Giving 'midnight regulations' an earlier bedtime
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Recently, there has been a fair amount of attention paid to concerns about "midnight regulations" — regulations issued near the end of an administration. The term is commonly believed to have originated when the outgoing Carter administration issued a flurry of regulations after President Carter lost the 1980 election. Such regulations have historically been a concern because there was the worry that presidents were "hiding" them until they no longer had to worry about electoral consequences.

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Ever since the Carter administration, regulatory activity has spiked in the last few months of a presidency. This is true under Democratic presidents and Republican ones. The forces pushing regulations out toward midnight are profound. In addition to the political incentives described above, there is the desire at regulatory agencies to ensure that years of work (and regulations do take years) are not wasted as a new president with new priorities takes office. Midnight regulations also reflect the very human tendency to put things off until the last possible minute.

Recently, there has been a trend toward trying to curb the use of midnight regulations. Under the George W. Bush administration, the chief of staff sent a memo to agencies urging them not to wait until the last minute to issue their regulations. Recently, President Obama's administrator of the Office of Information and Regulatory Affairs (OIRA), Howard Shelanski, took a similar action, telling regulators to have their regulations ready for OIRA review by the summer of 2016. (OIRA review can take up to 90 days or, occasionally, longer.)

Why have the last two administrations asked their regulators to issue regulations at 10 p.m. instead of midnight? There are two primary reasons, one substantive and one political. There is considerable evidence that regulations issued at the end of an administration both have lower net economic benefits than other regulations, and are supported by analysis that is not as well done as analysis for non-midnight regulations. If indeed these regulations are the product of agencies rushing to complete them, telling those agencies to give OIRA more time to look over the regulations and suggest improvements should lead to better regulations.

But there is also a political motive. The earlier a regulation is issued, the harder it is for the next administration to overturn it. Regulations issued before mid-May will not be subject to the Congressional Review Act and Republicans would have to have 60 votes in the Senate to overturn them (a virtual impossibility). Regulations that are effective by the time a new president is inaugurated are harder for that president to reverse. While regulatory agencies are certainly aware of these facts, a memo from the Executive Office of the President puts this challenge front and center for them.

Regulations issued at 10 p.m. are likely to be sounder than those issued at midnight (who among us has not made a questionable decision as a deadline approached?). With many important ones yet to be issued, including ones implementing the Dodd-Frank Act, and regulations to improve public health at the Occupational Safety and Health Administration (OSHA) and the Environmental Protection Agency (EPA), getting the decisions right is important. The main reason, however, that more regulations will be put to bed before midnight is to ensure that they are tucked in safe and sound and cannot be disturbed.

Shapiro is an associate professor and director of the Public Policy Program at Rutgers University and a member of the Scholars Strategy Network.