Commentary: Is There a Silver Lining to Midnight Mischief?

Abstract

Even the dullest of publications can make good reading during the last few months of a presidential administration. This is especially true when the incoming president is from the opposing political party. Those months typically witness, at least since the 1970s, a rush to publish many new regulations in the Federal Register as the incumbent administration scrambles to leave its mark on national policy. Despite the fact that late-term rulemakings are often considered unsporting and a form of policy mischief, occasionally such rulemakings - due to the controversy they prompt - appear to facilitate greater democratic participation in the rulemaking process, especially when Congress gets involved. Determining whether a particular debate in Congress actually affected an administrative decision, however, is a difficult undertaking as illustrated by the rulemakings addressed in this paper. One cannot, however, gainsay the value of additional dialogue in a democratic society. The ultimate question, nevertheless, is whether it occurs often enough and in significant enough fashion to outweigh all of the negatives produced by such midnight mischief. Chief among those negatives, perhaps, is the fact that the outgoing administration has abjured an opportunity to set a more constructive tone during a transition period, a tone that could possibly reduce partisan rancor and perhaps lead to more bi-partisan cooperation during the next administration. One might hope that future administrations would demonstrate more civility in pursuit of smoother and more productive transitions. Unfortunately, that is most likely a vain hope.

Keywords: administrative law, midnight rulemaking, rulemaking