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Congressional
Research Servkc
Presidential Transitions:
Midnight Rulemaking
November 24, 2020
In Section 2 of the Presidential Transition Act of 1963 (as amended; 3 U.S.C. 102 note), Congress
declared that [t]he national interest requires that [presidential] transitions ... be accomplished so as to
assure continuity in the faithful execution of the laws and in the conduct of the affairs ofthe Federal
Government, both foreign and domestic. The crux of such a transition is the transfer of executive power
from the incumbent to the President-elect. The executive's power manifests in a variety of processes with
application to a broad range of policy areas and issues. CRS has produced a set of products examining
selected processes and policies that may be of particular interest during a presidential transition. This
Insight discusses options available to a new Administration for repealing or amending midnight rules
issued by the prior Administration. Other related products examine clemency, executive orders,
government records, presidential appointments (executive branch), and presidential transitions generally.
Midnight Rulemaking Overview
During the final months of recent Administrations, federal agencies often have increased the pace of their
regulatory activities. This phenomenon is often referred to as midnight rulemaking. Because it can be
difficult to change or eliminate rules after they have been finalized, issuing midnight rules can help ensure
a legacy for an outgoing President-especially when an incoming Administration is of a different party.
Some concerns that have been raised over midnight rulemaking include the decreased political
accountability for an outgoing Administration; the potential for rules that are hurried through at the end of
an Administration not to have the same opportunity for public input; and the potential for the quality of
regulations to suffer during the midnight period, because the departing Administration may issue rules
quickly and without subjecting them to rigorous review or analysis. In addition, some have argued that the
task of evaluating a previous Administration's midnight rules could potentially overwhelm a new
Administration.
By contrast, one study from 2012 cited evidence of the strategic use of midnight rulemaking but
concluded that the perception of midnight rulemaking as an unseemly practice is worse than the reality.
The Administrative Conference of the United States issued a number of recommendations regarding
midnight rulemaking in 2012, concluding that many midnight rules were relatively routine matters not
Congressional Research Service
https://crsreports.congress.gov
IN11539
CRS NSIGHT
Prepared for Membersand
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