Earlier, I made the case for a constitutional amendment drastically contracting in the present two-and-a-half-month period between the presidential election and the inauguration. I pointed out that the historical reasons for this prolonged lame-duck period no longer exist.
In addition, it has become a time for mischief and diminished governing. President Bush is empowered but pathetically unable to govern; President-elect Obama is earnest and active, but hampered in what he can legally, constitutionally do.
The result is undemocratic deadlock. It leads to abuses. For example, presidents who rarely use their pardon power during their administrations invoke it in the dark of night in the waning days of their administration. It is done then because they won’t be around to account for their disgraceful misuse of power. It is behavior that makes the public rightly cynical.
It is also a time, as Elizabeth Kolbert pointed out in the recent New Yorker, when the practice of “midnight regulations” goes into high gear. In their final hours, administrations — Democratic and Republican — issue literally thousands of executive orders and regulations requiring no congressional approval. These autocratic and special-interest favors go into effect after being recorded in the Federal Register. Again, this is an example of irresponsible and mischievous undemocratic government. It goes on in the shadows of interregnum, when administrations soil the house of government. It is “the midnight period,” when mischief is done in the dark of night.
With little time to accomplish legitimate tasks, government employees use time on the federal payroll to job-hunt, take vacations and carry out this kind of cynical government mischief. Presidential appointments should end soon after the election, rather than these high-level officials — U.S. attorneys, for example — who were appointed by the out-of-office president, sitting around for months serving at the pleasure of a president who was, in effect, unelected.
Better we adhere to Yogi Berra’s wisdom and assure that it’s over when it’s over. When a new administration is elected, the prior government should be over, except for a necessary, but very brief period of responsible baton-passing. That should not take two and one-half months.
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