Presidential Transitions: Issues Involving Outgoing and Incoming Administrations
Prepared for Members and Committees of Congress
The smooth and orderly transfer of power can be a notable feature of presidential transitions, and
a testament to the legitimacy and durability of the electoral and democratic processes. Yet, at the
same time, a variety of events, decisions, and activities contribute to what some may characterize
as the unfolding drama of a presidential transition. Interparty transitions in particular might be
contentious. Using the various powers available, a sitting President might use the transition
period to attempt to secure his legacy or effect policy changes. Some observers have suggested
that, if the incumbent has lost the election, he might try to enact policies in the waning months of
his presidency that would “tie his successor’s hands.” On the other hand, a President-elect, eager
to establish his policy agenda and populate his Administration with his appointees, will be
involved in a host of decisions and activities, some of which might modify or overturn the
previous Administration’s actions or decisions.
Both the incumbent and the newly elected President can act unilaterally, through executive
orders, recess appointments, and appointments to positions that do not require Senate
confirmation. Additionally, a President can appoint individuals to positions that require Senate
confirmation, and a presidential administration can influence the pace and substance of agency
rulemaking. The disposition of government records (including presidential records and vice
presidential records), the practice of “burrowing in” (which involves the conversion of political
appointees to career status in the civil service), and the granting of pardons are three activities
associated largely with the outgoing President’s Administration. The incumbent President may
also submit a budget to Congress, or he may defer to his successor on this matter.
In light of the terrorist attacks of September 11, 2001, national security is an overarching issue for
presidential transitions, and national security concerns may be heightened during the transfer of
power from the sitting President to his successor.
Depending upon the particular activity or function, the extent and type of Congress’s involvement
in presidential transitions may vary. As an example of direct involvement, the Senate confirms the
President’s appointees to certain positions. On the other hand, Congress is not involved in the
issuance of executive orders, but it may exercise oversight, or take some other action regarding
the Administration’s activities.
This report will be updated as events warrant.
Introduc tion ..................................................................................................................................... 1
Congressional Disapproval of “Midnight Rules”......................................................................5
Backgr ound ............................................................................................................................... 7
Possible Congressional Concerns..............................................................................................8
Acts of Clemency Might Restrict Oversight of the Executive Branch...............................8
Acts of Clemency Might Have Implications for U.S. Foreign Relations...........................8
Timing and Volume of Executive Orders................................................................................10
Content of Executive Orders...................................................................................................12
2008-2009 Presidential Transition: National Security Considerations and Options.....................15
Possible Actions by Entities Wishing to Disrupt the Presidential Transition Period..............15
Considerations and Options Unique to Each Phase of the Presidential Transition
Period ................................................................................................................................... 16
Phases 1 and 2: Campaigning by Presidential Candidates to the Day of Election ...........16
Phase 3: Election Day.......................................................................................................17
Phase 4: Selection of a President-Elect to Inauguration Day............................................17
Phase 5: Presidential Inauguration to the Establishment of a New National
Security Team and Policies............................................................................................17
Personnel—Political to Career Conversions (“Burrowing In”).....................................................19
Political Appointments into the Next Presidency..........................................................................23
Appointment Authority for Officers of the United States.......................................................23
Tenure During a Transition for a Confirmed Appointee.........................................................24
Tenure During a Transition for a Recess Appointee................................................................25
Senate Pro Forma Sessions to Block Recess Appointments...................................................25
Submission of the President’s Budget in Transition Years............................................................27
Is the Outgoing or Incoming President Required to Submit the Budget?...............................27
Transition Budgets in Recent Years: Timing and Form..........................................................28
Table 1. Average Monthly Clemency Petitions Granted, Prior to and During the Final
Four Months of Selected Administrations....................................................................................7
Table 2. Number of Executive Orders Issued During Presidential Transitions, 1977 -
Author Contact Information..........................................................................................................29
Key Policy Staff............................................................................................................................30
As both an administrative and a symbolic event in American politics, presidential transitions can
be notable for the smooth and orderly transfer of power from an incumbent Administration to the
next President and a shift in focus—from campaigning to governing—by the incoming
Administration. Yet, as William Galston and Elaine Kamarck point out, “The peaceful transfer of
power from one President to the next is an enduring and gripping drama of American 1
A variety of events and actions contribute to the unfolding drama of a presidential transition. For
a sitting President who is not re-elected (and barring any electoral disputes), or is serving a
second term, election day marks the beginning of the end of his presidency. While some
commentators would argue that a lame duck President can accomplish little during the 11 weeks
between election day and inauguration day, William G. Howell and Kenneth R. Mayer offer an
Portraits of outgoing presidents going quietly into the night overlook an important feature of
American politics, and of executive power—namely, the president’s ability to unilaterally set
public policy.... Using executive orders, proclamations, executive agreements, national
security directives, memoranda, and other directives, presidents have at their disposal a wide
variety of means to effectuate lasting and substantive policy changes, both foreign and 2
Howell and Mayer also note that an outgoing President’s level of activity during his final months
in office is influenced by the party of his successor. An outgoing President whose successor is 3
from the same political party “has little cause to hurry through a slew of last-minute directives.”
