Midnight Regulations: Examining Executive Branch Overreach
“Midnight” regulations or rules typically issued after Election Day, but before the next president takes office tend to cause a period of increased regulatory activity. Under both Democratic and Republican administrations, the midnight quarter between November and January is highly active for rulemakings, including controversial measures. OIRA Administrator Howard Shelanski has pledged to curb this practice, but Americans won’t know the success of this effort for another year. Both the Department of Energy (DOE) and the Environmental Protection Agency (EPA) have a busy schedule of regulations remaining in 2016. The recent history of DOE and EPA rules has already resulted in tremendous economic costs with more than $500 billion in burdens. This figure has real world consequences for consumers, employment, and the bottom line of countless companies. Reform options to curtail the practice of excessive midnight regulation could include the use of the Congressional Review Act (CRA), legislative approaches that ensure proper notice before final publication, and commitments from both the outgoing and incoming administrations to halt any expedited rulemakings.