Jack M. Beermann[*]
The flurry of regulatory activity by the outgoing administration of President George W. Bush has raised, once again, the specter of midnight regulation. In contrast to the late-term action of the Clinton Administration, much of the Bush Administration’s late-term action seems to have been more deregulatory than regulatory, but from a political and legal standpoint, that distinction may not make much, if any, difference. While midnight regulation provokes an instinctively negative reaction, it is not completely clear what is wrong with it. This uncertainty arises in part because of the different reasons for midnight regulation. In my earlier work on this subject, I identified four possible reasons for late-term action, and in this Essay I add a fifth, although I confess a lack of knowledge on whether this fifth reason is actually a significant factor in midnight regulation. The original four are: (1) the natural human tendency to work to deadline, which has been referred to in the literature as the “Cinderella constraint;” (2) hurrying to take as much action as possible near the end of the term to project the administration’s agenda into the future; (3) waiting to take potentially controversial action until the end of the term when the political consequences are likely to be muted; and (4) delay by some external force that prevented the administration from taking desired action until late in the term. The fifth, and new, possible reason for late-term action I call “timing.” Timing is a form of waiting, not based on potential negative consequences, but rather, based on the desire to achieve something positive before the presidential election in order to help either one’s own reelection bid or the election prospects of the incumbent party. One can imagine, for example, the President delivering an October surprise of favorable regulatory action for the automobile industry if Michigan looks like a swing state in the upcoming election.
Whatever the reason for midnight regulation, there seems to be a general perception that something has gone wrong when an outgoing administration takes important action while the incoming administration is waiting to take over. Most late-term action is subject to the obvious question of why, if the regulation was deemed so important, the administration failed to act during the previous three or seven and three-quarters years. The lines of normative critique of midnight regulation are fairly evinced by each of the factors posited above. Thus, even though the Constitution leaves the incumbent in office for approximately eleven weeks after election day, the public feels uncomfortable when an outgoing administration waits until late in the term to take politically controversial action or loads up on late-term actions to project its policy preferences in the future.