Combating Midnight Regulation

The flurry of regulatory activity by the outgoing administration of President George W. Bush has raised, once again, the specter of midnight regulation. In contrast to the late-term action of the Clinton Administration, much of the Bush Administration‘s late-term action seems to have been more deregulatory than regulatory, but from a political and legal standpoint, that distinction may not make much, if any, difference. While midnight regulation provokes an instinctively negative reaction, it is not completely clear what is wrong with it. This uncertainty arises in part because of the different reasons for midnight regulation. In my earlier work on this subject, I identified four possible reasons for late-term action, and in this Essay I add a fifth, although I confess a lack of knowledge on whether this fifth reason is actually a significant factor in midnight regulation. The original four are: (1) the natural human tendency to work to deadline, which has been referred to in the literature as the ―Cinderella constraint;‖ (2) hurrying to take as much action as possible near the end of the term to project the administration‘s agenda into the future; (3) waiting to take potentially controversial action until the end of the term when the political consequences are likely to be muted; and (4) delay by some external force that prevented the administration from taking desired action until late in the term. The fifth, and new, possible reason for late-term action I call ―timing.‖ Timing is a form of waiting, not based on potential negative consequences, but rather, based on the desire to achieve something positive before the presidential election in order to help either one‘s own reelection bid or the election prospects of the incumbent party. One can imagine, for example, the President delivering an October surprise of favorable regulato-