When Does the President’s Authority End?

The following op-ed was submitted to and rejected by a major national newspaper. While it may not meet the high journalistic standards of that. newspaper, nevertheless, the facts and ideas stated in this article are correct and valid.

With the death of Associate Justice Ruth Bader Ginsburg on September 18, political turmoil with great electoral repercussions is facing the United States. Associate Justice’s Ginsburg’s death about 46 days before a bitterly contested election, the issue has become who should appoint the successor to Justice Ginsburg? President Trump has indicated  that he  intends to fill the position and with a Republican controlled senate at least until the end of 2020, it may be possible. The Democratic minority, hoping to become the majority and with polls favoring Democratic candidate Joe Biden. there is naturally  strong opposition to naming a replacement  until after the election with the winner naming the replacement. If President Trump and the Republicans prevail in November, the entire debate is moot. If the President is re-elected but faces a new Democratic controlled Senate after January 1, he and the lame duck Republican Senate might try to force the filling of the Court vacancy. If he fails to fill the seat by Jan 1, he will still be able to nominate a replacement but the Democratic Senate will need to consent and he will have to moderate his choice and consult with the Democratic majority in whom he selects. Of course, the Democrats point to Feb. 2016 when President Barack Obama nominated Court of Appeals Judge Merrick Garland to the seat made available by the sudden death of Associate Justice Antonin Scalia. With eleven months remaining in President Obama’s term, the Republican majority, led, then as now by Mitch McConnell of Kentucky refused to hold hearings on Judge Garland’s nomination, and the nomination expired with President Trump’s election. Should the Senate have acted on Judge Garland’s nomination in 2016 and should the Senate act on the expected nomination by President Trump? The history of lame duck presidencies is relevant. Noteworthy is that new Presidential terms began on March 5 until the inauguration of President Franklin D. Roosevelt on that date in 1933. The country was in the throws of the Great Depression and the four month interval between Election and Inauguration Days was too long. This was changed and FDR was sworn in for a second term on January 20, 1937, which has remained Inauguration Day since. The lame duck period was thus shortened from four months to two and a half months. Is this still too long an interval? The new congress takes office on January 1, but the presidency doesn’t change hands  until January 20. What if anything should be done?  Can we reasonably expect a lame duck President to be merely passive and inactive while life and the world goes on?  Can a newly elected President form a new government in days or weeks and start his or her term? It should be noted that not every country provides this long an interval. France provides for a change of Presidents within days of election, but it has a parliamentary form of government and the newly elected president does not need to immediately appoint a cabinet. The very brief interval is not that critical there, especially as a newly elected French President traditionally dissolves the parliament and new legislative elections are held which essentially gives him/her his interval. On January 3, 1961, lame duck President Dwight Eisenhower broke diplomatic relations with Cuba, just seventeen days before President-elect John F. Kennedy was  to be inaugurated. President Eisenhower was correct in exercising his authority as President as there can only be one president at a time and at that date he was the constitutionally responsible president. Should the Senate have acted on  Judge Garland’s nomination in February 2016? There can only be one answer-yes. And the same question in September 2020 has the same answer-yes. The Congress must recognize that the lame duck, in the warp speed world we live in retains authority until the last minute of his term. The only alternative is to change the date of Inauguration Day thus shortening the interval of the transition of power. Whether or not that is desirable remains to be resolved. Garry S. Sklar Sep.20, 2020