the rule may not be reissued in "substantially the same form" without subsequent statutory authorization. Also, the act states that any rule disapproved through these procedures "shall be treated as though such rule had never taken effect." If, on the other hand, the President vetoes the joint resolution, then (as is the case with any other bill) Congress can override the President's veto by a two-thirds vote in both houses of Congress.

Under most circumstances, it is likely that the President would veto such a resolution in order to protect rules developed under his own administration, and it may also be difficult for Congress to muster the two-thirds vote in both houses needed to overturn the veto. Of the approximately 56,000 final rules that have been submitted to Congress since the legislation was enacted in 1996, the CRA has been used to disapprove one rule—the Occupational Safety and Health Administration's November 2000 final rule on ergonomics.

The March 2001 rejection of the ergonomics rule was the result of a specific set of circumstances created by a transition in party control of the presidency. The majority party in both houses of Congress was the same as the party of the incoming President (George W. Bush). When the new Congress convened in 2001 and adopted a resolution disapproving the rule published under the outgoing President (William J. Clinton), the incoming President did not veto the resolution. Congress may be most able to use the CRA successfully to disapprove rules in similar, transition-related circumstances.

CRA "Carryover" Provisions

The ergonomics disapproval was also an example of the "carryover" provisions in the CRA. Midnight rules issued in the final months of an administration are often subject to reconsideration under the CRA in the next session of Congress. Section 801(d) of the CRA provides that, if Congress adjourns its annual session sine die less than 60 legislative days in the House of Representatives or 60 session days in the Senate after a rule is submitted to it, then the rule is subject, during the following session of Congress, to (1) a new initiation period in both chambers and (2) a new action period in the Senate. The purpose of this provision is to ensure that both houses of Congress have sufficient time to consider disapproving rules submitted during this end-of-session "carryover period." In any given year, the carryover period begins after the 60 th legislative day in the House or session day in the Senate before the sine die adjournment, whichever date is earlier . The renewal of the CRA process in the following session occurs even if no resolution to disapprove the rule had been introduced during the session when the rule was submitted.

For purposes of this new initiation period and Senate action period, a rule originally submitted during the carryover period of the previous session is treated as if it had been published in the Federal Register on the 15 th legislative day (House) or session day (Senate) after Congress reconvenes for the next session. In each chamber, resolutions of disapproval may be introduced at any point in the 60 days of continuous session of Congress that follow this date, and the Senate may use expedited procedures to act on the resolution during the 60 days of session that follow the same date.

Appropriations Provisions

While the CRA has been used once to overturn an agency rule, Congress has frequently used provisions added to agency appropriations bills to affect rulemaking and regulations, and could choose to apply such provisions to midnight rules. Most frequently, such provisions prohibit the use of funds for certain rulemaking-related purposes, such as prohibiting the use of funds for finalizing particular proposed or final rules, developing regulations with regard to particular statutes or issues, implementing or enforcing rules that have already been issued and perhaps taken effect.

Restrictions on the use of funds in appropriations bills can enable Congress to have a substantial effect on agency rulemaking and regulatory activity beyond the introduction of joint resolutions of disapproval pursuant to the CRA. However, unlike CRA joint resolutions of disapproval, these types of appropriations provisions do not nullify an existing regulation. Therefore, any final rule that has taken effect and been codified in the Code of Federal Regulations will continue to be binding—even if language in the relevant regulatory agency's appropriations act prohibits the use of funds to enforce the rule.

There may be additional limits on the ability to influence agency rulemaking through restrictions on the use of funds based on the duration such provisions are effective. Restrictions on the use of funds in appropriations acts, unless otherwise specified, are binding only for the period of time covered by the measure (i.e., a fiscal year or a portion of a fiscal year).

Appropriations prohibitions that seek to restrict regulatory actions may not be effective in preventing such action from occurring in certain circumstances. Some federal regulatory agencies derive a substantial amount of their operating funds from sources other than congressional appropriations (e.g., user fees), and the use of those funds to develop, implement, or enforce rules may not be legally constrained by language preventing the use of appropriated funds. Also, some federal regulations (e.g., many of those issued by the Environmental Protection Agency and the Occupational Safety and Health Administration) are primarily implemented or enforced by state or local governments, and those governments may have sources of funding that are independent of the federal funds that are restricted by the appropriations provisions. Some state or local governments may also have their own statutory and regulatory requirements that are the same as or similar to the federal rules at issue, or may even go beyond federal standards. If state or local funds or legal authorities are used to develop, implement, or enforce regulations, those actions would not appear to be constrained by statutory provisions limiting the use of federal funds to restrict action on particular federal laws and regulations.