When the opposing party is poised to regain control of the White House, however, the sitting
President might “exercise these powers with exceptional zeal, making final impressions on public 4
policy in the short time” available before inauguration day. Moreover, the incumbent might use
the transition period to enact policies and effect changes that might stymie his successor.
1 William A. Galston and Elaine Ciulla Kamarck, “The Transition: Reasserting Presidential Leadership,” in Mandate
for Change, ed. Will Marshall and Martin Schram (New York: Berkley Books, 1993), p. 336.
2 William G. Howell and Kenneth R. Mayer, “The Last One Hundred Days,” Presidential Studies Quarterly, vol. 35
(2005), p. 537. Notable examples of “last-minute presidential actions” include the following: “It was President John
Adams’s ‘Midnight’ appointments, which [his successor Thomas] 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 lead 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’....
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.... In late December 1992, George Bush pardoned six Reagan
administration officials who were involved in the Iran-Contra scandal, a step that ended Independent Counsel Lawrence
Walsh’s criminal investigation. ‘[In] a single stroke, Mr. Bush swept away one conviction, three guilty pleas, and two
pending cases, virtually decapitating what was left of Mr. Walsh’s effort, which began in 1986’.... [D]uring his final
days in office Clinton ‘issued scads of executive orders’ on issues ranging from protecting the Hawaiian Islands Coral
Reef Ecosystem Reserve to prohibiting the importation of rough cut diamonds from Sierra Leone to curbing tobacco
use both domestically and abroad.” (Ibid., pp. 534-535.)
3 Ibid., p. 538.
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 5
possible to tie his successor’s hands.
During the 20th and 21st centuries, and beginning with Theodore Roosevelt, who took office in
Woodrow Wilson, Warren G. Harding, Franklin D. Roosevelt, Dwight D. Eisenhower, John F.
Kennedy, Richard M. Nixon, Jimmy Carter, Ronald W. Reagan, William J. Clinton, and George
Regardless of an incumbent President’s intentions, however, his decisions and actions in several
areas—as well as the activities of his Administration—could affect his successor, and could be a
cause for congressional concern. Acting unilaterally, a President can issue executive orders,
appoint individuals to positions that do not require Senate confirmation (PA positions), and make
recess appointments. Additionally, the President can appoint individuals to positions which
require Senate approval (PAS positions); the Administration can influence the pace of agency
rulemaking; significant decisions regarding presidential and vice presidential records may be
made; and some political appointees might be converted to civil service positions (in a practice
known as “burrowing in”).
Depending upon the timing, frequency, content (in the case of executive orders and regulations),
and other salient features of certain presidential or Administration actions or decisions, some may
question the propriety of an outgoing Administration’s actions during the presidential transition
period. Certain decisions or actions could affect the incoming President, “forcing [him] to choose
between accepting objectional policies as law or paying a steep political price for trying to change 6
In addition to the possibility of having to address certain actions taken by the outgoing
Administration, a new President, and his staff, have to deal with “the challenges of moving from
a campaign to a governing stance,” which can include handling “the issues of staffing, 7
management, agenda setting, and policy formulation....” Eager to hit the ground running, an
incoming President can use the same tools his predecessor did during the transition period—for
example, executive orders, agency rulemaking, and political appointments—to establish his
policy agenda, populate the executive branch with his appointees, and possibly overturn or
modify some of his predecessor’s policies and actions. If the sitting President defers to his
successor regarding the submission of a budget, this is an additional task for the newly elected
President. Alternatively, if the incumbent submits a budget, his successor may revise it. The
significance of the transition period for the President-elect cannot be overstated: “Since the
5 Ibid., p. 533. On the other hand, the incumbent Administration might be a significant resource for the President-elect
and his team: “One of the most important transition opportunities an incoming President and his team has is the
outgoing administration. They are a source of valuable information on personnel positions and can be used to take
some actions smoothing the path of the incoming administration.” (Martha Joynt Kumar et al., Meeting the Freight
Train Head On: Planning for the Transition to Power, The White House 2001 Project, White House Interview
Program, Report No. 2, Aug. 18, 2000, p. 9.)
