November 19, 2020
Midnight Rulemaking: The Once and Future Phenomenon
In the last few weeks of the Trump Administration, some are raising concerns about how aggressive the administration will be in promulgating “midnight regulations” – rules finalized between Election Day and the inauguration of a new president. In a new insight, AAF’s Senior Regulatory Policy Analyst Dan Goldbeck looks back at the post-election regulatory activity of previous administrations and finds that midnight rulemaking is hardly a novel practice. In fact, the Obama Administration is a particularly stark example of accelerating the pace of rulemaking in the midnight period, Goldbeck notes.
The clock is ticking on the Trump Administration’s ability to push forward its policy preferences on the regulatory front. There may be prudential concerns regarding either its actions in particular or the practice of “midnight rulemaking” writ large. Those concerns, however, are for either the incoming administration, future Congresses, or the courts to address. One can expect the Trump Administration to continue apace on implementing its regulatory agenda until January 20, 2021, and it would be well within the bounds of recent precedent to do so.