Yesterday, Donald Trump sent out not just one but three tweets that directly interfered with current U.S. policy efforts, involving the costs of a new jet fighter plane, nuclear weapons, and a U.N. resolution criticizing Israel. This understandably is causing consternation in the Obama administration, because Trump is exercising influence without authority. Until January 20, 2017, Donald Trump has no official position or authority in the government at all. He does have power and influence, however, because everyone knows that he will have authority very soon.
What constitutes abuse of the power and influence? Should a President Elect be a mute and invisible presence until he is officially sworn in, so as not to interfere with the current President’s discharge of his duties?
For the lame duck Chief Executive, with slightly more than two months left in office and vastly diminished influence, the ethical problem is different. How much should he defer to the incoming President, and not take actions that will seriously interfere with the policy directions the new President may choose to take? Once the will of the people has been made clear at the ballot box, is it fair and responsible for current President to actively work against the likely agenda of the incoming President?
Finally, if a lame duck President is attempting to undermine the objectives of the incoming President before that President Elect takes office, is it unethical for the President Elect to use his influence and power to stop him, or at least mitigate the damage?
This is the so-called “Two Presidents Problem,” and it is not new. The dilemma only occurs when the President Elect is from a different party than the sitting President; it’s happened 22 times, counting the current transition. I haven’t done the research on all of these potentially transitions, but I assume most of them didn’t involve wholesale attempts by one or both of the two Presidents to undermine each other, either because of the periods in which they took place or the individuals involved. However, it is a very old problem.
The landmark Supreme Court case of Marbury v. Madison arose out of an iteration of the “Two Presidents” dilemma. In the election of 1800, Democratic-Republican Thomas Jefferson defeated John Adams, the Federalist The vote count became final on February 17, 1801 and Jefferson would not take office until March 4, 1801. Until that time, President Adams and the Federalist-controlled Congress were still in power, so during this lame-duck session, Congress passed the Judiciary Act of 1801 modifying the Judiciary Act of 1789 and establishing ten new district courts, expanding the number of circuit courts from three to six, and adding additional judges to each circuit, The law also gave the President the authority to appoint Federal judges and justices of the peace, and reduced the number of Supreme Court justices from six to five. On March 3, the day before Jefferson became President, President Adams, obviously attempting to undermine the incoming Democratic-Republican Congress and administration, appointed sixteen Federalist circuit judges and 42 Federalist justices of the peace to the new offices created by the Judiciary Act. Among these infamous “Midnight Judges” was William Marbury, a Federalist and loyal supporter of Adams, whom Adams appointed to the position of justice of the peace in the District of Columbia for a five-year term.
Adams’ appointments were approved by the lame duck Senate, but the commissions had to be delivered to the judges before they became official. This was impossible to accomplish before Adams was out of office and his rival Jefferson was in. On March 4, Thomas Jefferson became the President, and to foil Adams, he ordered his Attorney General and acting Secretary of State not to deliver the remaining appointments. Without the commissions, the appointees were unable to assume their offices and duties. Jefferson claimed that the appointments were void. Marbury sued the new Secretary of State James Madison to keep his appointment.
Adams’ appointments were unethical. The government of the United States is meant to run efficiently and in the best interests of the public, and that kind of intentional sabotage of a new Chief Executive is driven by non-ethical considerations and distrust. In a reasonable, bi-partisan system, the President-Elect and the outgoing President would sit down, negotiate, and cooperate with each other. The current President would agree not to make any crucial decisions or policy moves that he knew his successor would oppose or have to reverse. The President Elect, in return, would agree not to do or say anything that would undermine the President’s power while he was in office. Such a negotiation would almost certainly require an implied threat of Tit for Tat: “If you double cross me, the deal’s off!”
Did Trump and Obama make such an arrangement? I doubt it. Obama can’t or doesn’t like to negotiate, Trump is too impulsive to agree to restrain himself, and neither man trusts or respects the other. If the deal was made, Obama’ conduct in making two late and irreversible appointments to the Civil Rights Commission and the Arctic and Atlantic oil drilling ban surely breached it, as did, arguably, Trump’s controversial phone call to Taiwan. I cannot imagine two Presidents less likely to come to an ethical accord to avoid the “Two President Problem,” but with almost a month left to go, it is to be fervently desired that they do. Both of these guys are capable of doing serious damage on their own under the best of circumstances; having one actively working to make the job harder for his successor while the other intentionally throws monkey wrenches into the current administration’s gears out of mischief, carelessness or spite is a recipe for disaster.
Perhaps nothing has more underlined the Obama arrogance than his final flurry of midnight regulations. With each new proposed rule or executive order, Mr. Obama is spitefully mocking the nation that just told him “enough.”
The technical definition of a midnight regulation is one issued between Election Day and the inauguration of a new president. The practice is bipartisan. George W. Bush, despite having promised not to do so, pushed through a fair number of rules in his final months. But Jimmy Carter and Bill Clinton were more aggressive, and Mr. Obama is making them look like pikers.
Mr. Obama has devoted his last year to ramming through controversial and far-reaching rules. Whether it was born of a desire to lay groundwork for a Clinton presidency, or as a guard against a Trump White House, the motive makes no difference. According to a Politico story of nearly a year ago, the administration had some 4,000 regulations in the works for Mr. Obama’s last year. They included smaller rules on workplace hazards, gun sellers, nutrition labels and energy efficiency, as well as giant regulations (costing billions) on retirement advice and overtime pay.
Since the election Mr. Obama has broken with all precedent by issuing rules that would be astonishing at any moment and are downright obnoxious at this point. This past week we learned of several sweeping new rules from the Interior Department and the Environmental Protection Agency, including regs on methane on public lands (cost: $2.4 billion); a new anti-coal rule related to streams ($1.2 billion) and renewable fuel standards ($1.5 billion).