{{Short description|US federal regulations by executive branch agencies in period of an outgoing president}} {{Use American English|date=April 2017}} {{Use mdy dates|date=April 2017}} '''Midnight regulations''' are [[United States federal government]] [[Code of Federal Regulations|regulations]] created by [[executive branch]] agencies during the [[United States presidential transition|transition period]] of an outgoing [[President of the United States|president]]'s administration.
==Process of creating new regulations== The [[United States Congress]] passes laws that sometimes outline only broad policy mandates. [[Rulemaking]] by the specialist agencies in the executive branch adds necessary detail to these laws. Rulemaking also provides an administration with an opportunity to exert political influence over government without having to go through Congress to change the law.
U.S. federal law mandates a 60-day waiting period before any major regulatory changes become law. Thus, some presidents try to publish new major regulations on November 21, 60 days before the new president's [[United States presidential inauguration|inauguration]] on January 20. "Minor" regulations, or those that have less than [[United States dollar|US$]]100 million in effect on the economy or do not have major social policy significance,<ref name=NN /> have a similar 30-day waiting period. Tom Firey, of the [[Cato Institute]]'s ''[[Regulation (magazine)|Regulation]]'' magazine, argues that most midnight regulations are in fact primarily political symbolism rather than major regulatory change.<ref>{{Cite episode|title="Congress and Midnight Regulations" featuring Thomas A. Firey|url=http://www.cato.org/dailypodcast/podcast-archive.php?podcast_id=809|network=[[Cato Institute]] podcast|airdate=January 9, 2009|access-date=November 20, 2010|minutes=7:51}}</ref> Regulations that have not yet become law can be placed on hold by the incoming President.<ref>{{cite news|url=https://www.npr.org/templates/story/story.php?storyId=97291312|title=Bush Hits Deadline For 'Midnight Regulations'|last=Overby|first=Peter|date=November 21, 2008|publisher=[[Morning Edition]], [[National Public Radio|NPR]]|access-date=November 29, 2008}}</ref>
Regulations that take effect before a new president takes office can still be reversed by the same executive agencies, but this requires a considerable [[rule-making process]]. In addition, reversing recently enacted regulations may distract an incoming administration from its own regulatory agenda.<ref name=NN>{{cite news|url=https://www.npr.org/templates/story/story.php?storyId=97260899|title=Dems Scrutinize Bush's Midnight Regulations|last=Chideya|first=Farai|date=November 20, 2008|publisher=[[News & Notes]], [[National Public Radio|NPR]]|access-date=December 1, 2008}}</ref> Alternatively, because regulations are executive branch agencies' interpretations of statutes passed by [[United States Congress|Congress]], Congress can effectively overturn the regulations by passing more explicit statutory mandates. But in each case the period in which the disfavored regulations are law may permit undesired results to take place. For example, a heavily polluting power plant could be built in the period that a federal regulation is law.<ref name=Kolbert /> A third option is for Congress to overturn the regulation under the [[Congressional Review Act]] of 1996, requiring congressional approval for any similar rule issued in the future. Of the 50,000 regulations enacted since the Act was passed, {{as of|2008}}, only fifteen had been so overturned.<ref>{{cite news|url=https://www.politico.com/story/2008/11/will-bushs-midnight-rules-be-reversible-015758|title=Will Bush's midnight rules be reversible?|last=Sapien|first=Joaquin|date=November 19, 2008|publisher=[[Politico]]|access-date=December 1, 2008}}</ref>
