Regulating in the Dark: Examining Bush Midnight Regulations

Conventional wisdom holds that presidents’ powers quickly evaporate the moment they are voted out of office.[1] Members of Congress and even career executives within federal agencies have little reason to heed a lame-duck president’s advice or fear retaliation. Consequently, a lame-duck president’s ability to push legislation through Congress or enact political priorities greatly diminishes. This view, however, underestimates the arsenal of political tools at the president’s disposal. In the absence of congressional cooperation, outgoing administrations turn to executive orders, memoranda, and regulations to pursue their political priorities. Research indicates that they make extensive use of their arsenal to promote a favored political agenda.

As presidential terms near their end, midnight regulations often resurface in the public discourse. The Clinton administration was criticized for publishing a record number of regulations in its final days.[2] George W. Bush administration’s last minute rulemaking drew similar criticism.[3] In recent years, Congress took up the issue as well. In anticipation of a midnight regulatory surge at the end of the Bush administration, New York Democrat Jerrold Nadler introduced “Midnight Rule Act” on November 20, 2008.[4] The bill called for a delay in implementing the agency rules adopted in the last 90 days of a president’s final term. Gearing up for the potential midnight period of the Obama administration, a Wisconsin Republican Reid Ribble introduced a similar bill in 2012 that called for a moratorium on midnight regulations.[5]

Despite the frequent criticism of midnight regulations in media and Congress, evidence of their negative impact is mixed. While the surge in midnight regulations is well documented,[6] the motivation behind it and whether the surge presents a problem is subject to debate.[7] Scholars question whether the last minute surge stems from benign procrastination or if regulations’ timing is politically motivated.8 In addition, some scholars argue that midnight regulations tend to be rushed and have lower analytical quality, thereby wasting societal resources.[9]

In this paper, I examine whether political motivation plays a role in the timing of some midnight regulations. I further examine whether political motivation has a negative impact on the analytical quality of midnight regulations. In contrast to other studies that focus on the overall regulatory activity using proxies, I concentrate on a detailed analysis of three regulations issued in the final days of the Bush administration.

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