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A Reform Agenda Jack M Boston University School of Law Scholarly Commons at Boston University School of Law Faculty Scholarship 7-2012 Midnight Rules: A Reform Agenda Jack M. Beermann Boston University School of Law Follow this and additional works at: https://scholarship.law.bu.edu/faculty_scholarship Part of the Law and Politics Commons, and the President/Executive Department Commons Recommended Citation Jack M. Beermann, Midnight Rules: A Reform Agenda, No. 12-58 Boston University School of Law, Public Law Research Paper Series (2012). Available at: https://scholarship.law.bu.edu/faculty_scholarship/61 This Article is brought to you for free and open access by Scholarly Commons at Boston University School of Law. It has been accepted for inclusion in Faculty Scholarship by an authorized administrator of Scholarly Commons at Boston University School of Law. For more information, please contact [email protected]. MIDNIGHT RULES: A REFORM AGENDA Boston University School of Law Working Paper No. 12-58 (July 12, 2012) Jack Michael Beermann This paper can be downloaded without charge at: http://www.bu.edu/law/faculty/scholarship/workingpapers/2012.html Electronic copy available at: http://ssrn.com/abstract=2121796 Beermann, Midnight Rulemaking Report 7/12/2012 Midnight Rules: A Reform Agenda REPORT Jack M. Beermann This Article draws extensively from a February 2012 Report that I prepared as an academic consultant to the Administrative Conference of the United States, which adopted Recommendation 2012- 2, Midnight Rules, based on the Report: See Adoption of Recommendation, __ Fed. Reg. __ (date) or See Administrative Conference Recommendation 2012-2, Midnight Rules, (adopted June 14, 2012) available at http://www.acus.gov/wp-content/uploads/downloads/2012/06/Final-Recommendation-2012- 2-Midnight-Rules.pdf. 1 Electronic copy available at: http://ssrn.com/abstract=2121796 Beermann, Midnight Rulemaking Report 7/12/2012 Midnight Rules: A Reform Agenda Jack M. Beermann* I. Introduction., p. 3 II. Evidence that the Problem Exists., p. 7 III. Normative Issues Surrounding Midnight Rulemaking, p. 19 A. Political Background of Midnight Rules., p., 19 B. Normative Views of Midnight Rulemaking, p. 34 C. Summary, p. 39 IV. Evaluating Midnight Rules, p. 40 A. Measuring the Quality of Midnight Rules., p. 41 B. The Volume and Durability of Midnight Rules., p. 46 C. Interviews on the Quality of Midnight Rules., p. 61 V. Reactions of Incoming Administrations to Midnight Rulemaking, p. 62 A. Reactions of Incoming Administration to Midnight Rules, p. 63 B. The Legality of Strategies for Dealing with Midnight Rules, 85 1. Legal Views in the Executive Branch and Commentary, p. 85 2. Case Law on Reactions to Midnight Regulation, p. 89 a. Withdrawal of Rules from the Federal Register, p. 90 b. Suspension of the Effective Dates of Published Rules, p. 94 3. The Florida Experience with Midnight Rulemaking, p., 103 4. Summary and Conclusions Concerning the Legality of Reactions to Midnight Rulemaking, p. 105 C. The Bush Administration’s Effort to Curb Its Own Midnight Rulemaking, p. 107 * Professor of Law and Harry Elwood Warren Scholar, Boston University School of Law. Many people contributed to the successful completion of the Administrative Conference’s project on Midnight Rules. At ACUS itself, these include Emily Bremer, Jeff Lubbers, Funmi Olorunnipa, Jonathan Siegel and Robert Rivlin, ACUS Rulemaking Committee Chair, and ACUS Chair Paul Verkuil. Anne Joseph O’Connell generously shared and interpreted her data on rulemaking duration and timing for the report. Ron Cass provided guidance and support throughout the project. Although they may not all agree with everything in the final product, I owe special thanks to the many busy and knowledgeable people I interviewed for this Report: Gary Bass, former head of OMB Watch and current director, Bauman Family Foundation; Amy Bunk, Director of Legal Affairs and Policy, Office of the Federal Register; Curtis Copeland, Specialist in American Government at the Congressional Research Service; Susan Dudley, Former Administrator of OIRA and current Director of the Regulatory Studies Center, George Washington University, Thomas A. Firey, formerly of the Cato Institute and Senior Fellow at the Maryland Public Policy Institute; Michael Fitzpatrick, Associate Administrator of OIRA and ACUS Council Member; Jessica Furey, former Associate Administrator for the Office of Policy, Economics and Innovation at the United States EPA and currently staff member at the Whitman Strategy Group; Sally Katzen, former Administrator of OIRA and currently Senior Advisor, Podesta Group, Government Relations and Public Relations Professionals, Rena Steinzor, Professor of Law at University of Maryland Francis King Carey School of Law, Member Scholar at Center for Progressive Regulation; Jim Tozzi, official in several administrations including in the OMB under President Reagan, currently affiliated with the Center for Regulatory Effectiveness; Governor Christie Todd Whitman, Former Governor of New Jersey and Administrator of the EPA and currently principal of the Whitman Strategy Group; Jim Wickliffe, Scheduler, Office of the Federal Register. Special thanks also to Geoff Derrick, Bryn Sfetsios, Daniela Sorokko and Marisa Tripolsky for excellent research assistance. 