Midnight regulations

Midnight regulations are United States federal government regulations created by executive branch agencies in the lame duck period of an outgoing president's administration.

The United States Congress passes laws that sometimes outline only broad policy mandates. Rulemaking by the specialist agencies in the executive branch adds necessary detail to these laws. Rulemaking also provides an administration with an opportunity to exert political influence over government without having to go through Congress to change the law.

U.S. federal law mandates a 60-day waiting period before any major regulatory changes become law. Thus, some presidents try to publish new major regulations on November 21, 60 days before the new president's inauguration on January 20. "Minor" regulations, or those that have less than US$100 million in effect on the economy or do not have major social policy significance, have a similar 30-day waiting period. Tom Firey, of the Cato Institute's Regulation magazine, argues that most midnight regulations are in fact primarily political symbolism rather than major regulatory change. Regulations that have not yet become law can be placed on hold by the incoming President.

Regulations that take effect before a new president takes office can still be reversed by the same executive agencies, but this requires a considerable rule-making process. In addition, reversing recently enacted regulations may distract an incoming administration from its own regulatory agenda. Alternatively, because regulations are executive branch agencies' interpretations of statutes passed by Congress, Congress can effectively overturn the regulations by passing more explicit statutory mandates. But in each case the period in which the disfavored regulations are law may permit undesired results to take place. For example, a heavily-polluting power plant could be built in the period that a federal regulation is law. A third option is for Congress to overturn the regulation under the Congressional Review Act of 1996, requiring congressional approval for any similar rule issued in the future. Of the 50,000 regulations enacted since the Act was passed, only one has been so overturned.

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