==History== {{Missing information|section|midnight regulations under other presidents since Carter|date={{monthyear}}}} [[File:Jimmy Carter.jpg|thumb|130px|right|[[Jimmy Carter]] was the first president to make extensive use of midnight regulations.]] The term "midnight regulation" entered the lexicon in 1980–81, during the final months of [[Jimmy Carter]]'s single term as president.<ref name="Mercatus">[http://www.mercatus.org/uploadedFiles/Mercatus/Publications/WP0806_RSP_Midnight%20Regulations.pdf Antony Davies and Veronique de Rugy (March 2008), Midnight Regulations: An Update, Mercatus Center, George Washington University, Working Paper No. 08-06]</ref> Carter's administration set a new record for midnight regulations<ref name=Mercatus/> by publishing more than 10,000 pages of new rules between Election Day and [[Ronald Reagan]]'s Inauguration Day.<ref name=Kolbert>{{cite magazine|url=http://www.newyorker.com/talk/comment/2008/11/24/081124taco_talk_kolbert|title=Comment: Midnight Hour|last=Kolbert|first=Elizabeth|date=November 24, 2008|magazine=[[The New Yorker]]|access-date=November 29, 2009}}</ref> The term is an allusion to the "[[midnight judges]]" appointed by [[John Adams]] in the final months of his presidency.<ref name=Kolbert/>
Due to midnight regulations, since 1948, during the period between a presidential election and the inauguration of a president of a different [[political party|party]], the ''[[Federal Register]]'' has averaged 17 percent more pages than during the same period in non-election years.<ref name=Mercatus/><ref>Cindy Skrzycki, [https://www.washingtonpost.com/wp-dyn/content/article/2008/06/02/AR2008060202893.html Bush Wants Sun to Set on Midnight Regulations], ''The Washington Post'', Tuesday, June 3, 2008; Page D03</ref>
===Bill Clinton=== The [[Presidency of Bill Clinton|Clinton administration]] enacted a flurry of rules limiting logging and lead paint, raising appliance energy efficiency, and tightening privacy of medical records.<ref>{{cite news|url=https://www.nytimes.com/2007/09/09/weekinreview/09broder.html|title=A Legacy Bush Can Control |last=Broder|first=John|date=September 9, 2007|newspaper=[[The New York Times]]|access-date=November 29, 2008}}</ref> One of Clinton's midnight regulations imposed a more stringent [[Arsenic contamination of groundwater#United States|drinking water standard for arsenic]] after years of [[United States Environmental Protection Agency|EPA]] study. Although Bush suspended the new regulation upon taking office, EPA head [[Christine Todd Whitman]] eventually approved it.<ref name=Kolbert /> When President George W. Bush took office in 2001, his administration acted to block the implementation of 90 final rules that were issued in the final months of the [[Presidency of Bill Clinton|Clinton administration]] but that had not yet gone into effect.<ref name=WashPost-Nov11-2008/>
===George W. Bush=== [[File:Bolten Joshua.jpg|thumb|130px|right|Bush Chief of Staff [[Joshua Bolten]] wrote a memo encouraging Administration agencies to pass rules in time for them to become law before the end of Bush's second term.]] The [[Presidency of George W. Bush|Bush administration]] also approved thousands of pages of dozens of new agency rules,<ref>{{cite news|url=http://ipsnews.net/news.asp?idnews=44924|title=ENVIRONMENT-US: Bush Quietly Passes Dozens of New Rules|last=Leahy|first=Stephen|date=December 1, 2008|publisher=[[Inter Press Service|IPS]]|access-date=December 3, 2008|url-status=dead|archive-url=https://web.archive.org/web/20081205004244/http://www.ipsnews.net/news.asp?idnews=44924|archive-date=December 5, 2008|df=mdy-all}}</ref> setting a new record.<ref>{{cite news|last=Harris|first=Paul |title=Bush sneaks through host of laws to undermine Obama|url=https://www.theguardian.com/world/2008/dec/14/george-bush-midnight-regulations|access-date=November 20, 2010|newspaper=[[The Guardian]]|date=December 14, 2008}}</ref> Many of these regulations were promulgated in the hope of ensuring enactment before [[Barack Obama]] took office and could prevent the rules from becoming law. Bush [[White House Chief of Staff|Chief of Staff]] [[Joshua Bolten]] encouraged timely passage of the rules in a May 2008 memo to agencies suggesting that final versions be submitted by November 1.