Midnight Regulations and Regulatory Review

33 Pages Posted: 23 Sep 2008

See all articles by Jerry Brito

Jerry Brito


Veronique de Rugy

George Mason University - Mercatus Center

Date Written: September, 22 2008


The term "midnight regulations" describes the dramatic spike of new regulations promulgated at the end of presidential terms, especially during transitions to an administration of the opposite party. As commentators have pointed out, this phenomenon is problematic because it is the result of a lack of presidential accountability during the midnight period -- the time after the November election and before Inauguration Day. Midnight regulations, however, present another problem that receives little attention. It is the prospect that an increase in the number of regulations promulgated in a given time-period could overwhelm the institutional review process that serves to ensure that new regulations have been carefully considered, are based on sound evidence, and can justify their cost.

The regulatory review process that every president since Richard Nixon has used to check his own administration's regulations is now operated by the Office of Information and Regulatory Affairs (OIRA), which is charged with reviewing all proposed new significant regulations. The problem is that while the number of regulations proposed spikes during the midnight period, the resources available to OIRA remain constant.

Although the problem is perennially highlighted in the press, few satisfactory solutions to the phenomenon have been proposed. One possible solution to address the effects of midnight regulation on regulatory review might be to cap the number of regulations agencies may submit to OIRA for review during a given time-period.

Keywords: oira, midnight regulations, regulatory review, regulation

JEL Classification: K2,

Suggested Citation

Brito, Jerry and de Rugy, Veronique, Midnight Regulations and Regulatory Review (September, 22 2008). Administrative Law Review, Vol. 61, 2008, Available at SSRN: https://ssrn.com/abstract=1272078

Veronique De Rugy

George Mason University - Mercatus Center ( email )

3434 Washington Blvd., 4th Floor
Arlington, VA 22201
United States

HOME PAGE: http://www.mercatus.org/scholars/veronique-de-rugy

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