Document Type

Article

Publication Date

2014

Keywords

Midnight rulemaking

Disciplines

Administrative Law | Law and Politics | President/Executive Department

Abstract

Under a common view, the administrative state inherits democratic legitimacy from the President, an individual who is envisioned both to control administrative agencies and to be electorally accountable. Presidents' administrations continue issuing rules, however, even after Presidents lose elections. Conventional wisdom holds that Presidents use the "midnight" period of their administrations-the period between the election and the inauguration of the next President-to issue unpopular and controversial rules. Many regard this midnight regulatory activity as democratically illegitimate. Yet we have scant evidence that presidential administrations in fact issue controversial or unpopular rules during the midnight period. In this Article, I examine the content of notice-and-comment rules issued between 1983 and 2010-roughly 20,000 rules-to assess whether midnight regulatory activity plausibly reflects a failure of political accountability. Consistent with a simple theory of political incentives, I find that the administrations of last-term Presidents issue considerably more controversial rules, as measured by the level of public commenting on rules, the level of dissent associated with rules, and the size of rules. However, I depart from the conventional account in finding suggestive evidence that presidential administrations sometimes use the midnight period to "rise above" ordinary politics rather than exclusively to dole out regulatory favors to interest groups. Industry groups, for example, challenged President G.W. Bush's midnight rules in court at aberrational rates. I discuss the implications of these patterns for the unitary executive theory and the democratic legitimacy of the administrative state.

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