Lame Duck Lawmaking and Rulemaking

I have long thought that lame duck lawmaking is an outrageous and illegitimate practice.  Lame duck lawmaking occurs in two principal ways.  First, it occurs when the Congress passes statutes after the election in a lame duck session.  In this circumstance, we have a Congress composed of a significant number of legislators who will shortly terminate their offices and may never stand for election again.  Such lawmaking is particular bad when one or more of the houses have changed control or when the President has changed party.  Second, lame duck lawmaking occurs when the administrative agencies pass regulations after the presidential election,  especially when they know that the new administration would not have enacted those regulations.

Lots of questionable actions have been taken during lame duck sessions.  But whether they make sense or not, pursuing them during the lame duck session deprives them of legitimacy.  Both parties do it.  The Democrats passed CERCLA in the lame duck session of 1980.  The Republicans impeached President Bill Clinton during the lame duck session of 1998.

President Obama’s administration is now reportedly pursuing a significant lame duck regulatory session.  This should hardly be surprising from a president who aggressively used his power to push his agenda, notwithstanding norms regarding limits on presidential power.

The sad fact about this matter is that it could be reformed.  The best way to reform Congress’s lame duck actions is to pass a constitutional amendment requiring a 2/3 supermajority of each house to take an action in the period between the election and the new Congress.  In this way, Congress could still take important actions that are supported by a consensus.  Moreover, the Congress could still take all of the preliminary steps to a final decision, such as holding hearings, which would allow actions that require speed to be taken up for a final vote by the new Congress.  Assuming that a constitutional amendment were not enacted, each house of Congress could pass a rule that required the supermajority (although that rule could be repealed by a simple majority).

The lame duck agency lawmaking would even be easier to reform.  Congress could simply pass a law providing that all rules that are promulgated during the lame duck period should not take effect until a certain period of time after the new President assumes office.  In this way, the new administration would have time to eliminate the new regulation without having to go through the notice and comment process.

Mike Rappaport

Professor Rappaport is Darling Foundation Professor of Law at the University of San Diego, where he also serves as the Director of the Center for the Study of Constitutional Originalism. Professor Rappaport is the author of numerous law review articles in journals such as the Yale Law Journal, the Virginia Law Review, the Georgetown Law Review, and the University of Pennsylvania Law Review. His book, Originalism and the Good Constitution, which is co-authored with John McGinnis, was published by the Harvard University Press in 2013.  Professor Rappaport is a graduate of the Yale Law School, where he received a JD and a DCL (Law and Political Theory).

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  1. gabe says

    Mike:

    Isn’t there already some statute that affords the Legislative a 60-day (?) period after promulgation of Admin edicts to reject those regulations?

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