Michigan Journal of Environmental & Administrative Law Volume 2 Issue 2 2013 Midnight Rules: A Reform Agenda Jack M. Beermann Boston University School of Law Follow this and additional works at: https://repository.law.umich.edu/mjeal Part of the Administrative Law Commons, Law and Politics Commons, and the President/Executive Department Commons Recommended Citation Jack M. Beermann, Midnight Rules: A Reform Agenda, 2 MICH. J. ENVTL. & ADMIN. L. 285 (2013). Available at: https://repository.law.umich.edu/mjeal/vol2/iss2/2 This Article is brought to you for free and open access by the Journals at University of Michigan Law School Scholarship Repository. It has been accepted for inclusion in Michigan Journal of Environmental & Administrative Law by an authorized editor of University of Michigan Law School Scholarship Repository. For more information, please contact [email protected]. Beermann_Final_Printer_Ready_FINAL_12June2013 7/18/2013 4:16 PM MIDNIGHT RULES: A REFORM AGENDA Jack M. Beermann* INTRODUCTION ................................................................................ 286 I. EVIDENCE THAT THE PROBLEM EXISTS ............................... 290 II. NORMATIVE ISSUES SURROUNDING MIDNIGHT RULEMAKING .................................................... 300 A. Political Background of Midnight Rules .................................... 300 1. Hurrying .................................................................... 300 2. Delay .......................................................................... 305 3. Waiting ....................................................................... 306 * Professor of Law and Harry Elwood Warren Scholar, Boston University School of Law. Many people contributed to the successful completion of the Administrative Confer- ence of the United States’s (ACUS) 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 upon which this Article is based. Ron Cass provided guidance and support through- out 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 the project: 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, Senior Manager and Senior Counsel for General Electric, Former Associate Administrator of OIRA and Current 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; and Jim Wickliffe, Scheduler, Office of the Federal Register. Special thanks also to Geoff Derrick, Bryn Sfetsios, Daniela Sorokko, and Marissa Tripolsky for excellent research assistance. This Article is based on 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 Midnight Rules, ADMIN. CONF. OF THE U.S., http://www.acus.gov/research/the-conference-current- projects/midnight-rules/ (last visited Nov. 1, 2012); see also Administrative Conference Recommendation 2012-2: Midnight Rules, 77 Fed. Reg. 47,802 (adopted June 14, 2012). 285 Beermann_Final_Printer_Ready_FINAL_12June2013 7/18/2013 4:16 PM 286 Michigan Journal of Environmental & Administrative Law [Vol. 2:2 4. Other Elements .......................................................... 308 B. Normative Views of Midnight Rulemaking ............................... 312 C. Summary .............................................................................. 317 III. EVALUATING MIDNIGHT RULES ........................................... 317 A. Measuring the Quality of Midnight Rules ................................. 318 B. The Volume and Durability of Midnight Rules .......................... 330 C. Interviews on the Quality of Midnight Rules ............................. 334 IV. REACTIONS OF INCOMING ADMINISTRATIONS TO MIDNIGHT RULEMAKING ............................................... 335 A. Reactions of Incoming Administrations to Midnight Rules ........... 335 B. The Legality of Strategies for Dealing with Midnight Rules ......... 353 1. Legal Views in the Executive Branch and Commentary ........................................................ 354 2. Case Law on Reactions to Midnight Regulation ............ 357 3. The Florida Courts’ Reactions to Midnight Rulemaking ............................................. 369 4. Summary and Conclusions Concerning the Legality of Reactions to Midnight Rulemaking .......................... 370 C. The Bush Administration’s Effort to Curb Its Own Midnight Rulemaking ................................................ 372 V. RECOMMENDATIONS ........................................................... 376 A. Prior Reform Proposals ........................................................... 376 VI. ACUS RECOMMENDATIONS ................................................ 382 A. Recommendations to Incumbent Presidential Administrations ..... 382 B. Recommendations to Incoming Presidential Administrations ....... 382 C. Recommendation to Congress ................................................... 383 D. Recommendation to the Office of the Federal Register ................. 383 CONCLUSION ................................................................................... 384 INTRODUCTION There is a documented increase in the volume of regulatory activity during the last ninety days of presidential administrations when the Presi- dent is a lame duck, having either been defeated in a bid for re-election 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 phe- nomenon 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 1. See Jay Cochran, III, The Cinderella Constraint: Why Regulations Increase Significantly During Post-Election Quarters 4 (Mar. 8, 2001) (unpublished manuscript), available at http://mercatus.org/sites/default/files/The_Cinderella_Constraint(1).pdf. Beermann_Final_Printer_Ready_FINAL_12June2013 7/18/2013 4:16 PM Spring 2013] Midnight Rules: A Reform Agenda 287 This Article looks closely at one species of midnight regulation— namely, midnight rules. This Article defines midnight rules as agency rules promulgated in the last ninety days of an administration. This Article fo- cuses on legislative midnight rules (normally issued under the notice and comment procedures of the Administrative Procedure Act (APA)), 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 interpre- tative 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 ap- pointees into protected employment positions in the new administration. This Article documents the existence of the midnight rules phenome- non both quantitatively and qualitatively, using numerical measures of the volume of rules and qualitative analysis of some rules as illustrations. The Article 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 Article also reports on interviews of officials involved in rulemaking to inform the analysis of the causes and effects of the midnight rulemaking phenomenon.2 This Article also addresses midnight rulemaking from a policy perspec- tive, 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.3 There