Volume 109
Issue 4
March '21

Grounding the Lame Duck: The President, the Final Three Months, and Emergency Powers

Written By: Ari B. Rubin

Abstract

A controversial President has decisively lost the election. His successor is months or even weeks from taking office with a shadow Cabinet already in place. Perhaps the new Congress has begun its session. Then the economy craters. Or terrorists strike. What are the limits on the outgoing President’s power? Constitutionally, there are none. The old refrain binds: we have one President at a time. But in moments of crisis, is there constitutional guidance or authoritative norms that courts or other decisionmaking bodies may harness to prevent a lame duck from making lasting, destructive decisions? And if so, should those parties intervene? 

During the Cold War, leaders devoted untold resources to prepare for a nu-clear attack that never occurred. Planners perfected continuity of government plans and built underground cities. But no plans exist for a President who refuses to leave office or takes other radical lame-duck actions. Standard checks and balances—congressional overrides or impeachment—would likely be useless. And there are no authoritative court holdings for decisionmakers to follow. That is the void this Note seeks to fill.

It is ideally the courts and Congress—but worryingly the military or masses—that might choose to act if a President takes radical lame-duck actions. This Note shows that the other branches have a right and, arguably, a duty to do so. It goes on to draw a unified doctrine from the Constitution and case law proving not only why but also when they should intervene. To ensure practical and predictable enforcement and help dissuade a norm-busting President from taking radical lame-duck actions, this Note also urges decisionmakers to enshrine the lame-duck doctrine into a discrete law or new constitutional amendment. 

Continue reading Grounding the Lame Duck: The President, the Final Three Months, and Emergency Powers.