Agencies may also attempt to find alternative ways around provisions prohibiting the use of appropriated funds for rulemaking or other regulatory actions. For example, if an agency is not permitted to use its appropriation to issue a rule on a particular issue, it could attempt to achieve the result through other means, such as through the use of non-binding guidance documents. Another possibility is that if Congress restricts one agency or group of agencies from issuing a rule on a particular topic, another agency with similar or overlapping statutory authority could be assigned that responsibility, provided that the other agency has such authority to issue the rule.

Recent Midnight Rulemaking Legislative Proposals

Several midnight rulemaking bills have been introduced into recent Congresses that corresponded with a presidential transition (or potential transition, as was the case in the 112 th Congress, which coincided with the presidential election of 2012).

112th Congress

Companion bills entitled the Midnight Rule Relief Act of 2012 ( H.R. 4607 and S. 2368 ) were introduced by Representative Reid Ribble and Senator Ron Johnson, respectively, in the 112 th Congress. The text of H.R. 4607 and a number of other bills related to rulemaking were incorporated into H.R. 4078 , the Red Tape Reduction and Small Business Job Creation Act, which was passed by the House on July 26, 2012. S. 2368 was referred to the Senate Committee on Homeland Security and Governmental Affairs upon introduction, and the Senate did not take further action.

The Midnight Rule Relief Act would have established a moratorium on the proposal or finalization of certain types of rules during the period between a presidential Election Day and inauguration day of a President's final term in office. Specifically, if enacted, it would have prevented an outgoing President from proposing or finalizing certain "major" rules during the covered period. The exceptions would have included certain rules with statutory or judicial deadlines; rules exempted by the President to be necessary for various reasons including national security; and deregulatory measures aimed at repealing an existing rule.

114th Congress

In the 114 th Congress, Representative Tim Walberg and Senator Joni Ernst introduced the Midnight Rule Relief Act of 2016 ( H.R. 4612 and S. 2582 , respectively) on February 25, 2016. On June 10, 2016, the House Committee on Oversight and Government Reform reported H.R. 4612 , and the text reported was considered, with some modifications, as an amendment to H.R. 4361 , the Government Reform and Improvement Act of 2016, and passed by the House on July 7, 2016. S. 2582 was referred to the Senate Committee on Homeland Security and Governmental Affairs upon introduction, and the Senate has not taken further action at the time of writing of this report.

If enacted, the Midnight Rule Relief Act would prevent certain proposed and final rules from being issued during a "moratorium period" following the election of a new President. The rules that would be precluded from issuance would be "major" rules and rules that would trigger the analytical requirements of the Regulatory Flexibility Act (i.e., those rules that may have a significant economic impact on a substantial number of small entities). The bill contains a number of exceptions, such as rules that are required to be issued under statute, rules for which the President issues an executive order determining that the rule is necessary for certain reasons specified in the bill, or rules that are deregulatory in nature (i.e., a rule that would repeal an existing rule).

In addition, Representative Darrell Issa introduced H.R. 5982 , the Midnight Rules Relief Act, on September 9, 2016, and the bill was reported without amendment by the House Committee on the Judiciary on September 21, 2016.

If enacted, H.R. 5982 would make it easier for a new Congress to disapprove multiple rules issued in the final months of an outgoing administration. Currently, under the Congressional Review Act (CRA, described above), Congress can overturn a single final rule through enactment of a joint resolution of disapproval once the rule is finalized and submitted to Congress. Congress must consider such a disapproval resolution under certain limited time periods, which are stipulated in the CRA. If a rule is submitted late in a session of Congress, there may be additional time periods for consideration available in the next session (see section above entitled " CRA "Carryover" Provisions "). H.R. 5982 would amend the CRA to allow a disapproval resolution to contain more than one rule for those late-issued rules finalized by an outgoing administration—i.e., for rules issued by the outgoing administration that are submitted to Congress during the final 60 days of session in the Senate or 60 legislative days in the House of Representatives before sine die adjournment.