Combating Midnight Regulation
Northwestern University Law Review Colloquy
29 Pages Posted: 18 Jan 2009 Last revised: 20 Jan 2009
Date Written: January 17, 2009
The flurry of regulatory activity by the outgoing administration of President George W. Bush has raised, once again, the specter of midnight regulation. Whatever the reason for midnight regulation, there seems to be a general consensus that something has gone wrong when an outgoing administration takes important action while the incoming administration is essentially waiting to take over. Most late term action is subject to the obvious question of "if this action was so important, why didn't the administration take it in the last seven and three-quarters years or so?" Even though the Constitution leaves the incumbent in office for approximately eleven weeks after election day, we feel 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. This article examines possible ways to combat midnight regulation, beginning with a recent proposal in Congress to restrict rulemaking activity during the last 90 days of an outgoing administration by giving the incoming administration the power to "disapprove" of regulations adopted in the final 90 days of a President's term. The first part of the article explains the bill and identifies problems with it. The second part of the article offers two alternative approaches, one involving a reform to administrative law and another outlining statutory proposals different from the bill proposed by Representative Nadler.
Keywords: midnight regulation, administrative law, presidential power
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