6 Howell and Mayer, “The Last One Hundred Days,” p. 535.
advent of the modern presidency under Franklin Delano Roosevelt (FDR), the actions that
presidents-elect undertake before inauguration day have been seen by scholars, journalists, other
observers, and even presidents themselves as critical in determining their successes—and 8
failures—once in office.”
The Congress has a role to play in presidential transitions, though the extent and type of its
involvement varies. It is most directly involved in the confirmation of presidential appointees
(that is, individuals appointed to PAS positions), the budget process, and, under certain
circumstances, agency rulemaking. Other Administration activities, such as the issuance of
executive orders, the disposition of presidential records and vice presidential records, and the
granting of pardons, may be of interest to Congress, and, in some cases, might become the subject
of congressional oversight or other congressional action. Even the practice of “burrowing in,”
some would suggest, might warrant congressional interest.
Finally, an overarching issue for presidential transitions, in light of the terrorist attacks of
September 11, 2001, and continued concerns about terrorism, is national security. While this is an
ongoing issue for the nation, national security concerns might be heightened during presidential
Each of the following sections of this report focuses on a particular aspect of presidential
transitions: agency rulemaking, executive orders, government records, national security
considerations, personnel (political to career conversions), political appointments, and submission
of the President’s budget.
Federal regulation, like taxing and spending, is one of the basic tools of government used to
implement public policy. Regulations generally start with an act of Congress, and are the means
by which statutes are implemented and specific requirements are established. Federal agencies
issue more than 4,000 final rules each year on topics ranging from the timing of bridge openings
to the amount of arsenic and other contaminants that is permitted in drinking water. The (off-
budget) costs and benefits associated with all federal regulations have been a subject of great
controversy. Some have estimated those regulatory costs as more than a trillion dollars—greater
than all federal domestic discretionary spending. Estimates of the benefits of federal regulations 9
are even higher.
At the conclusion of most recent presidential administrations, the number of final rules issued by
federal agencies increases noticeably—a phenomenon that has been characterized as “midnight 10
rulemaking.” As one observer stated, putting rules into effect before the end of a presidency is
8 John P. Burke, Becoming President: The Bush Transition, 2000-2003 (Boulder, CO: Lynne Rienner Publishers,
2004), p. 1.
9 The Office of Management and Budget produces an annual report for Congress on this issue. See
http://www.whitehouse.gov/omb/inforeg/regpol-reports_congress.html to view those reports.
10 See, for example, Jay Cochran, III, “The Cinderella Constraint: Why Regulations Increase Significantly During Post-
Election Quarters,” Mercatus Center, George Mason University, March 8, 2001; and Jason M. Loring and Liam R.
“a way for an administration to have life after death,”11 for the only way that a subsequent
administration can change or eliminate the rule is by going back through the often lengthy
rulemaking processes that are required by the Administrative Procedure Act (5 U.S.C. §551 et 12
seq.) and various other statutes and executive orders.
When there has been a change in party control of the presidency, recent incoming Presidents have
responded to this phenomenon by stopping or delaying new agency rulemaking, and by
attempting to reverse certain rules. For example, a few weeks after he took office, President
Reagan issued Executive Order 12291 which, among other things, generally required covered
agencies to “suspend or postpone the effective dates of all major rules that they have promulgated 13
in final form as of the date of this Order, but that have not yet become effective.” President
Clinton also imposed a moratorium on rules issued at the end of the first Bush Administration. As
discussed below, the current Bush Administration delayed the implementation of many rules
issued in the last months of the Clinton Administration and ultimately reduced the number that
took effect. It has also attempted to protect rules issued in its own last months from the possibility
of similarly being rendered ineffective by establishing an effective date prior to the advent of the
During the final months of the Clinton Administration, federal agencies issued hundreds of final
rules, many of which were expected to have a substantial impact on regulated entities. In response
to this action, on January 20, 2001, the Chief of Staff and Assistant to the new President, Andrew
H. Card, Jr., sent a memorandum to the heads of all executive departments and agencies generally
directing them to (1) not send proposed or final regulations to the Office of the Federal Register
(OFR), (2) withdraw regulations that had been sent to the OFR but not published in the Federal
Register, and (3) postpone for 60 days the effective date of regulations that had been published in 14
the Federal Register but had not yet taken effect. The memorandum cited the desire to “ensure
that the President’s appointees have the opportunity to review any new or pending regulations.”
