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Book Chapter

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This chapter focuses on Congress, our most democratic federal institution. Congress is generally responsible for defining the authorities possessed by the administrative state, and congressional oversight is key to holding agencies accountable for their actions. Midnight rulemaking also has the potential to increase congressional engagement. Two commentators have recently argued that relative inattention from Congress can facilitate midnight rulemaking, because Congress may meet less frequently during the lame duck period and there is no “repeat player” relationship between the outgoing president and the Congress. To the contrary, however, Congress retains considerable formal power to respond to and override presidential decisions, whether during the transition period or later on. To the extent there is a problem with congressional control over the administrative state, it is a more general one—whether Congress is sufficiently engaged to react to agency actions that veer too far from public concerns or preferences.

I want to suggest that midnight rulemaking can present a special opportunity to create an interbranch dialogue about the appropriate direction of the administrative state. Midnight rulemaking actions have been relatively high profile and controversial. As a consequence, they have prompted heightened public discussion. This in turn can generate greater attention in Congress and an interbranch dialogue regarding agency actions. In short, midnight rulemaking may on occasion ironically prompt a more deliberative, and ultimately a more democratic, decision-making process.