Responses to Midnight Rulemaking: Legal Issues [January 21, 2021]   [open pdf - 655KB]

From the Document: "Hours after President Joe Biden took office on January 20, 2021, the White House issued a memorandum directing agencies to take action with respect to regulations that the Trump Administration issued shortly before the transition. It is common for federal agencies to increase rulemaking activity during the final months of a presidential administration--a phenomenon commonly known as 'midnight rulemaking.' Since Election Day, November 3, 2020, agencies in the Trump Administration issued final rules governing immigration adjudication proceedings; the construction, operation, and maintenance of gas pipelines; rebates under Medicare Part D; and a host of other subjects. Federal agencies also published a number of proposed rules that have not yet been finalized. Since President Reagan took office in 1981, incoming presidential administrations have routinely taken measures to respond to a prior administration's midnight rulemaking activities. This Sidebar explains how the Biden Administration may confront the bevy of rules recently finalized or proposed by the Trump Administration--including rescinding rules that have already taken effect, and suspending the effective dates of rules that were finalized by the prior Administration but which had not yet become legally effective--and how courts generally have responded to challenges to an agency's rescission or postponement of a final rule. This Sidebar also addresses actions Congress could take to rescind or prevent the implementation or enforcement of midnight rules with which it disagrees."

Report Number:
CRS Legal Sidebar, LSB10566
Public Domain
Retrieved From:
Congressional Research Service: https://crsreports.congress.gov/
Media Type:
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