In 2002, GAO reported that 90 final rules had their effective dates delayed as a result of the Card
memorandum, and 15 rules still had not taken effect one year after the memorandum was 15
Roth, “After Midnight: The Durability of the ‘Midnight’ Regulations Passed by the Two Previous Outgoing
Administrations,” Wake Forest Law Review, vol. 40 (2005), pp. 1441-1465.
11 John M. Broder, “A Legacy Bush Can Control,” New York Times, Sept. 9, 2007, p. WK 3, quoting Phillip Clapp,
president of the National Environmental Trust.
12 For more information on these statutes and executive orders, see CRS Report RL32240, The Federal Rulemaking
Process: An Overview, by Curtis W. Copeland.
13 Executive Order 12291, “Federal Regulation,” 46 Federal Register 13193, Feb. 17, 1981.
14 See http://www.whitehouse.gov/omb/inforeg/regreview_plan.pdf for a copy of this memorandum. Federal courts
have generally considered any delay in a rule’s effective date to require notice and comment rulemaking. See Natural
Resources Defense Council, Inc. v. EPA, 683 F.2d 752, 761 (3d Cir. 1982); and Council of the Southern Mountains v.
Donovan, 653 F.2d 573 (D.C. Cir. 1981). Although some agencies used notice and comment rulemaking to delay
effective dates pursuant to the Card memorandum, most agencies simply published the changes and invoked the
Administrative Procedure Act’s “good cause” exception. One such action was rejected by the court. See Natural
Resources Defense Council v. Abraham, 355 F.3d 179, 204-05 (2d Cir 2004).
15 U.S. General Accounting Office, Regulatory Review: Delay of Effective Dates of Final Rules Subject to the
Administration’s January 20, 2001, Memorandum, GAO-02-370R, Feb. 15, 2002.
The Bush Administration has also taken action in anticipation of possible “midnight rules” at the
end of the current President’s term. On May 9, 2008, White House Chief of Staff Joshua B.
Bolten issued a memorandum to the heads of executive departments and agencies stating that the
Administration needed to “resist the historical tendency of administrations to increase regulatory
activity in their final months.” Therefore, Bolten said that, except in “extraordinary
circumstances, regulations to be finalized in this Administration should be proposed no later than 16
June 1, 2008, and final regulations should be issued no later than November 1, 2008.” He also
said that the Administrator of the Office of Information and Regulatory Affairs (OIRA) within the
Office of Management and Budget would “coordinate an effort to complete Administration
priorities in this final year,” and the OIRA Administrator would “report on a regular basis 17
regarding agency compliance with this memorandum.”
The Congressional Review Act (CRA, 5 U.S.C. §§801-808) requires federal agencies to submit
all of their final rules to both houses of Congress and the Government Accountability Office
(GAO) before they can take effect, and also delays the effective date of “major” rules (e.g., those
with a $100 million impact on the economy) until 60 calendar days after submission and 18
publication. Under this requirement, any regulation published in the Federal Register, in
accordance with the Bolten memorandum, by November 1, 2008, will have taken effect before th
the 111 Congress begins and the next President takes office in January 2009. As a result, the
Bolten memorandum may also have the effect of preventing the next presidential administration
from doing what was done via the Card memorandum—forestalling the implementation of rules
published during the previous administration by delaying their effective dates or withdrawing
them before they can take effect.
However, even if they have taken effect, many rules submitted before the Bolten memorandum th19
deadline will be subject to congressional disapproval in the 111 Congress. The CRA
established a special set of expedited or “fast track” legislative procedures, primarily in the
Senate, through which Congress may enact joint resolutions disapproving agencies’ final rules.
Although the general powers of Congress permit it to overturn agency rules by legislation, the
CRA is unique in permitting the use of expedited procedures for this purpose. If a rule is
disapproved through the CRA procedures, the act specifies not only that the rule “shall not take
16 Between June 1 and August 8, 2008, however, federal agencies sent more than 40 proposed rules to the Office of
Management and Budget for review prior to publication in the Federal Register. (Ralph Lindeman, “Agencies
Continue to Proposed New Rules After White House-Imposed June Deadline,” BNA Daily Report for Executives, Aug.
11, 2008, p. A-9.)
17 OIRA reviews all significant rules before they are published in the Federal Register, and is the President’s chief
representative in the rulemaking process. See CRS Report RL32397, Federal Rulemaking: The Role of the Office of
Information and Regulatory Affairs, by Curtis W. Copeland.