2 Electronic copy available at: http://ssrn.com/abstract=2121796 Beermann, Midnight Rulemaking Report 7/12/2012 VI. Recommendations, p. 112 A. Prior Reform Proposals, p. 112 B. Proposed Recommendations, p. 119 VII. Conclusion, p. 125 3 Electronic copy available at: http://ssrn.com/abstract=2121796 Beermann, Midnight Rulemaking Report 7/12/2012 Midnight Rules: A Reform Agenda Jack M. Beermann* I. Introduction. There is a documented increase in the volume of regulatory activity during the last 90 days of presidential administrations when the President is a lame duck, having either been defeated in a bid for reelection or being at the end of the second term in office. This includes an increase in the number of final rules issued as compared to other periods. The phenomenon of late-term regulatory activity has been called “Midnight Regulation” based on a comparison to the Cinderella story in which the magic wears off at the stroke of midnight.1 This Report looks closely at one species of Midnight Regulation, namely Midnight Rules. This Report defines Midnight Rules as agency rules promulgated in the last 90 days of an administration. This Report focuses on legislative Midnight Rules (normally issued under the APA’s notice and comment procedures) because they are the most visible and often the most controversial actions taken in the final days of administrations and because they are usually the most difficult to alter or revoke among the various midnight actions taken by outgoing administrations. However, because late-term activity goes beyond legislative rulemaking, this report also discusses, to a lesser extent, other phenomena such as the issuance of non-legislative rules including interpretative rules and policy statements; non-rule regulatory documents such as guidance documents and Executive Orders; and the use of other presidential powers such as the pardon power and the ability to entrench political appointees into protected employment positions in the new administration. * Professor of Law and Harry Elwood Warren Scholar, Boston University School of Law. 1 See Jay Cochran III, The Cinderella Constraint: Why Regulations Increase Significantly During Post-Election Quarters (Mercatus Ctr. at George Mason Univ., Working Paper, 2001), http://www.mercatus.org/PublicationDetails.aspx? id=17546. 4 Beermann, Midnight Rulemaking Report 7/12/2012 This Report documents the existence of the Midnight Rules phenomenon both quantitatively and qualitatively, using numerical measures of the volume of rules and qualitative analysis of some rules as illustrations. The Report reviews various explanations for the existence of the phenomenon ranging from the simple human tendency to work to deadline, to more complicated political factors that may affect the timing of rules. The Report also reports on interviews of officials involved in rulemaking to inform the analysis of the causes and effects of the Midnight Rulemaking phenomenon. This Report also addresses Midnight Rulemaking from a policy perspective, asking whether there are reasons to be concerned about the phenomenon. Midnight Rulemaking and Midnight Regulation generally, have been strongly condemned by commentators and media from across the political spectrum.2 There are at least two possible sets of reasons to be concerned about the increase in rulemaking at the end of an administration: first whether Midnight Rules are likely to be of lower quality than rules issued at other times during administrations; and second whether Midnight Rulemaking involves undesirable political consequences, mainly the unwarranted extension of an outgoing administration’s agenda into the successor’s term. It may be very difficult to arrive at firm conclusions on either of these potential objections to Midnight Rulemaking, but this Report will attempt to do so from various perspectives. It is very difficult to measure the quality of rules. Rulemaking often involves values and policy preferences that are not subject to objective measurement for quality. Various metrics have been used to attempt to measure the quality of Midnight Rules, including length of time that the rules were reviewed at the Office of Information and Regulatory Affairs (“OIRA”) in the 2 For examples of negative
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