Paul Horwitz[*]

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Introduction

Ever since Bruce Ackerman introduced us to the phrase, constitutional lawyers have come to think of "constitutional moments" as momentous and irregular.[1]   They are assumed to be extraordinary occasions on which the nation rethinks its constitutional commitments and, in effect, rewrites them outside the formal constitutional amendment process.  In two centuries of constitutional history, Ackerman identifies only three such constitutional moments, including the Founding itself.[2]   The rest of the time, constitutional government exists in the realm of ordinary politics.[3]

I want to suggest another approach.  Constitutional moments are momentous, but they are not irregular.  To the contrary, they are routine.  In particular, the changeover of executive power that we are undergoing right now bears witness to a simple proposition: every presidential transition is a constitutional moment.

American politics routinely treats the peaceful transition of executive power as evidence of the Republic's continuity and stability.  But each presidential transition is also a moment in which at least one branch of the federal government must consider anew what the Constitution means and what it demands, and ratify or rescind the constitutional readings that have come before.  Every such succession embodies the tension inherent in constitutional moments—the tension between consistency and change.

This Essay argues that the constitutional moment represented by the presidential transition is instantiated in a single act: the taking of the presidential oath.  That oath is both an official action and a deeply personal one, and the combination is significant.  It suggests the intimate connection between the official duties assigned to the President by Article II of the Constitution and the personal honor of the President.  By committing himself to preserve the Constitution and fulfill his Article II duties, the President ties his own honor to a particular understanding of the Constitution.[4]   That understanding is indefeasible: he cannot simply defer to the understanding of the courts, of Congress, of prior presidents, or even of the people.  In taking the Constitution's measure, the President is ultimately on his own.

We have come to think of honor as a largely obsolete virtue.[5]   But it has not yet vanished, and its importance crests in the moment of the taking of the presidential oath, as virtually every individual to take the oath has recognized.  As Barack Obama prepares to take his own oath as the 44th President of the United States, it is worth considering what that oath means and what implications it has for his presidency.

Jack M. Beermann[*]

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The flurry of regulatory activity by the outgoing administration of President George W. Bush has raised, once again, the specter of midnight regulation.[1]  In contrast to the late-term action of the Clinton Administration, much of the Bush Administration's late-term action seems to have been more deregulatory than regulatory, but from a political and legal standpoint, that distinction may not make much, if any, difference.  While midnight regulation provokes an instinctively negative reaction, it is not completely clear what is wrong with it.  This uncertainty arises in part because of the different reasons for midnight regulation.  In my earlier work on this subject, I identified four possible reasons for late-term action, and in this Essay I add a fifth, although I confess a lack of knowledge on whether this fifth reason is actually a significant factor in midnight regulation.  The original four are: (1) the natural human tendency to work to deadline, which has been referred to in the literature as the "Cinderella constraint;"[2] (2) hurrying to take as much action as possible near the end of the term to project the administration's agenda into the future; (3) waiting to take potentially controversial action until the end of the term when the political consequences are likely to be muted; and (4) delay by some external force that prevented the administration from taking desired action until late in the term.  The fifth, and new, possible reason for late-term action I call "timing."  Timing is a form of waiting, not based on potential negative consequences, but rather, based on the desire to achieve something positive before the presidential election in order to help either one's own reelection bid or the election prospects of the incumbent party.  One can imagine, for example, the President delivering an October surprise of favorable regulatory action for the automobile industry if Michigan looks like a swing state in the upcoming election.

Whatever the reason for midnight regulation, there seems to be a general perception that something has gone wrong when an outgoing administration takes important action while the incoming administration is waiting to take over.  Most late-term action is subject to the obvious question of why, if the regulation was deemed so important, the administration failed to act during the previous three or seven and three-quarters years.  The lines of normative critique of midnight regulation are fairly evinced by each of the factors posited above.  Thus, even though the Constitution leaves the incumbent in office for approximately eleven weeks after election day, the public feels uncomfortable when an outgoing administration waits until late in the term to take politically controversial action or loads up on late-term actions to project its policy preferences in the future.

