Bush's midnight regulations: the 43rd president may set yet another dubious record.

• Author: de Rugy, Veronique
• Position: Column

THE POLITICAL SCIENTIST James Pfiffner has compared the ability of a lame-duck president to achieve anything in his final months in office to "a balloon with a slow leak that shrinks with each passing week until it hits the ground" Yet in his waning hours, President George W. Bush managed to rush through an unprecedented number of late-breaking regulations, ranging from a rule increasing the length of time truck drivers can stay behind the wheel to a requirement that organizations providing aid to victims of sex trafficking certify that they do not advocate prostitution.

Midnight regulation is the term of art for the spike of new regulations promulgated between the election of a new president and Inauguration Day. These new rules, often too controversial to have been adopted earlier in the president's term, come at such a pace that they overwhelm the institutional review process, which is intended to ensure that new regulations have been carefully considered, are based on sound evidence, and have benefits that outweigh their cost.

Virtually every modern president has gone out with such a bang, though it wasn't until the lame-duck regulatory outburst of President Jimmy carter that the term midnight regulation was coined. But it was President Bill Clinton's then-unprecedented passage of new rules in late 2000 that sparked a renewed interest in the use of presidential power between an election and a new administration.

During Clinton's midnight period, his administration published more than 26,542 pages in the Federal Register, a 51 percent increase over the average number of pages published during the same quarter of the previous three years of Clinton's second term. The regulations affected everything from water quality to minimum efficiency standards for air conditioning, heat pumps, and washing machines.

Midnight regulation is not just a Democratic phenomenon. Late in his presidency, despite an alleged regulatory "moratorium," President George H.W. Bush's administration issued scores of significant new rules, making a mockery of its alleged commitment to regulatory sobriety.

In a March 2008 study, the Duquesne University economist Anthony Davis and I found that, between 1948 and 2007, when the White House switched parties, the number of Federal Register pages in the outgoing administration's final quarter was on average 17 percent higher than the number of pages issued during the same period in nonelection years. We found that, with the...