June 20, 2012


Jack Beermann Authors New Guidelines for White House "Midnight Rulemaking"

BU Law Professor Jack Beermann has authored new guidelines on the practice of “midnight rulemaking” by outgoing presidential administrations. The guidelines were unanimously adopted on June 14 by the Administrative Conference of the United States, an independent federal agency made up of representatives from each of the government’s 50 agencies.

Beermann worked with the agency for a year, researching, writing and formulating recommendations about the practice, which has been made famous by such last-minute regulations as Reagan allowing random drug testing for transportation workers, Clinton pushing through new rules on workplace injuries, and Bush ensuring that federally funded health care institutions were allowed to turn down abortion requests on the basis of religious concerns.

According to Beermann, the new guidelines, if adopted by the executive and legislative branches of the federal government, would cause a “lower volume of rulemaking at the end of the presidential term, the new administration would have more time to review the late-term work of the outgoing administration and the whole process would be much more transparent.”

Key recommendations from the conference are that future administrations should adopt any midnight rules as early as possible to “avoid an actual or perceived rush,” to publically explain the timing of any “significant rule” (defined as likely to have an annual effect on the economy of $100 million or more), and to give lawmakers the authority to allow agencies to delay new regulations for up to 60 days without notice or comment. The conference also found that despite the perception, most midnight rules were under consideration far before the November elections and many were routine matters that did not create new policy.

Susan Dudley, a professor at George Washington University who served in the George W. Bush administration’s Office of Management and Budget and who is a member of the Administrative Conference told the Capital Hill Roll Call that she thinks the new rules “are sound and focus appropriately on midnight regulations that are rushed with inadequate analysis and opportunity for public comment without constraining a president’s legitimate authority.”

The Administrative Conference’s evaluation of midnight regulations included empirical studies of rulemaking at the end of presidential terms and review of judicial decisions and scholarly studies on the subject. Beermann was selected as the consultant to the project in May 2011.  

Reported by Chelsea Sheasley


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