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Tuesday, January 3, 2017
The Lame Duck Restraint Act
The American presidency has historically been accorded a unique place in national and international politics. The office combines the head of state with the head of government, which no other major nation has done. Moreover, we have retained the "Lame Duck" period between national elections, again something that no other major nation has done. Finally, Congress has granted (I would argue beyond its power to grant) effective quasi-legislative powers to the president through a variety of means.
Americans today see, in the hands of an infantile and dumb man like Barack Obama, just how dangerous that can be. His recent designation of various areas as protected from exploration for energy and other mineral wealth after his party lost all power in Washington is evidence of the need for immediate change.
While it would be best to simply remove all quasi-legislative power from all federal independent regulatory agencies, all executive agencies, and the president and to require, instead, that actions with the force of law be made only by Congress and no one else, that may not be possible until the political power of constitutionalism is stronger.
One reform, however, that Congress clearly should pass as soon as President Trump is sworn into office is the Lame Duck Restraint Act. This statute should repeal all quasi-legislative actions, like designating areas as national monuments, if taken by a president between a presidential election and the new president being sworn into office.
This should explicitly repeal all actions taken by President Obama between the November election and Obama leaving office. Republicans should note in passing this new reform that it will also bind all future presidents from using the "Lame Duck" period to do things which would have been dared if before an election. This new law should strip completely all of those powers given to any president by Congress during this "Lame Duck" period.
What about emergencies? Well, an easy answer would be to provide that a "Lame Duck" president could issue emergency orders whose effect ended the day that the new president took office. That new president could extend the emergency order for a limited period of time to review the matter or he could reaffirm the emergency order or he could allow it to automatically lapse.
How, exactly, would the left fight this reform? The actions of Obama are, of course, unconscionable and indefensible. Because all of Obama's "Lame Duck" quasi-legislative actions, including exercising powers resting wholly upon an Act of Congress like the Antiquities Act of 1906, come solely from Congress through statutes, Congress could simply and specifically nullify all of the "Lame Duck" actions by Obama with a single, detailed federal statue.
This reform would be nonpartisan in nature and would resemble, in some ways, the reforms that Speaker Gingrich had the new Republican House enact on its very first day in power – that is to say, this reform, like Gingrich's House reforms, were so clearly advancing good and responsible government that Democrats in Congress would find it tough to oppose the reform (just as Democrats in the House in 1995 overwhelmingly supported the Gingrich House reforms).
If that happened, and if significant numbers of Democrat senators from energy-producing states facing re-election like Joe Manchin (West Virginia), Heidi Heitkamp (North Dakota), Jon Tester (Montana), and Claire McCaskill (Missouri) supported this reform, as well as Democrat House members from these states, then the Lame Duck Restraint Act would become one of those recognized beneficial reforms of government that became law only when Republicans gained the power to pass this reform.
One final, delicious, ironic twist of the passage of the Lame Duck Restraint Act by clear and bipartisan majorities in both houses of Congress comfortably would be this: Obama would have that "legacy" in American political history which he so desperately craves, but it would not be the sort of "legacy" he would want. Obama would be "responsible," by his petulant and childish behavior, with a major reform in how American government operates.