Notice & Comment

Midnight Agency Adjudication, by Margaret H. Taylor

A presidential election year provides a good time to reflect on administrative law scholarship addressing presidential transitions. “Midnight rulemaking” is a term used to describe the well-documented phenomenon of an increase in the volume of regulatory activity in the three months preceding a presidential administration. Scholarly literature and policy studies of midnight rulemaking are voluminous. But the rich literature on the topic of regulations promulgated in the time of presidential transition has not yet considered the adjudication analog of an agency head who refers a case pending on the administrative docket to herself and issues a new decision overturning agency precedent on her way out the door.

I recently published an essay in the Iowa Law Review Online, “Midnight Agency Adjudication:  Attorney General Review of Board of Immigration Appeals Decisions.” My essay was written as a response to an article by former Attorney General Alberto Gonzales and Patrick Glen that provided a detailed historical study of the Attorney General’s use of this authority, extolling in particular the “robust” exercise of Attorney General Review authority in the George W. Bush Administration.[1] Gonzales and Glen’s otherwise comprehensive account ignores a central feature of Attorney General’s review authority: timing. As I explain in the essay, just over half of the immigration decisions of the Attorney General in this era were decided in times of transition. Two of the most significant and controversial decisions were issued after President Obama was elected but before he took office; both of these decisions were later vacated by Attorney General Holder.

From an administrative law perspective, this is an important phenomenon. The same concerns voiced about midnight rules arise when an agency head in the incumbent administration refers a case to himself to decide on the eve of a presidential transition, particularly when the decision seems rushed and the outcome upends settled agency precedent and is likely to conflict with the policy preferences of the incoming administration. In addition, two key features distinguish midnight agency adjudication from midnight rulemaking — the comparative ease with which a decision can be reversed, and the absence of procedures that require notice and an opportunity to provide input for those who will be impacted by the agency decision.

As the examples in my essay illustrate, midnight agency adjudication can be overturned by an incoming presidential administration with relative alacrity, and thus may not create durable policy guidance.  In addition, as studies of midnight rulemaking establish, transparency is especially important when an agency attempts to set policy or establish new decisional frameworks on the eve of a presidential transition.  In some instances, however, the Attorney General certified immigration cases to himself for redetermination without notice or opportunity to be heard for the respondent facing deportation, which raises significant procedural due process concerns.

An abstract of my essay is available on my SSRN page.  You can download the full essay at the SSRN link, or via current issue of the Iowa Law Review Online here.


Margaret H. Taylor is a Professor of Law at Wake Forest University School of Law.

[1] Alberto R. Gonzales & Patrick Glen, Advancing Executive Branch Immigration Policy Through the Attorney General’s Review Authority, 101 Iowa L. Rev. 841, 895 (2016).

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