18 For an in-depth discussion of the CRA disapproval process, see CRS Report RL31160, Disapproval of Regulations
by Congress: Procedure Under the Congressional Review Act, by Richard S. Beth. For a discussion of how the CRA
has been implemented, see CRS Report RL30116, Congressional Review of Agency Rulemaking: An Update and
Assessment of The Congressional Review Act after a Decade, by Morton Rosenberg.
19 For a more complete discussion of the CRA’s carryover provisions and how they may apply to rules issued at the end
of the 110th Congress, see CRS Report RL34633, Congressional Review Act: Disapproval of Rules in a Subsequent
Session of Congress, by Curtis W. Copeland and Richard S. Beth.
effect” (or shall not continue, if it has already taken effect), but also that the rule may not be
reissued in a “substantially” similar form without subsequent statutory authorization.
Once a rule has been submitted to Congress, Members have 60 “days of continuous session” to 20
introduce a resolution of disapproval. The CRA also provides that, if Congress adjourns its
annual session sine die less than 60 “legislative days” (House of Representatives) or “session
days” (Senate) after a rule is submitted to it, then the rule is carried over to the next session of th
Congress and treated as if it had been published in the Federal Register on the 15 legislative or 21
session day after Congress reconvenes. The purpose of this provision is to ensure that both
houses of Congress have sufficient time to consider disapproving rules submitted during this end-th
of-session “carryover period.” In any given year, the carryover period begins after the 60
legislative day in the House or session day in the Senate before the sine die adjournment,
whichever date is earlier. The renewal of the CRA process in the following session occurs even if
no resolution to disapprove the rule had been introduced during the session when the rule was
Although the exact starting point for the CRA carryover period in the second session of the 110th
Congress can be determined only after sine die adjournment has taken place, the likely date or
range of dates may be illuminated by examining congressional activity in prior years. Across all th
sessions of Congress since the CRA was enacted in 1996 (the second session of the 104
Congress), the starting point for the carryover period was always determined by the schedule of
the House of Representatives, and was always earlier in the second session of Congress (i.e.,
during election years) than in the first session. In those second sessions of Congress, the starting
points ranged from May 12 to June 23, with the median starting point being June 7 (i.e., half
occurring before, half after).
If Congress follows this general pattern in the second session of the 110th Congress, the data
suggest that any final rule submitted to Congress after June 2008 may be carried over to the first th
session of the 111 Congress, and may be subject to a resolution of disapproval during that
session. However, the starting point for the carryover period could slip to late September or early
October if an unprecedented level of congressional activity occurs late in the session.
Even without the CRA, though, Congress can stop agency rulemaking in other ways. For
example, each year, Congress includes provisions in appropriations legislation prohibiting
rulemaking within particular policy areas, preventing particular proposed rules from becoming 22
final, and prohibiting or affecting the implementation or enforcement of rules. However, unlike
disapprovals under the CRA, the regulatory requirements that have been put into effect are not
rescinded, and the agency is not prohibited from issuing a substantially similar regulation in the
20 “Days of continuous session” includes all calendar days except those in which either house of Congress is adjourned
for more than three days during a session.
21 “Legislative days” end each time a chamber adjourns and begin each time it convenes after an adjournment. “Session
days” include only calendar days on which a chamber is in session.
22 CRS Report RL34354, Congressional Influence on Rulemaking and Regulation Through Appropriations
Restrictions, by Curtis W. Copeland.
Article II of the Constitution provides the President with the explicit authority to “grant Reprieves
and Pardons for Offences against the United States.” The general term for this authority is
executive clemency, of which the more commonly used term, presidential pardon, is but one
form. Executive clemency may also take the form of commutation, which is the reduction of a
prison sentence, remission, which is the reduction of a fine or mandated restitution, or reprieve, 23
which delays the imposition of punishment.
The President has few restrictions on how and when executive clemency may be exercised, other
than it may only apply to violations of federal laws—thereby precluding state criminal or civil
proceedings from its scope—and it may not be used to interfere with the Congress’s power to 24
impeach. Clemency in the form of a pardon, for example, may be granted at any time, even 25
before charges have been filed. In addition, while not frequently done, a President may bestow
clemency on groups, as President Lincoln did when he issued a pardon to all persons who
participated in the “rebellion” against the United States (with a number of conditions and 26
The President’s use of this broad authority may come under increased scrutiny during a period of
transition, in part because Presidents have historically granted petitions for clemency at a higher
rate in the closing months of their administrations. Table 1 shows that since 1945, every president
that completed his term of office, except President Johnson, increased the rate at which he
granted clemency in the final four months of his administration, when compared to his previous
months in office.
