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Agency Rulemaking and Political Transitions

64 Pages Posted: 4 Dec 2011 Last revised: 8 Dec 2011

Anne Joseph O'Connell

University of California, Berkeley - School of Law

Date Written: June 1, 2011


This Article examines agency rulemaking during the periods surrounding political transitions. Using a new comprehensive database on agency rules that covers the period from 1983 to 2010, it describes key stages of the rulemaking process - initiations, completions, and withdrawals - over time. In addition, it analyzes the connection between political transitions, both presidential and congressional, and of one major judicial transition, and the duration of completed rulemakings. Not all rulemakings are completed, however, so this Article also examines the relationship between transitions and whether proposed rulemakings are withdrawn. The primary aim of this Article is to describe major elements of the rulemaking process and to suggest potential consequences of presidential and congressional transitions for that process. The idea that political transitions shape the agency rulemaking process is not a new one. There has been, however, scant empirical evaluation of such transitions for the initiation and completion of rules, particularly across several administrations and broken down over a range of agencies. In addition, there has been almost no analysis of the withdrawal of proposed rules after political transitions. This Article helps to fill both those gaps. Traditionally, after noting particular empirical realities, legal scholarship turns to considering the implications of these realities for doctrine and to suggesting proposals for reform. Instead of this traditional turn, the secondary aim of this Article is to examine the implications of the empirical work for politicians. Specifically, it suggests effective strategies for outgoing and incoming presidents, assuming that these presidents care about advancing their policy preferences.

Keywords: administrative agencies, midnight regulation, rulemaking, initiated rules, completed rules, withdrawn rules, political transitions, Unified Agenda, administrative law

Suggested Citation

Joseph O'Connell, Anne, Agency Rulemaking and Political Transitions (June 1, 2011). Northwestern University Law Review, Vol. 105, 2011; UC Berkeley Public Law Research Paper No. 1967733. Available at SSRN:

Anne Joseph O'Connell (Contact Author)

University of California, Berkeley - School of Law ( email )

215 Boalt Hall
Berkeley, CA 94720-7200
United States
(510) 643-9393 (Phone)

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