<ref name=WashPost-Nov11-2008>{{cite news|url=https://www.washingtonpost.com/wp-dyn/content/article/2008/11/10/AR2008111002902.html|title=Democrats Eye Bush Midnight Regulations|last=Skrzycki|first=Cindy|date=November 11, 2008|newspaper=[[Washington Post]]|access-date=November 29, 2008}}</ref> Finalized and proposed rules included:<ref name=NN /> * A finalized rule that effectively deregulates [[Factory farming|industrial farms]] * An adopted rule that opens up public land to drilling preliminary to the development of [[oil shale]] extraction * A [[Right of Conscience Rule|proposed rule]] that provides for a [[Conscience clause (medical)|conscience clause]] for workers at hospitals receiving federal money (particularly state hospitals), allowing them to refuse to perform [[abortion]]s or dispense [[contraceptive]]s
Several other rules were already adopted in late 2008, including one increasing [[truck driver]]s' maximum [[hours of service]] to eleven and another restricting employee time off under the [[Family and Medical Leave Act]].<ref>{{cite news|url=https://www.wsj.com/articles/SB122714583954143319|title=White House Pushes Through a Flurry of Rule Changes Sought by Business |last=Power|first=Stephen |author2=Elizabeth Williamson |author3=Christopher Conkey|date=November 20, 2008|newspaper=[[The Wall Street Journal]]|access-date=December 3, 2008}}</ref> The rules attracted considerable criticism.<ref>{{cite news|url=https://abcnews.go.com/Blotter/Story?id=6146929&page=1|title=The Bush Administration's Midnight Regulations|last=Schwartz|first=Emma|date=October 30, 2008|publisher=[[ABC News (United States)|ABC News]]|access-date=November 29, 2008}}</ref>
Hours after Obama took office, his administration ordered all executive branch agencies to halt enactment of any rules proposed during the Bush administration until the incoming administration could review them.<ref>{{cite news|last=Zakaria|first=Tabassum |title=WHouse stops pending Bush regulations for review|url=https://www.reuters.com/article/idUSTRE50J88L20090121|access-date=November 20, 2010|newspaper=[[Reuters]]|date=Jan 20, 2009}}</ref> According to the environmentalist magazine ''[[Grist (magazine)|Grist]]'', these efforts were effective in only a few cases; for other environmental rules the Obama administration tried to reverse some rules through Congress and some through the same slow administrative rulemaking process while interest groups challenged other environmental regulations in the courts.<ref>{{cite news|last=Livermore|first=Michael|title=Midnight regulations: After midnight, we're going to let it all hang out.|url=http://www.grist.org/article/2010-02-04-midnight-regulations|access-date=November 20, 2010|newspaper=[[Grist (magazine)|Grist]]|date=February 4, 2010}}</ref>
A subcommittee on administrative law in the Democratic [[United States House of Representatives|House of Representatives]] held a hearing on midnight regulations the month after Obama's inauguration.<ref>{{cite conference|title='''Hearing on:''' Midnight Rulemaking: Shedding Some Light|url=http://judiciary.house.gov/hearings/hear_090204.html|publisher=[[United States House Judiciary Subcommittee on Commercial and Administrative Law]]|access-date=November 20, 2010|date=February 4, 2009|url-status=dead|archive-url=https://web.archive.org/web/20101202025508/http://judiciary.house.gov/hearings/hear_090204.html|archive-date=December 2, 2010|df=mdy-all}}</ref>
=== Barack Obama === The [[Presidency of Barack Obama|Obama administration]] recognized the potential for midnight regulations as early as the end of 2015. [[Howard Shelanski]], the Administrator for the [[Office of Information and Regulatory Affairs]] (OIRA), issued a memo to federal agencies directing them to: “To the extent feasible and consistent with your priorities, statutory obligations, and judicial deadlines, however, agencies should 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.”