Table 1. Average Monthly Clemency Petitions Granted, Prior to and During the Final
Four Months of Selected Administrations
Prior to Final Four Months of Final Four Months of
President Administration Administration
Harry S. Truman 22 per month 25 per month
Dwight D. 10 per month 53 per month
Lyndon B. Johnson 21 per month 0 per month
Gerald R. Ford 11 per month 34 per month
James E. Carter 11 per month 20 per month
Ronald W. Reagan 4 per month 8 per month
23 U. S. Department of Justice, Office of the Pardon Attorney, available at http://www.usdoj.gov/pardon/.
24 CRS Report RS20829, An Overview of the Presidential Pardoning Power, by T. J. Halstead.
26 United States President (Lincoln), “The Proclamation of Amnesty and Reconstruction,” Dec. 8, 1863, available at
Prior to Final Four Months of Final Four Months of
President Administration Administration
George H.W. Bush 1 per month 10 per month
William J. Clinton 2 per month 65 per month
Source: United States Department of Justice, Office of the Pardon Attorney, available at http://www.usdoj.gov/
Notes: Clemency statistics include pardons, commutations, and remissions of fines. Figures have been rounded
to the nearest whole number.
Controversial acts of clemency may be among those granted in the final months of an
administration, such as President George H.W. Bush’s pardon of key figures in the Iran-Contra
affair on Christmas Eve, 1992—less than four weeks before the end of his term—and President
Bill Clinton’s pardon of commodities trader Mark Rich, which was issued on President Clinton’s
last day in office.
Ongoing investigations into the conduct of executive branch officials may be impeded or
effectively ended by acts of clemency. As previously noted, President George H. W. Bush
pardoned six former officials from President Ronald Reagan’s Administration for their roles in
the Iran-Contra affair, including two officials who had been indicted but had not yet been to trial.
These pardons essentially ended the Independent Counsel’s criminal investigation, which had
begun six years earlier. The ongoing criminal investigation into the firing of nine United States th
attorneys in 2006—which has attracted considerable interest among Members of the 110
Congress—might be affected if President George W. Bush issues pardons to members of his
administration for any role they may have played in the matter.
President George W. Bush has received many requests from the public and elected officials to
provide clemency to two United States Border Patrol agents who are serving sentences in federal 27
prisons for shooting a Mexican citizen who had crossed illegally into Texas. The Mexican
government, however, has been highly critical of what it deems “the excessive use of force” by
American border authorities, and may protest strongly should the border patrol agents be issued 28
pardons or commutations. Similarly, it has been suggested President Bush may consider
clemency for soldiers convicted of crimes committed while serving at Abu Ghraib prison in
27 To cite just two examples, H.Con.Res. 267 (110th Cong.), which had 81 cosponsors and bipartisan support, called on
the President to commute the sentences of the two border patrol agents. H.Con.Res. 267 is at
http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=110_cong_bills&docid=f:hc267ih.txt.pdf; and the
American Federation of Government Employees (AFGE), which has a membership of over 600,000, sent President
Bush a letter in 2007 also asking him to pardon the border patrol agents. The AFGE letter is at http://www.afge.org/
28 “Mexico slams border shooting, US Congress for failing to pass immigration bill,” New York Times Global Edition,
Aug. 9, 2008, available at http://www.iht.com/articles/ap/2007/08/10/america/LA-GEN-Mexico-Immigration.php.
Iraq.29 Acts of clemency related to Abu Ghraib would likely be poorly received by Muslim
populations and governments around the world, and possibly nations that have expressed
opposition to the War in Iraq.
Concerns about the volume, timing, and content of executive orders may be heightened during
presidential transitions, particularly during the months leading up to the inauguration. The
perception, if not necessarily the reality, exists that an outgoing President’s inclination to act
unilaterally increases during the transition period.
