Midnight Regulations, Judicial Review, and the Formal Limits of Presidential Rulemaking
B.J. Sanford
On three occasions, administrative agencies complied with orders of new Presidents to delay the effective dates of “midnight regulations” promulgated in the final days of the outgoing administration. Although rulemaking pursuant to presidential directives is increasingly common, the agencies’ exclusive reliance on presidential authority in these instances is unusual; the delays thus presented a rare opportunity for judicial review of presidential rulemaking. In this Note, B.J. Sanford argues that the delays were illegal. First, they cannot withstand the traditional “hard look” review of administrative action because they do not contain adequate justifications grounded in the authorizing statute. More importantly, by relying on presidential decree rather than statutory authority, the agencies crossed the thin formal line be- tween legally bounded administrative rulemaking and straightforward legislation, producing a constitutionally unacceptable concentration of arbitrary power. Although the immediate impact of this violation may be small, the consequences of repeated acquiescence to it may be much greater, as even small formal deviations, if not consistently challenged, can threaten the system of dispersed power contemplated by the Constitution.
