The Lame Duck Presidency: A Case for Restraint on "Midnight" Actions During the Transition Period

ACS is pleased to distribute The Lame Duck Presidency: A Case for Restraint on "Midnight" Actions During the Transition Period, an Issue Brief by Washington, DC attorney Ryan Patrick Phair. The Issue Brief analyzes the constraints that limit a lame-duck President in the interim between a Presidential election and the swearing in of the President's successor, applied in the context of the Bush-Obama transition. Mr. Phair argues that historically, although many lame-duck Presidents have engaged in so-called "midnight" actions in the waning hours of their terms, significant constitutional constraints limit a lame-duck President's ability to take unilateral, otherwise avoidable actions during the transition period. The author bases his analysis on the Oath and Take Care Clauses of the Constitution, which, he contends, "are framed not only as affirmative duties but also as constraints upon executive action," and are also reinforced by principles of democracy and accountability underlying the Constitution.