Now that the midterm elections have confirmed two more years of divided government, speculation runs rampant as to how the president will use his vaunted pen to enact his agenda via regulations. The more ominous danger, however, is not a regulatory surge after this election, but the tsunami that could occur after the presidential election in 2016.
The rush to implement pressing priorities at the end of an administration prompts regulators to short-circuit the deliberative process that is supposed to inform regulatory decisions. As a result, many “midnight” regulations issued at the end of a president’s term are less likely to solve real problems at a reasonable cost. To prevent this recurring problem, the federal regulatory process must be reformed to ensure that agencies cannot cut corners on regulatory analysis just because they are in a hurry.