When we deal with a two term president like Reagan, Clinton, and now Bush, once that last midterm is passed all eyes start looking to the next president. And in that last year, the president gets hung with the label "lame duck," unable to move anything through the Congress (especially when it is held by the opposition party) or to move the public to follow him in his cause. This is how political scientists William Howell and Kenneth Mayer described the president once the election for the next president is held:
The moment the public boots him from office, the president's promises turn hollow, his threats idle, his political capital effete. As there is little presidents can do for those who occupy other parts of the federal government, there is little reason for them to expend much effort, or time, advancing his agenda. The president's capacity to negotiate, broker deals, and ultimately persuade is, at last, depleted.
But yet the president continues to push his policy and he continues to defend and advance the powers of his office. In a 2005 study in Presidential Studies Quarterly, Howell and Mayer looked at the final days of a president who has either lost a re-election bid or is a two term president on his way out, and they found great evidence of a president still exercising tremendous power. They looked at President Clinton, who used executive orders to advance environmental policy and proclamations to take millions of acres of private land in the Southwest and make them public, much to the ire of ranchers and developers. Both look at the Federal Register, where all administrative rules are published, and find that in those final days, the number of pages in the Register increase rather than decrease, providing evidence of a president still vigorously pushing his policy administratively rather than legislatively.
The Mercatus Center at George Mason released a study this year confirming the findings by Howell and Mayer. The term for the flurry of administrative rules is "Midnight Regulations" taken after the "Midnight Judges" of the Adams administration in 1801. The term "Midnight Regulations" was invented to describe what President Carter accomplished right before leaving office in 1981. Carter set a record for number of pages printed in the Register which stood until Clinton, who "published more than 26,000 pages" in just the final three months of his presidency.
These are important for two reasons. First, they often tie the hands of the incoming president who ends up stuck with these decisions. For instance, when Bush came into office in 2001, he attempted to undue the environmental policy changes made by President Clinton and found that he would expend all of his energy from his other policy promises and still not undue the regulation. In fact, the Mercatus report confirmed this fact that a lame duck president is anything but. They refer to a Wake Forest Law Review article (.pdf required) that looked at George H.W. Bush's last minute regulations and Clintons. Clinton was able only to undo 9% of Bush's regulations while accepting 43%, and George W. Bush was able to undo only 3% of Clinton's regulations while accepting 82%.
Second, presidents can use these last minute regulations in order to fulfill policy obligations or to protect the prerogatives of the office. President Clinton's environmental order and public lands proclamation was designed also to place his stamp as an "environmental" presidency. Promises he made to various interests on the campaign trail. Since no one was watching, what better time to act "alone?"
Which brings me back to the issue of "power." The reason why so many traditional and mainstream scholars miss these actions is because the are so tied to seeing power as a calculus--when the president is new or popular, he has power. Instead, an alternative measure of power exists that is not as sensitive to such things as popularity and time in office. Call it presidential unilateralism, which instead suggests that the president carefully monitors the political system to determine what sorts of strategies to employ--when he has a good working relationship with the Congress or the public, he is more like to involve outside actors when developing and executing policy. But when conditions turn harsh, the president is forced to turn to other strategies in order to succeed--signing statements, executive orders, proclamations--you name it. And for the most part he can embark on a unilateral strategy so long as he does not step on the collective toes of Congree or as long as he does not raise the curiosity of the press and public. Thus at the end of a president's time in office, when Congress is unwilling to work with him and the press no longer does his bidding, the president is forced into a unilateral strategy to finish what needs finished.
Thus pay attention to the actions of President Bush in the coming months. You might be surprised at the bold moves coming from a president everyone assumes is weak.
Update, 7/21
I heard from Charlie Savage this morning, who was kind enough to send me to an article he and Robert Pear wrote in May regarding the Bush administration and midnight regulations, the subject of this post.
The administration issued a mandate to all agencies (.pdf) that they were to file all proposals for new regulations by June 1 and all are prohibited from issuing any final regulations after November 1. According to the White House, these two orders are "good government" in that there are no regulations that are hastily pushed through without proper vetting. The article quotes "legal specialists" who claim that the policy also insures that the policy protects orders from being overturned by new president, although as this post points out, it is incredibly difficult for the new administration to overturn regulations from the previous administration given how those regulations are fiercely protected by vested interests, thus forcing a new president to burn a lot of energy that could be better spent on campaign promises.
Despite the stated promises, there continue to be great pressures on the administration from their friends in the business communities--especially energy concerns--who will be very worried should Senator Obama win the presidency this November. They will seek regulatory protections to be put in place before the Senator becomes president in January. As I said when I closed this post yesterday--keep your eyes on the administration in those final months in office.
