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When Presidents Make Rules Heading Out the Door

LAW prof proposes guidelines for “midnight rulemaking”

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Jack Beermann, Boston Univeristy BU, School of Law LAW professor, Harry Elwood Warren Scholar, political rulemaking, presidential rules end of term

LAW Professor Jack Beermann’s guidelines for federal rulemaking were endorsed by a government advisory agency. Photo by Kalman Zabarsky

“Midnight rulemaking”—the tendency of presidents leaving the White House to issue 11th-hour regulations before their successors come in—is bipartisan. Or tripartisan: the Federalist John Adams did it in 1801, stacking the bench with “midnight judges,” some of whom Thomas Jefferson’s incoming administration refused to seat. But Jimmy Carter put the practice into overdrive, according to the Capitol Hill newspaper Roll Call, unleashing “an avalanche of rules” before handing the White House keys to Ronald Reagan.

George W. Bush tried, with modest success, to reduce his administration’s midnight rulemaking, says Jack Beermann, a School of Law professor and Harry Elwood Warren Scholar. Beermann was hired by the Administrative Conference of the United States, an independent federal agency with members from federal agencies, the private sector, and academia that seeks to improve administrative processes, to draft guidelines for improving last-minute rulemaking. Last month, the conference unanimously endorsed his guidelines, which ask Congress to codify in law a power new presidents have exercised in practice: suspend the effective date of imminent midnight rules for up to 60 days to allow for a careful review of them. For nonimminent rules, the guidelines suggest that an administration allow a public comment period of at least 30 days before altering any of them.

BU Today discussed the proposed guidelines with Beermann, who is a noted scholar in the field of civil rights litigation against state and local governments. He has written several books on administrative law.

BU Today: How and why did you get the job of drafting these guidelines?

Beermann: At the time I was hired, I’d already published three articles on the issue of presidential transitions and last-minute regulation. The Administrative Conference put out a request for proposals. I put in a response. It was in May of 2011. There were some amendments proposed to my guidelines, and some were agreed to, some were rejected. There were things that I wanted that there wasn’t agreement on.

For example?

I don’t want to really talk about that. I feel like my role at this point is to represent what we came out with. I’ll give you an example of one I wanted that raised some eyebrows, but went in as I proposed: one undesirable thing is when agencies, before a transition in presidencies, issue rules creating new consultation requirements and restrictions on the use of federal funds. You live eight years under a particular set of requirements, and now they’re going to add or subtract from those requirements in a way that only their successors are going to be affected by. Same with funding restrictions. Educational institutions like Boston University live big-time with that; federal money has all kinds of requirements. Those kinds of changes ought to occur early in an administration, or they shouldn’t occur at all. That was one of my original recommendations; some people were skeptical, but ultimately that sailed through.

You’ve said the guidelines don’t sharply alter current practices. So what’s the point?

Ever since Ronald Reagan, every president, when they’ve come in after a change in party, has ordered a freeze on all regulations and postponed the effective dates of regulations that have just been promulgated, to give their new administration time to review them. There’s a question whether that’s legal. One of our recommendations is to make that legal—for Congress to pass a statute giving the incoming administration authority to do that explicitly, to resolve any doubts. They could rest easy, but it would not be a change in practice.

Do you have any idea if or when Congress will act?

Who knows if and when Congress will do this. When Obama became president, there was a Democratic-sponsored bill to stop the outgoing administration from doing anything, to basically freeze all regulations. That didn’t go anywhere.

George W. Bush tried to reduce his administration’s last-minute rulemaking and did not succeed. Does that suggest agencies are understaffed?

“Understaffed” is relative. Agencies could do more if they had more staff, but do we want them to do more? The Clinton administration accomplished a great deal of rulemaking in its last quarter of existence. It’s a combination of maybe needing more bodies and needing more determination. If you put someone under an earlier deadline, they’ll try to work to that deadline.

Sometimes, getting things done in the prior administration is a favor to the incoming administration. People have floated the idea of having a freeze—no regulations in the last 90 days of an administration. The problem is, things would back up like crazy. It’s hard to sort between illegitimate rules and the normal, routine operation of government that needs to keep going. You’ve got a country to run.

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Rich Barlow

Rich Barlow can be reached at barlowr@bu.edu.

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