Tuesday, November 25, 2008

Transition Myths

As the risks from another two months of drift continued to grow over the last week, President-elect Obama was forced to all-but-abandon the notion that there is "only one President at a time." Thus, yesterday he rolled out his economic team. Meanwhile, there is certainly no reason why he could not offer a plan to the lame-duck Congress for it to pass now, effectively daring still-President Bush to veto it. (Obama's arguably premature resignation from his Senate seat makes this marginally more difficult to get through the current Senate.)

The larger point is that the notion of one-President-at-a-time is literally true in general but only important in particular areas: especially in foreign affairs and conduct of the military, where it really would be disruptive to have more than one person acting as President. In part this concern explains why some of Jimmy Carter's post-Presidential peace efforts have been controversial, and why the more common pattern for ex-Presidents is some combination of extremely lucrative after-dinner speaking and uncontroversial charitable works. That said, in many areas, it makes sense for the President-elect to act as a de facto President, especially where the lame-duck President is either unwilling or unable to do anything.

Meanwhile, here's another myth that's circulating these days: It's very hard to undo midnight regulations. As Jamie Colburn noted in an earlier post, there is an extant law, the Congressional Review Act, that provides a ready procedure for Congress to undo agency rules adopted in the last days of a Presidential administration. Moreover, the new heavily Democratic Congress (even assuming the Minnesota and Georgia Senate seats stay Republican) can undo just about any odious regulations it wants to undo simply by passing a law repealing them. The rigorous requirements of the Administrative Procedure Act do not apply to Congress itself, after all, and a later-in-time (or, for that matter, an earlier-in-time) statute prevails over an inconsistent reg.

I say "just about any" rather than "any" reg, because some regulations create property interests in private owners, such that a statute repealing them would amount to a taking of property requiring the federal government to pay just compensation, per the Fifth Amendment. But outside that small category, the obstacles to repeal of a lame-duck Administration's midnight rules are political and practical: a strip-mining company that gets permission to chop off the top of a mountain may do just that before Congress has a chance to repeal the permission. A disturbing number of last-minute Bush regulatory initiatives may have that character, but those that are reversible could be reversed. Perhaps that should be the second bill the new Congress passes, right after the omnibus $800 billion stimulus/green-energy-incentive/health-care-reform/middle-class-tax-cut bill that President Obama signs in the first 10 minutes after he takes the oath of office.

Posted by Mike Dorf