The Biden Administration has been engaged in lame duck actions that are problematic because they would not have been done prior to the election. They are made worse by the fact that the President appears to have serious dementia, raising the question as to who is really taking these actions.
For many years now, I have criticized such actions and have argued for reforms. Here are some posts on the subject:
Lame Duck Lawmaking and Rulemaking (2016)
Let's Pass a Constitutional Amendment Prohibiting Lameduck Pardons (2017)
The Language of the Lame Duck Pardon Amendment (2017)
From the first of these posts:
The sad fact about this matter is that it could be reformed. The best way to reform Congress’s lame duck actions is to pass a constitutional amendment requiring a 2/3 supermajority of each house to take an action in the period between the election and the new Congress. In this way, Congress could still take important actions that are supported by a consensus. Moreover, the Congress could still take all of the preliminary steps to a final decision, such as holding hearings, which would allow actions that require speed to be taken up for a final vote by the new Congress. Assuming that a constitutional amendment were not enacted, each house of Congress could pass a rule that required the supermajority (although that rule could be repealed by a simple majority).
The lame duck agency lawmaking would even be easier to reform. Congress could simply pass a law providing that all rules that are promulgated during the lame duck period should not take effect until a certain period of time after the new President assumes office. In this way, the new administration would have time to eliminate the new regulation without having to go through the notice and comment process.
Posted at 5:31 PM