The Risks of Regulating in the Dark

January 18, 2017

Sofie E. Miller

Download this Article (Federalist Society Review)


The promise—or threat—of midnight regulations looms now, in the final days of the Obama administration. “Midnight” regulations are those issued after the November presidential election but before Inauguration Day as the outgoing administration attempts to finalize its regulatory policy priorities with a surge of rulemaking activity. This significant uptick in regulation, so common at the end of presidential administrations, is likely to affect more than just the number of pages in the Federal Register. Scholars have theorized that midnight rules are problematic because they short-circuit important procedural safeguards that ensure high-quality regulatory outcomes, like rigorous analysis, internal and external review, and public input in the rulemaking process. Stepping beyond theory, recent examples—such as the Department of Energy’s energy efficiency standards for clothes washers—illustrate that midnight rules impose real burdens. This article retrospectively examines DOE’s midnight regulation and its effects on consumers.