Anne Joseph O'Connell (Boalt) has posted an excellent paper on SSRN titled Regulation Clock and Political Transitions: An Empirical Portrait of the Modern Administrative State. The Abstract:
Despite the administrative state's vast scope, we know frighteningly little about how it operates as an empirical matter. This Article provides the first comprehensive empirical examination of agency rulemaking, with and without prior public comment, from President Ronald Reagan to President George W. Bush. It uses an immense new dataset I constructed from twenty years' (1983-2003) worth of federal agencies' semi-annual reports in the Unified Agenda of Federal Regulatory and Deregulatory Actions to examine variation in agency rulemaking activities. The Article focuses on rulemaking at the beginning and end of Presidential Administrations and around shifts in party control of Congress - midnight and crack-of-dawn regulatory activity - while also assessing some patterns outside those periods.
The empirical results offer rich new insights into the rulemaking process and the interplay of politics and regulation. Some of these insights are surprising. For example, certain agencies withdrew more proposed rules after political transitions in Congress than after a new President took office. Rather than capitalizing quickly on their electoral mandates, Presidents generally started fewer, not more, rules in the first year of their terms than in later years. Agencies generally did complete more rules in the final quarter of each Presidential Administration. Cabinet departments (as a group), however, finished more actions after the 1994 election than in President Clinton's last quarter. Although the press highlighted President Clinton's spate of midnight regulations, President George H.W.
Bush began over one-third more rules in the final quarter of his term than did President Clinton or President Reagan.
The results have potentially far-reaching normative and doctrinal implications for the functioning and oversight of the administrative state. Politics aside, many agencies have engaged in considerable notice and comment rulemaking, suggesting that the traditional regulatory process may not be significantly ossified. Nevertheless, rulemaking without prior comment has increased across a wide range of agencies, a trend that may be strong enough to persist despite the Supreme Court's 2001 decision in United States v. Mead Corporation, which makes notice and comment rulemaking more attractive. Focusing on politics, these shifts in regulatory agendas during political transitions undermine theories of judicial deference based entirely on agency expertise. But they do not support a political accountability theory based solely on the President. Rather, the shifts call attention to the importance of Congress, in addition to the President, for bureaucratic oversight. In sum, the timing of rulemaking raises interesting questions about the effectiveness and legitimacy of the administrative state.