David Fontana[*]

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Introduction

One of the central questions raised by comparative constitutional law is whether the American constitutional system is somehow different, or even exceptional, when compared to the systems of other countries.  As Stephen Gardbaum has written, "even within the common framework of . . . modern constitutional fundamentals, there is still a pervasive sense that the United States remains broadly exceptional or different."[1]  Whatever the veracity of this conventional wisdom as applied to the rest of the American system, it is undeniably true that the events dominating the United States since the election of Barack Obama on November 4—the events related to the presidential transition—are a uniquely American drama.

The phenomenon of the transition between elected governments—a time where one political leader or party has already been elected but has not yet taken official power—is not unknown to the rest of the world, and seems specifically contemplated by the constitutions of other countries.[2]  What makes the American system unique, then, is not the existence of the transition period, but its significance.  In the major constitutional regimes elsewhere, political parties more clearly identify their policy leaders even when not in power, and thus have a much smaller number of personnel decisions to make when transitioning to power.[3]  By contrast, American political parties do not clearly identify who their policy leaders are when they do not occupy the White House.  Because of that, and because American Presidents have such a large number of political appointments to make, the transition period becomes a crucial moment for the new American President to coronate a select few political figures as the current and future political and policy leaders within his Administration, and therefore within his party.  The contrast leads to a simple, but significant, difference: While political parties in other countries define their policy leaders permanently, American parties define their policy leaders in substantial part through a singular moment of high drama—the presidential transition.

Nina A. Mendelson[*]

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Introduction

The United States's presidential transition period is too long.  Between November 7, 2008, and January 20, 2009, the media quickly identified a "'leadership vacuum.'"[1]  In contrast to those of President-elect Obama, President Bush's approval ratings were at historic lows.[2]  One reporter commented in late November, "The markets, at least, seem to be listening to one [P]resident—and he's not the one in the Oval Office,"[3] and another noted that "everyone . . . ignores the actions of the lame duck."[4] 

Meanwhile, President-elect Obama was faced with numerous calls for immediate action on the nation's pressing economic and national security concerns.  A December cover of Time magazine blared, "Why Obama's Presidency Has Already Begun . . .,"[5] and Congressman Barney Frank commented, "'[Obama] says we only have one president at a time. . . .  I'm afraid that overstates the number of presidents we have.  He's got to remedy that situation.'"[6]

Despite repeatedly stating that America has "'only one [P]resident at a time,'"[7] his care in asserting no formal power, and his avoidance of foreign affairs issues,[8] Obama prior to inauguration acted in many ways as if he were President.  On economic matters, he made announcements regarding his own massive economic stimulus plan,[9] held bipartisan meetings with members of Congress, and called for congressional action on economic stimulus measures.[10]  He described the type of climate change legislation he would endorse upon taking office.[11]  Obama also encouraged President Bush to offer financial assistance to the automobile industry, and it is possible that his statements may have influenced Bush to actually do so[12]—just as with his urgings regarding bailout funds to the financial industry.[13]  In response to questions about his "much higher profile," Obama publicly commented in November on the importance of the American people knowing that "'their new [P]resident has a plan and is going to act swiftly and boldly' . . . ."[14]  In short, Obama's preinaugural statements appear to have influenced both government decisionmakers and the general public.

Bruce Peabody[*]

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Introduction

Presidential inaugurations frequently invite widespread civic celebration, the broad rhetoric of an incoming Chief Executive, and traditions stretching back for decades and even centuries.  The inaugural ceremonies of January 20, 2009 offered all this and something more: a set of important constitutional puzzles radiating from Barack Obama's imperfect recitation of his oath of office.

At 12:04 p.m., Mr. Obama attempted to fulfill the Constitution's requirement that each President take a prescribed thirty-five word oath "[b]efore he enter on the Execution of his Office . . . ."[1]  During the recitation, Chief Justice John Roberts (who was administering the oath) prompted Obama with both an incorrect word and several improper word sequences.  At the end of their verbal exchange, Obama had uttered an inexact version of the presidential oath, including a pledge to execute "the office of President of the United States faithfully" rather than promising to "faithfully execute" that office.[2]

The errors in the oath-taking prompted immediate and widespread speculation and commentary: did problems with the administration and recitation of the presidential oath somehow render it invalid?  If so, had Obama failed to become President, perhaps leaving us with some other Chief Executive, or even no President at all?[3]