A President’s decision to use executive orders may be based on practical, political, or personal
reasons, or any combination thereof. Executive orders are a significant vehicle for unilateral
action by the President: they have the force and effect of law—unless voided or revoked by
congressional, presidential, or judicial action—and they combine “the highest levels of substance, 30
discretion, and direct presidential involvement.” Being able to act unilaterally enables a
President to establish control over policymaking. Presidents are sometimes aided in this endeavor
by the proliferation and ambiguity of statutes, which increase their opportunities for justifying 31
presidential action. Another appealing feature of executive orders is that they allow Presidents 32
to act “quickly, forcefully, and (if they like) with no advance notice.” Capitalizing on these
features enables Presidents to seize the initiative on an issue, shape the national agenda, and force
others to respond. For practical or political reasons, Presidents may choose to use executive
orders to circumvent a Congress that they perceive as hostile to their policies, after considering 33
whether the Congress is likely to overturn a particular executive order, or as moving too 34
Executive orders suit the needs of an outgoing President who wants to establish or change policy,
or is striving to secure his legacy. Howell and Mayer have noted that when a President’s
successor belongs to the opposition political party, “he has every reason to hurry through last-35
minute public policies, doing whatever possible to tie his successor’s hands.” An outgoing
President’s use of unilateral directives, such as executive orders, might be greeted with criticism
from some quarters. Some scholars note that the “directives lack the sort of legitimacy that pre-
election activity has, because by definition they are issued after a president (and, in many cases,
his party) has been repudiated at the polls. Moreover, there are no opportunities for democratic
29 Keith Koffler, “Stevens Case Puts Spotlight on Pardons,” Roll Call Newspaper Online, Oct. 28, 2008, available at
30 Joel L. Fleishman and Arthur H. Aufses, “Law and Orders: The Problem of Presidential Legislation,” Law and
Contemporary Problems, vol. 40 (1976), p. 5. Executive orders disposition tables, which list each President’s executive
orders from Franklin D. Roosevelt through the current President, are available at http://www.archives.gov/federal-
31 Terry M. Moe and William J. Howell, “The Presidential Power of Unilateral Action,” Journal of Law, Economics,
and Organization, vol. 15 (1999), pp. 141and 143.
32 Ibid., p. 138.
33 Christopher J. Deering and Forrest Maltzman, “The Politics of Executive Orders: Legislative Constraints on
Presidential Power,” Political Research Quarterly, vol. 52 (1999), pp. 2 and 6.
34 Paul C. Light, The President’s Agenda: Domestic Policy Choice from Kennedy to Reagan (Baltimore: Johns Hopkins
University Press, 1991), p. 118.
35 Howell and Mayer, “The Last One Hundred Days,” p. 533.
accountability, because, again, voters do not have a subsequent chance to express their approval 36
An incoming President, who is eager to act quickly on his policy agenda, seeking to modify or
overturn certain of his predecessor’s actions, or distinguish himself from his predecessor,
particularly when they are from different parties, would find executive orders an effective way to 37
accomplish these objectives. He might be stymied, though, in his efforts to amend his
predecessor’s actions: “Occasionally, presidents cannot alter orders set by their predecessors
without paying a considerable political price, undermining the nation’s credibility, or confronting 38
serious legal obstacles.”
Table 2 presents the number of executive orders issued by Presidents George W. Bush, William J. 39
Clinton, George Bush, Ronald Reagan, and Jimmy Carter in each of three transition periods.
These three periods are comparable, but not equal, in duration, which means it is more
meaningful to compare data within each column rather than across columns.
Table 2. Number of Executive Orders Issued During Presidential Transitions, 1977 -
(First term) Pre-election Lame Duck
President Jan. 20-Apr. 30 Aug. 1-Election Election-Jan. 20
George W. Bush 10
12 (2004) To be determined
William J. Clinton 10
13 (1996) 22
(1993) 11 (2000-2001)
36 Ibid., p. 551.
37 Kenneth R. Mayer, “Executive Orders and Presidential Power,” Journal of Politics, vol. 61 (1999), p. 451. For
example, President Clinton signed E.O. 12834 on Jan. 20, 1993, which required his senior political appointees to take
an ethics pledge that would prohibit them from lobbying federal government officials for five years. President George
W. Bush launched a major initiative early in his term with the signing of E.O. 13198 and E.O. 13199 on Jan. 29, 2001,
which directed the Attorney General and four cabinets secretaries to establish offices of faith-based and community
initiatives, and which established a White House Office of Faith-Based and Community Initiatives, respectively.
38 Howell and Mayer, “The Last One Hundred Days,” p. 543. On the other hand, as the following examples show,
several recent Presidents revoked, partly or completely, one or more executive orders issued by their immediate
predecessor. President Reagan revoked two executive orders signed by President Carter, thus terminating certain
aspects of the government’s wage and price program (E.O. 12288, Jan. 29, 1981) and disbanding the Tahoe Federal
Coordinating Council (E.O. 12298, Mar. 12, 1981). President Clinton revoked (E.O. 12836, Feb. 1, 1993) two of
President Bush’s executive orders having to do with labor unions. President G.W. Bush signed four executive orders
(Executive Orders 13201, 13202, 13203, and 13204), on Feb. 17, 2001, that dealt with labor issues and that partially or
completely revoked executive orders that had been signed by his predecessor.
