The Last One Hundred Days

Article excerpt

A lame duck President might look at his authority to govern in the transition period as if it were a large balloon with a slow leak.... The balloon is ineluctably shrinking with each passing week.... By the end of the year, he will have lost the attention of the permanent government and can accomplish very little.

--James Pfiffner (1996, 5)

As his "long goodbye" in 2000-2001, Clinton was "a whirling dervish of a President who appointed judges, signed treaties, gave campaign-style speeches, issued scads of executive orders, rescinded ethics regulations he had penned in his first term, raised political money, gave dozens of interviews, granted 234 pardons and clemencies, fired an enemy from her government job, negotiated his own plea-bargain agreement, cast aspersions on his successor, installed a crony as head of the Democratic Party, and gave an entire series of farewell addresses in which he essentially said he wasn't leaving at all."

--Carl Cannon (2001, 274)

A curious thing happens during the last one hundred days of a presidential administration: political uncertainty shifts to political certitude. The president knows exactly who will succeed him--his policy positions, his legislative priorities, and the level of partisan support he will enjoy within the new Congress. And if the sitting president (or his party) lost the election, he has every reason to hurry through last-minute public policies, doing whatever possible to tie his successor's hands.

Can he succeed? If James Pfiffner's quote above is any indication, prospects are dim. Defeated at the polls in November and guaranteed political retirement in January, an outgoing president has little ground upon which to advocate for his (someday her) policy agenda. During his final months in office, his public prestige and professional reputation--the ingredients of persuasion, and the purported foundations of presidential power--run empty. Members of Congress have little cause to do a defeated president's bidding; and without them, presidents cannot hope to accomplish anything of consequence. As such, outgoing presidents have little choice but to recognize their plight, gather their belongings, and close the door on their administration.

In our estimation, this misconstrues things. By ignoring important policy options outside of the legislative process, scholars have exaggerated the frailty of outgoing presidents and underestimated the influence they continue to wield. Presidential power does not reduce to bargaining, negotiating, and convincing members of Congress to do things that the president cannot accomplish on his own. Presidents can (and regularly do) act alone, setting public policy without having to rally Congress's attention, nor even its support (Cooper 2002; Howell 2003; Mayer 2001). With executive orders, proclamations, executive agreements, national security directives, and memoranda, presidents have ample resources to effectuate policy changes that stand little chance of overcoming the collective action problems and multiple veto points that plague the legislative process. And having "lost the attention of the permanent government," outgoing presidents have every reason to strike out on their own, set new policy, and leave it to the incoming administration to try and steer an alternative course.

Examples of last-minute presidential actions abound. It was President John Adams's "Midnight" appointments, which Jefferson refused to honor, that prompted the landmark Marbury v. Madison Supreme Court decision. Grover Cleveland created a twenty-one-million-acre forest reserve to prevent logging, an act that led to an unsuccessful impeachment attempt and the passage of legislation annulling the action. Then, in response to the congressional uprising, "Cleveland issued a pocket veto and left office" (Combs 2001, 331). Jimmy Carter negotiated for the release of Americans held hostage in Tehran, implementing an agreement on his last day in office with ten separate executive orders, many of which sharply restricted the rights of private parties to sue the Iranian government for expropriation of their property. …