Countdown To Midnight On The President's Regulatory Priorities

Susan E. Dudley

by Susan E. Dudley, Director

January 26, 2016
The full text of this commentary originally appeared on where the author is a reoccurring contributor.
Regulatory activity tends to surge in the final year of a presidential administration. Significant legislation from Congress is unlikely, and regulations are one of the few tools available for outgoing executive branch officials wanting to leave a legacy. The last three months in particular have historically seen a flurry of “midnight regulation” before a new president is sworn in. In an effort to get ahead of that rush, Howard Shelanski, Administrator of the Office of Information & Regulatory Affairs (OIRA), recently sent a memo to executive agencies asking them to,
"to the extent feasible and consistent with [their] priorities, statutory obligations, and judicial deadlines, … strive to complete their highest priority rulemakings by the summer of 2016 to avoid an end-of-year scramble that has the potential to lower the quality of regulations that OIRA receives for review and to tax the resources available for interagency review.”
If agencies heed Shelanski’s guidance in this memo, it may help ensure that new regulations receive adequate scrutiny, which may translate to better regulatory outcomes. Research suggests that during midnight periods, OIRA spends less time reviewing each regulation, which can lead to a spike in lower-quality regulations. Another motive for acting early is that last minute regulations are more vulnerable to being overturned by congress or the next president. (I’ll have more to say about this in future posts.)
Whether the Shelanski memo has any effect on the pace and quality of regulations at midnight remains to be seen, however. I served as OIRA Administrator during the last two years of the Bush Administration, and know from experience that the pressures and incentives to complete regulations before the stroke of midnight are powerful. Like Administrator Shelanski, I admonished regulatory agencies to focus on their priorities long before the final few months of the president’s term.