In a 2005 issue of Presidential Studies Quarterly, political scientists William Howell and Ken Mayer focused our attention to the power exercised by "lame duck" presidents. The conventional wisdom said that a lame duck president is one who has lost his capacity to govern and to be effective. What Mayer and Howell asked, in a very insightful essay, was if you looked at the record of our most previous lame duck president--Bill Clinton--how could conventional wisdom be true? Clinton had relied on a number of unilateral devices in order to make policy even if the system believed him to be neutered. Howell and Mayer warned us that we should not count the "lame duck" out.
And if you have been paying attention to President George W. Bush's final days in office, you can see what the two scholars mean.
President Bush has been busy helping important constituencies and building a positive image for future historians to judge his presidency on.
For instance, Bush has continued the practice (although he publicly stated he wouldn't) of issuing "Midnight Regulations"--regulations issued in the final days of the presidency that sometime tie the hands of the incoming administration. When Clinton left office, he lowered the regulations surrounding the permissible levels of arsenic in our drinking water, thus sticking a thumb in the eye of the incoming Bush administration. When the Bush administration placed the regulation on hold (to "study" its effectiveness) and hinted that it would restore the pre-regulation levels, it was pilloried by the press and environmental groups for wanting to poison the water of our women and children! Eventually it had to back away from this plan and let the Clinton order stand.
Bush has allowed regulations to go forward that narrowly interpreted the Clean Air Act by allowing industry not listed in the original act (now decades old) to pollute without having to install costly equipment to clean up its emissions, it has also placed a hold on a regulation that would ban certain antibiotics in the food that our cattle are fed for fear that it lessens the efficacy of the antibiotic in humans, and it has intervened in a spat between the Fish and Wildlife Services and conservationists over the protection of the Northern Rocky Mountain gray wolf, which has been a protected species, to the chagrin of ranchers. The Bush administration has pushed the agency to delist it from protection even though a district court ruling ordered that it should remain protected. And in one dandy of a move, the Department of Homeland Security issued an interim final rule that prohibits the use of expired forms of identification as acceptable ID for foreigners applying for a job to work in the US. While the rule itself may sound sensible, it is the process that is at question and one that may establish a dangerous precedent. In formulating and issuing the rule, the DHS did not hold a public review and comment period as required by law. Instead, DHS relied on the public review and comments for a similar rule that did not go forward and was proposed--get this--in 1998. Ten years ago. As reported in ProPublica, "The public had an opportunity to comment back then--and the department says those comments were considered when writing this rule." Never mind that the DHS itself didn't exist back then.
If you wish to keep tabs on the Midnight Regs, ProPublica has a nifty chart tracking each regulation.
On the other side of unilateral policy making, the president has the ability to set aside huge swaths of land as protected national monuments. The means to do this comes by way of a law over one hundred years old.
In 1906, the Congress passed--and Teddy Roosevelt signed--the Antiquities Act--which allows the president to establish national monuments by proclamation. And as Howell and Mayer argue, once established, they "could not be 'diestablished' by a subsequent proclamation." The only way his action could be overturned was by assembling "the necessary majorities and supermajorities required to enact a law--a difficult feat indeed, given the multiple veto points and collective action problems that plague the legislative process."
Bill Clinton, on his way out the door, set aside millions of acres of land out in the western United States--prime development land--as protected federal property. Clinton also set aside protected territory under water--millions of acres--off the coast of Hawaii, which brings us to the Bush administration.
In an action that has to have come about because of concern over legacy, President Bush has extended protections to 355,000 square miles of islands, reefs, and atolls throughout the Pacific Ocean. As you might have expected, this has shocked environmentalists, who have done battle with the Bush administration all the way back to the polluter-friendly "Clear Skies Initiative" and beyond. You know something is wrong with the picture when President Bush is praised by the Environmental Defense Fund, which said of Bush's action: "The president has given the Earth a Texas-size gift." That's nice.
So don't count the president out. Just like his predecessor, he may stay busy right up to 11:59 a.m. January 20--exercising every bit of power as he did 12:01 p.m, January 20, 2001.
