Monday, December 29, 2008

Phair on Constitutional Constraints on a Lame Duck President

Ryan Patrick Phair recently published a very thoughtful American Constitution Society Issue Brief titled The Lame Duck Presidency: A Case for Restraint on "Midnight" Actions During the Transition Period.  The Brief explores constitutional limits on a lame duck president and argues that President Bush has exceeded his constitutional authority in two key areas--the Status of Forces Agreement and the Strategic Framework Agreement with Iraq, and midnight regulations.  (We've posted previously on Bush administration midnight regulations here, here, here, and here.)

Phair argues that the Oath and the Take Care Clause, along with the structure of the constitution, create constitutional constraints on the lame duck president, and that the nature and extent of the constraint depend upon five factors.  Phair:

While there is room for disagreement as to what actions may be so constrained, and a lame-duck President is likely only answerable to himself and historians, a strong argument can be made that a lame-duck President has a constitutional duty to avoid taking any unilateral, otherwise avoidable actions during the transition period that would significantly tie the hands of an incoming administration in many circumstances.  The circumstances giving rise to such a duty would likely depend on consideration of five key factors:

1.  Whether the proposed policy or course of action is a unilateral exercise of executive power that is unchecked or opposed by Congress;

2.  The extent to which the proposed policy or course of action would bind or tie the hands of the President-elect against his wishes, including whether the President-elect could undo the action and, if so, how difficult it would be to accomplish;

3.  The extent to which the proposed policy or course of action is avoidable;

4.  The extent to which the proposed policy or course of action represents the popular will, taking into account the lame-duck President's popular support; the salience of the issue in the election; and the degree to which voters can be fairly deemed to have passed judgment on it; and

5.  The institutional interests of the presidency and the best interests of the country.

Phair applies the factors to the Iraq SOFA and Strategic Framework, and to the Bush administration midnight regulations, and argues that these actions are unconstitutional.  As to the midnight regulations, he explores possible fixes for the Obama administration under the Congressional Review Act.

Phair's analysis is thoughtful and persuasive--even if you take issue with the factors--but it fails to give enough attention to the constitutional counterpoints, principally that the Term Clause gives a president a term of four full years (with full Article II powers).  As a result, the Brief, it seems, is really an argument against a transition period (and not an argument for constitutional constraints during the transition period, which would have to be balanced more seriously against the Term Clause).  This doesn't make the Brief any less persuasive, thoughtful, or valuable.  But it places Phair's argument in just slightly different company, most notably (and recently) with Sandy Levinson's series of posts criticizing the transition period on Balkinization

Whether an argument for constraints on a lame duck president or an argument against a transition, it's well worth a read.


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