Today’s Ask Civics 101 question comes from Kathleen Smith from Littleton, New Hampshire: What about the lame duck period between the election and the inauguration, if the incumbent president is not re-elected?
Read on, or listen to this short episode for the answer.
What is the lame duck session?
It is the time between when the president and members of Congress are elected and when they are sworn into office. The history of the term goes back to the Colonial era - it was used to refer to failing traders and businessmen who were unable to fund their enterprises and therefore pay their shipping costs.
They were financially limping along like a lame duck, like a wounded game bird that might be shot by a hunter. Currently, the lame duck session lasts until January 3rd, but it used to be much longer!
The 20th amendment, which set the January 3rd start date, was ratified in 1933 Prior to that, new presidents started their term in March at the earliest. This caused enormous problems, specifically in 1860, when South Carolina seceded from the United States before Lincoln took office in 1861.
What can Congress do during a lame duck session?
In the modern era, not a whole heck of a lot. Before the 1970s, presidents sometimes used their “pocket veto.” If a president doesn’t sign a bill into law and congress is in session, it automatically becomes a law. But if they don’t sign it and Congress is not in session, it does not become a law. Also, when the president makes appointments when Congress isn’t in session, they don’t need Senate confirmation.
To get around this, Congress in the 1970s started never not being around. They would hold pro-forma sessions, where the vice president (as president of the Senate) would take the train to Washington DC, gavel the Senate into session, ask if anyone had Senate business, adjourn, and head back home.
But Congress is not entirely powerless during a lame duck session. They can pass unpopular legislation, because their actions are no longer electorally accountable. And while that’s fairly rare on a national level, state and local legislatures also have lame duck sessions, and it’s not uncommon for them to pass laws that are not popular with the public, especially if that state’s House or Senate is going to flip on January 3rd.
We saw this in Wisconsin in 2018 when an outgoing GOP congress worked overnight to pass laws limiting the incoming Democratic governor’s power.
What can presidents do during the lame duck session?
Presidents have the same powers as during the rest of their administration. They can issue executive orders and agreements, and they can issue orders to the rest of the executive branch. The problem the president runs into during the lame duck session is that a lot of times the executive branch isn't around because they’re taking their holiday vacation.
One final power of the president that is often invoked in the lame duck era is granting pardons. Outgoing president Bill Clinton was widely criticized for issuing 140 pardons at the end of his term. As to whether a president can pardon themselves during a lame duck session, that question has not yet been addressed in the courts.