Presidential Transitions: Midnight Rulemaking

Presidential Transitions: Midnight Rulemaking

INSIGHTi
Presidential Transitions:
Midnight Rulemaking
November 24, 2020
In Section 2 of the Presidential Transition Act of 1963 (as amended; 3 U.S.C. 102 note), Congress
declared that “[t]he national interest requires that [presidential] transitions ... be accomplished so as to
assure continuity in the faithful execution of the laws and in the conduct of the affairs of the Federal
Government, both foreign and domestic.” The crux of such a transition is the transfer of executive power
from the incumbent to the President-elect. The executive’s power manifests in a variety of processes with
application to a broad range of policy areas and issues. CRS has produced a set of products examining
selected processes and policies that may be of particular interest during a presidential transition. This
Insight discusses options available to a new Administration for repealing or amending midnight rules
issued by the prior Administration. Other related products examine clemency, executive orders,
presidential and government records, presidential appointments (executive branch), and presidential
transitions general y.
Midnight Rulemaking Overview
During the final months of recent Administrations, federal agencies often have increased the pace of their
regulatory activities. This phenomenon is often referred to as midnight rulemaking. Because it can be
difficult to change or eliminate rules after they have been finalized, issuing midnight rules can help ensure
a legacy for an outgoing President—especial y when an incoming Administration is of a different party.
Some concerns that have been raised over midnight rulemaking include the decreased political
accountability for an outgoing Administration; the potential for rules that are hurried through at the end of
an Administration not to have the same opportunity for public input; and the potential for the quality of
regulations to suffer during the midnight period, because the departing Administration may issue rules
quickly and without subjecting them to rigorous review or analysis. In addition, some have argued that the
task of evaluating a previous Administration’s midnight rules could potential y overwhelm a new
Administration.
By contrast, one study from 2012 cited evidence of the strategic use of midnight rulemaking but
concluded that “the perception of midnight rulemaking as an unseemly practice is worse than the reality.”
The Administrative Conference of the United States issued a number of recommendations regarding
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midnight rulemaking in 2012, concluding that many midnight rules were “relatively routine matters not
implicating new policy initiatives by incumbent administrations” and that the “majority of the rules
appear to be the result of finishing tasks that were initiated before the presidential transition period or the
result of deadlines outside the agency’s control.”
Options for a New Administration
A new Administration has various options for reviewing, amending, or repealing midnight regulations.
The available options depend on the status of the rule at the time the new Administration takes office.
Once a rule has been finalized, a new Administration would be required to undergo a rulemaking process
to change or repeal al or part of the rule. If a rule has not yet been finalized, however, a new President
may be able, immediately upon taking office, to prevent the rule from being issued.
Changing or Repealing Previously Issued Rules
Under the Administrative Procedure Act (APA), rulemaking is defined as “formulating, amending, or
repealing a rule,” meaning an agency must follow the rulemaking procedures set forth by the APA and
other statutory and executive order requirements to change or repeal a rule. Under the APA, agencies are
general y required to publish a notice of proposed rulemaking in the Federal Register, al ow “interested
persons” an opportunity to comment on the proposed rule, and, after considering those comments, publish
the final rule. Furthermore, in most cases, the final rule may not become effective until at least 30 days
after its publication.
Regulatory Moratoria and Postponements
Whereas a rulemaking process is general y required to overturn midnight rules that have been finalized by
the time a new President is sworn in, new Presidents typical y have more authority over rules that have
not yet been finalized. One approach Presidents have used to control rulemaking at the start of their
Administrations has been the imposition of a moratorium on regulations under development (i.e., those
that have not yet been published as final rules in the Federal Register). Such moratoria essential y have
halted on rulemaking activities within federal agencies and instructed the agencies to briefly postpone the
effective dates of rules that were issued at the end of the previous President’s term. The moratoria
general y have not applied to rules that are required under statute or by a judicial decision, nor have they
applied to rules at independent regulatory agencies, which are more independent from presidential
control.
Moratoria halting rules under way at agencies have been issued in the first days of most recent
Administrations—including the Reagan, Clinton, Bush, Obama, and Trump Administrations. Summaries
of most of these moratoria can be found in CRS Report R42612, Midnight Rulemaking: Background and
Options for Congress.
Options for Congress
Although actions pertaining to midnight rules often happen within the Administration, Congress also has
options for overturning or amending midnight rules. First, Congress can use its general legislative power
to overturn or amend regulations that already have been issued by an agency, prevent an agency from
finalizing rules it has already proposed or that are currently under development, or amend the statutory
authority underlying a regulation(s).
Congress also may use the Congressional Review Act (CRA) to disapprove final rules. The CRA contains
“fast-track” procedures for considering a joint resolution disapproving a rule. Notably, the CRA contains a

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provision—sometimes referred to as the lookback mechanism—that al ows a new President and Congress
to overturn midnight rules issued in the last several months of the outgoing Administration.
Alternatively, Congress can include so-cal ed limitation provisions in appropriations measures to prohibit
agencies from using appropriated funds for certain rulemaking-related purposes, including finalizing,
implementing, or enforcing rules.

Author Information

Maeve P. Carey

Specialist in Government Organization and Management

Disclaimer
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to congressional committees and Members of Congress. It operates solely at the behest of and under the direction of
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