Trump demonstrates why we should limit the powers of lame-duck presidents

Constitutionally, U.S. presidential power is all-or-nothing. Either one is president of the United States with the full scope of authority, or one is not, lacking any formal powers. This is the reality even after elections with lame-duck presidents and presidents-elect during transitions.  This needs to change.

As with so many other issues, Donald Trump’s presidency has revealed flaws in our   constitutional design, one created for a horse-and-buggy era, or when it was assumed that the leaders we selected would observe certain unwritten rules about the use of presidential authority.  Presidential transitions are one of those areas that need fixing.

The Constitution’s Framers likely gave little, if any, thought to presidential transitions in 1787.  They called for the Electoral College to pick the president, but there was no uniform date for when the electors would vote and no explanation about when a president would take office. George Washington took office on March 4, 1789, simply because that was the date the Constitution took effect. That date stuck until 1933, when the 20th Amendment set Jan. 20 as the date for a new presidential term to start. That amendment and the Uniform Time for Federal Elections Law, which dictates that the presidential election will occur on the first Tuesday after the first Monday in November, mean that between Election Day and inauguration day nearly two-and-a-half months will pass. This means that a person rejected by voters still enjoys the full perks of presidential power long after being voted out of office, while the newly chosen leader must wait to act.

It is not that way in other countries. Across the world, either transition periods are dramatically more brief in time, or the existing leaders are limited to performing caretaker functions. Yet handoffs of presidential power in the United States are different. While the Presidential Transaction Act of 1963 provides funding and resources for new presidents, it does little else.  Our Constitution leaves it to the incumbent and the president-elect to work out transitions. Historically, all but for 1860 with the election of Abraham Lincoln and the Civil War, the transitions have been mostly uneventful.

But outgoing presidents often have used the lame-duck period to cement in their legacy — for good and bad. They issue executive orders, grant pardons, or take other actions. Some would argue they use the opportunity to act without political constraints to do things they believe are good for the country but that may not be popular — again, such as issuing unpopular but merciful pardons, or invoking the Antiquities Act to preserve federal lands from development.

Yet President Trump’s last acts as president appear to be more destructive than good for the country. Witness his actions to try to overturn the election results, and his persistent refusal to cooperate in the transition by denying President-elect Biden’s team access to vital intelligence and other information that is important to national security. Also consider his decisions to veto a military budget bill, impede a pandemic relief bill, issue pardons to his supporters who broke the law, executive orders on the environment, and perhaps make foreign policy decisions that affect U.S. interests. At best, lame-duck presidents should not be able to make such major decisions. At worst, these appear to be efforts to sabotage an incoming administration before it gets started. 

One can hope that Donald Trump is a one-of-a-kind president and his exit is unique. But he is only the most extreme example of a problem regarding presidential transitions that should be fixed. The process of selecting a president involving the Electoral College may foreclose a shorter transition period — but even if it could be briefer, the use of lame-duck powers and the absence of authority for the president-elect persists.

By law, and perhaps constitutional amendment, these problems might be fixed. For example, we could limit lame-duck executive orders, presidential vetoes, judicial and other appointments, and pardons. Incoming presidents should have a say over post-election legislation and be given automatic access to intelligence, and perhaps even authority to take action in some situations.

The Founding Fathers were smart but they failed to think about presidential transitions of power.  Many presidents have sought to use post-election time as a last-ditch effort to cement their legacies, and Trump more than most has demonstrated the problems with leaving the hand-off of power to goodwill and chance.

David Schultz is a professor of political science at Hamline University in St. Paul, Minn. Follow him on Twitter @ProfDSchultz.