The Clock Strikes Midnight: Agency Rulemaking as Obama Exits Office

(image by Yuki Kishimoto

by Derek Gower

Obama’s glass slippers are becoming worn and torn as the electoral clock comes to an end.  Bureaucrats are being rushed to pass regulations that solidify President Obama’s agenda for years to come.  The “Cinderella constraint” illustrates the behavior of policymakers at the end of their term: “[A]s the clock runs out of time on the administration’s term in office, would-be-Cinderellas—including the president, cabinet officers, and agency heads—work assiduously to promulgate regulation before they turn back into ordinary citizens at the stroke of midnight.” (Cochran 2001.) This increase in agencies’ regulatory activity observed at the end of presidential terms shows that changes in political leadership can quickly affect the agency rulemaking process. (Cochran 2001.) 

This cycle of increased regulatory output by agencies prior to a presidential election is known as midnight regulation, a systematic and cross-party phenomena defined by a sudden outburst of regulatory output by agencies at the end of presidential transitions. (O’Connell 2008.)  Prior to President George W. Bush’s exit from office, the Environmental Protection Agency (EPA) issued a controversial regulation that favored the deregulation of factories by expanding the amount of hazardous waste that could be burned for industrial purposes. (O’Connell 2011.)  The EPA’s policy with respect to the incineration limits of hazardous waste is characteristic of “midnight” regulation because of the timing and, in part, because of the incongruence of this regulation with the EPA’s mission and regulatory purpose.

Upon entering office, President Obama responded to President George W. Bush’s midnight regulations by issuing a memorandum to agency heads. The memo advised agencies to consider extending the effective date of regulations submitted by agencies until Obama’s administration had time to review the content of each regulatory policy. (O’Connell 2001.)  It is clear that the effect of a leaving president engaging in midnight regulation generally leads to incoming presidents withdrawing regulations initiated during previous administrations. This holds true across party lines and disregards the type of presidential transition that occurs. It does not matter whether a transition results in party turnover in the executive branch; the negative “crack-of-dawn” response by the incoming president towards midnight regulation remains constant.

It will be interesting to see how agencies react to President Obama’s exiting office and how their policymaking process is sped-up or altered in regards to the incoming president.  It is still too early for agencies to be proposing policy with political certitude of who will be the next President of the United States.  Midnight regulation typically occurs after primary elections, when political uncertainty of who (or what party) will be in the White House turns into political certitude. (Howell & Mayer 2005.)  More substantive research is needed to quantify and identify important factors that shape the transition from “political uncertainty” to “certitude,” and how this perspective consequently influences an agency policy agenda’s “scope” and its rulemaking process.

Sources:

Cochran, Jay III. 2001. “The Cinderella Constraint: Why Regulations Increase Significantly During Post Election Quarters.” Mercatus Center Review

Lewis, David E. 2011. “Presidential Appointments and Personnel.” Annual Review of Political Science 14:47-66.

O’Connell, Gersen E. 2011. “Agency Rulemaking and Political Transitions.” Northwestern Law Review 105: 471-512.

O’Connell, Gersen E. 2008. “Political Cycles of Rulemaking: An Empirical Portrait of Modern Administrative State.” Virginia Law Review 94: 889-1016.

Derek Gower is a Master’s candidate in Public Policy at the College of William & Mary and an Associate Editor of the William & Mary Policy Review.

Editor’s Note: Comments may be moderated for content. 

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