Midnight Foreign Policy?

In regulatory policy analysis, there is a phenomenon known as “midnight regulation”: a departing presidential administration will rush through regulatory changes before a new administration with a different agenda takes office. Perhaps the most famous example of this was in the final weeks of Jimmy Carter’s administration, before Ronald Reagan entered the White House.

The “midnight” period is usually defined as the final three months of a presidency, basically between election day and inauguration day. But a lame- duck administration cannot simply turn on the regulatory spigot after losing on election night. The rule-making process usually takes years to complete, and even proposed changes that are “in the pipeline” need months of lead-time to be accelerated to finalization in the midnight period.

For that reason, administrations that face tough reelection odds will begin preparing for a possible midnight well ahead of election day. Barack Obama did little midnight regulating in 2012, confident in his reelection. (Of course, he didn’t need to do such regulating because he won a second term, but there likely still would have been a jump in final regulations in late 2012 if the prep work had been done.) Conversely, Bill Clinton was ready to go at midnight in 2000 after seeing his designated successor, Al Gore, struggle on the campaign trail. Of course, administrations don’t always make correct predictions; Obama apparently was so confident Hillary Clinton would win in 2016 that he had few rules teed up for his 2016 midnight period.

What do members of Donald Trump’s administration think of his reelection prospects? Though the 2020 general election is more than a year away, the administration is now pushing through a major new rulemaking on what should be deemed Waters of the United States under the Constitution and thus subject to federal control. This may simply be a product of the president’s agenda, but it may also signal that some administration insiders see grim electoral writing on the wall.

Similar signals can come from outside the administration and occur in other policy areas. And they don’t need to come from American government; other nations may alter their foreign and military policies based on expectations of a change in the White House.

We may be seeing some examples of this now: Turkish President Tayyip Erdogan has invaded northern Syria while ignoring agreements, pleas, and threats from Washington. North Korean leader Kim Jong Un, who previously appeared to be appeasing Trump, has become defiant of the American president and is indicating that some big policy changes are on the horizon. And Chinese Premiere Xi Jinping seems to have gone into the “four corner stall” on the U.S.–China trade war.

What’s especially noteworthy is­ how these three countries are acting on their apparent belief that Trump will soon be gone. While Xi is milking the clock, Erdogan and Kim are hastening to seize on opportunities that likely will not continue under a hawkish successor administration. Turkey and North Korea are, in essence, engaging in midnight foreign policy.

I write this not to endorse or criticize the Trump administration’s foreign policy. Rather, my interest is in foreign nations’ strategic behavior given their appraisal of President Trump’s 2020 prospects. Will other countries—whether American allies (e.g., Germany, the UK) or rivals (e.g., Iran, Russia)—alter their own foreign policies if they expect Trump will soon be gone? And if so, what will those policy changes be? Will those countries try to wait him out, or act quickly on some perceived advantage that would end with his presidency?

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Thomas A. Firey is a Cato Institute senior fellow and managing editor of Cato’s journal Regulation.

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