September 14, 2016
Andrew Lobel, Manager, Partnership for Public Service
As the Trump and Clinton transition teams begin planning in earnest following their party nominating conventions, one particular focus of attention will be on regulations the outgoing administration has in the pipeline. These regulatory and executive actions are referred to as “midnight” regulations because they are issued close to the end of the outgoing president’s term. Such actions can be a way for an administration in its final months to ensure that important or potentially controversial policy priorities are sustained, though most such rules are routine and intended to implement priorities that were initiated prior to the transition period.
Midnight Regs Are Nothing New
“Midnight” regulations first came into the political lexicon in 1980 when the Carter administration published 24,531 pages of rules in the Federal Register in the three months between Election Day and the inauguration. Both the George H.W. Bush and Clinton administrations issued a large number of new regulations in their final months in office as well. Public administration scholar Jay Cochran has found that since 1948, the “general tendency has been for regulations…to increase” during the “midnight” period. This three month period is especially important because federal law mandates a 30 to 60 day waiting period for rules to take effect, depending on their potential impact.
Every incoming administration since at least President Reagan has issued a moratorium on the issuance of pending regulations at the very beginning of its term. Reviewing the regulations of the outgoing administration has been a critical part of the work of past transition teams, particularly when a change of political party is involved. For example, the policy team of George W. Bush’s 2000 transition tracked, analyzed and, when necessary, prepared to stop all regulations and executive orders under development or released by the Clinton administration. President-elect Obama’s 2008 transition team had a similar function.
Clock Ticking on Current Regulations
Recent administrations have made an effort to limit the issuance of midnight regulations on their way out of office. In 2008, Bush Chief of Staff Josh Bolten issued a memorandum requiring all regulations to be proposed no later than June 1 and issued no later than November 1.
The Obama administration has taken similar action. Howard Shelanski, administrator of the Office of Information and Regulatory Affairs, issued a memo to agency deputy secretaries on Dec. 15, 2015, requiring agencies to “strive to complete their highest priority rulemakings by the summer of 2016.” On July 6, the House also has stepped in by passing the Government Reform and Improvement Act of 2016 (H.R. 4361). The bill includes a provision that would establish a moratorium on the publishing of new regulations between Election Day and the inauguration.
However, the Senate still must act before the measure becomes law.
For more information on “midnight” regulations and their impact on transition, download the Partnership’s Presidential Transition Guide.