Document Type

Working Paper

Publication Date

8-28-2015

SSRN Discipline

Legal Scholarship Network; PSN Subject Matter eJournals; Law School Research Papers - Legal Studies; Administrative Law eJournals; LSN Subject Matter eJournals; Political Institutions eJournals; Health Economics Network; Sustainability Research & Policy Network; Political Science Network

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 lateterm 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 bipartisan 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

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