For Whom the Bell Tolls: The Midnight Regulation Phenomenon

Abstract

The term describes the dramatic spike in new regulations promulgated at the end of presidential terms, especially during transitions to an administration of the opposite party. While widely acknowledged as problematic due to lessened presidential accountability during the midnight period - the time after the November election and before Inauguration Day - midnight regulations present another problem that receives little attention. The number of regulations promulgated during that period could overwhelm the institutional review process that serves to ensure that new regulations have been carefully considered, are based on sound evidence, and can justify their costs. The Office of Information and Regulatory Affairs (OIRA) is in charge of reviewing all proposed new significant regulations. While the number of proposed regulations spikes during the midnight period, the resources available to OIRA remain constant, setting the stage for a potential collapse of the review process. Few satisfactory solutions to the midnight regulations phenomenon have been proposed. In this paper, however, we propose one possible solution that addresses the effects of midnight regulation might have on regulatory review: Cap the number of regulations agencies may submit to OIRA for review during a given period.