<ref>{{Cite web|url=https://obamawhitehouse.archives.gov/sites/default/files/omb/assets/agencyinformation_circulars_memoranda_2015_pdf/regulatory_review_at_the_end_of_the_administration.pdf|title=Regulatory Review at the End of the Administration|last=Shelanski|first=Howard|date=December 17, 2015|website=obamawhitehouse.archives.gov|publisher=Office of Information and Regulatory Affairs|access-date=}}</ref> In the Obama administration's final [https://www.reginfo.gov/public/do/eAgendaMain Unified Agenda], there were [https://www.americanactionforum.org/insight/lame-duck-regulatory-agenda-projects-44-billion-midnight-costs/ 25 notable rules] in the “midnight period” with combined regulatory cost estimates (from the “proposed rule” versions) of approximately $44.1 billion.<ref>{{Cite news|url=https://www.americanactionforum.org/insight/lame-duck-regulatory-agenda-projects-44-billion-midnight-costs/|title=Lame Duck Regulatory Agenda Projects $44 Billion in Midnight Costs - AAF|newspaper=AAF|language=en-US|access-date=2016-12-08}}</ref>
Starting in November 2016<ref>{{cite web|url=https://www.americanactionforum.org/insight/charting-midnight-regulation-november/|title=Charting Midnight Regulation: November - AAF|author=Sam Batkins|date=December 6, 2016|work=AmericanActionForum.org|access-date=April 1, 2017}}</ref> (the first month of the Obama “midnight period”), OIRA concluded review of 57 rule-makings – a 26 percent increase over the monthly pace from the rest of 2016.<ref name=":0">{{Cite news|url=https://www.americanactionforum.org/insight/charting-midnight-regulation-november/|title=Charting Midnight Regulation: November - AAF|newspaper=AAF|language=en-US|access-date=December 8, 2016}}</ref> Fourteen of these measures were “economically significant” rule-makings.<ref name=":0" /> That represents the second-highest total in any November “midnight period” since at least 1996.<ref name=":0" /> Notable rulemakings from November 2016 include: * Conservation Standards for Ceiling Fans<ref>[https://www.reginfo.gov/public/do/eoDetails?rrid=126516 OIRA Conclusion of EO 12866 Regulatory Review]</ref> * Revision of Nutrition Facts for Meat and Poultry<ref>[https://www.reginfo.gov/public/do/eoDetails?rrid=126578 Revision of Nutrition Facts for Meat and Poultry]</ref> * Passenger Equipment Safety Standards<ref>[https://www.reginfo.gov/public/do/eoDetails?rrid=126195 Passenger Equipment Safety Standards]</ref> * Renewable Fuel Standards for 2017<ref name=":0" /><ref>[https://www.reginfo.gov/public/do/eoDetails?rrid=126908 Renewable Fuel Standards for 2017]</ref> [[Republican Conference of the United States House of Representatives|House Republicans]] introduced legislation that would provide a check upon Obama administration midnight rules. Representative [[Darrell Issa]] introduced [https://www.congress.gov/bill/114th-congress/house-bill/5982 H.R. 5982], or the “Midnight Rules Relief Act of 2016”, that “amends the [[Congressional Review Act]] to allow Congress to consider a joint resolution to disapprove multiple regulations that federal agencies have submitted for congressional review within the last 60 legislative days of a session of Congress during the final year of a President's term.”<ref>{{Cite web|url=https://www.congress.gov/bill/114th-congress/house-bill/5982|title=H.R.5982 - Midnight Rules Relief Act of 2016|last=|first=|date=November 28, 2016|publisher=[[United States Congress]]|access-date=}}</ref> The bill passed in the [[United States House of Representatives|House of Representatives]] by a vote of 240–179.<ref>{{Cite web|url=http://clerk.house.gov/evs/2016/roll585.xml|title=Roll Call 585|last=|first=|date=|publisher=[[United States Congress]]|access-date=}}</ref>
Senator [[Ron Johnson]] has written letters to Shelanski and multiple other agencies asking them to put a hold on regulatory activity during this “midnight period”.<ref>{{Cite news|url=https://thehill.com/regulation/309307-obamas-regulatory-chief-under-pressure-to-cutoff-midnight-rules/|title=Obama's regulatory czar under pressure to cutoff [sic] 'midnight rules'|last=Devaney|first=Tim|date=2016-12-07|newspaper=[[The Hill (newspaper)|The Hill]]|access-date=2016-12-08}}</ref>
==References== {{reflist}}
[[Category:United States administrative law]] [[Category:United States presidential transitions]]