39 Consistent with how he signed executive orders, the 41st President is identified in this report as President George
Bush or President Bush. His son, the 43rd President, is identified as President George W. Bush, his signature on
executive orders, or President G.W. Bush.
(First term) Pre-election Lame Duck
President Jan. 20-Apr. 30 Aug. 1-Election Election-Jan. 20
George Bush 11 7 14
(1989) (1992) (1992-1993)
Ronald Reagan 7
18 (1984) 12
(1981) 9 (1988-1989)
Jimmy Carter 16 20 36
(1977) (1980) (1980-1981)
Sources: U.S. National Archives and Records Administration, “Executive Orders Disposition Tables,” available
Notes: Executive orders are categorized according to signing date.
As incoming Presidents, G.W. Bush, Clinton, Bush, Reagan, and Carter issued comparable
numbers of executive orders. The range of executive orders issued was 11 (Bush) to 18 (Reagan).
During the pre-election period, four of the Presidents also issued comparable numbers of
executive orders, ranging from 7 (Reagan and Bush) to 11 (Clinton). President Carter issued 20
executive orders during the pre-election period. The lame duck period shows the greatest
variation. Reagan and Bush issued comparable numbers of executive orders, 12 and 14, 40
respectively. Clinton issued 22, and Carter issued 36. However, nearly one-third of the executive
orders President Carter signed at the end of his term had to do with the hostage crisis in Iran.
A study that examined executive orders issued between April 1936 and December 1995 found
that, while the start of a new President’s term does not result in a higher number of executive
orders, the end of a President’s term is notable for an increase in the quantity of executive orders 41
issued. Presidents who were succeeded by a member of the other party signed “nearly six 42
additional orders ... in the last month of their term, nearly double the average level.” When party
control of the White House did not change following a presidential election, there was “no 43
corresponding increase in order frequency....” The author of this study asserts that these data are
evidence that “executive orders have a strong policy component, as otherwise presidents would
have little reason to issue such last-minute orders.” Mayer also found that reelection plays a role
in the number of executive orders signed and issued. Presidents who are running for reelection
issue approximately 1.4 more executive orders per month—14 during campaign season from 44
January 1 through the end of October—than when they are not running for reelection.
40 The quantity of orders President Carter signed during the pre-election and lame duck periods is consistent with the
pace he maintained throughout his four-year term. President G.W. Bush issued an average of 36 executive orders per
year; President Clinton 46; President Bush 42; President Reagan 48; and President Carter 80. The figure for President
G.W. Bush is an average for the years 2001-2007.
41 Mayer, “Executive Orders and Presidential Power,” p. 457.
44 Ibid., p. 459.
Executive orders range, in terms of their import for government management and operations and
the principle of shared powers, and the scope of their impact, from the somewhat innocuous to the
highly significant. Presidents use executive orders to recognize groups and organizations;
establish commissions, task forces, and committees; and make symbolic statements. Presidents
also use executive orders “to establish policy, reorganize executive branch agencies, alter
administrative and regulatory processes, [and] affect how legislation is interpreted and 45
Unilateral action by Presidents during transition periods can, and does, result in a mixture of
executive orders in terms of their significance and scope. President Carter established a
committee charged with selecting a director for the Federal Bureau of Investigation and closed 46
the federal government on Friday, December 26, 1980. President Bush designated the
Organization of Eastern Caribbean States as a public international organization and delegated
some disaster relief and emergency assistance functions from the President to the director of the 47
Federal Emergency Management Agency. Turning to executive orders with policy implications,
President Ronald Reagan brought agency rulemaking under the control of the Office of 48
Management and Budget and required cost-benefit analyses be conducted for proposed rules.
Most notable among the executive orders signed by President Carter during a transition period
was a package of executive orders relating to the negotiated release of American hostages being 49
held in Iran.
Changes of presidential administrations prompt concerns that some government records might be
destroyed or removed during the transition. Responsibility for the life cycle management of
government records rests with the Archivist of the United States, who is the head of the National
Archives and Records Administration (NARA). To address concerns about, and prevent the
possible loss of, records, NARA issued a bulletin in each of the past five presidential election
years, as well as in 2008, reminding agency heads of the regulations regarding proper records
management. As stated in the first line of the 2008 bulletin, NARA Bulletin 2008-02, which was
issued on February 4, its purpose “is to remind heads of Federal agencies that official records 50
must remain in the custody of the agency.” While departing officials and employees may
remove extra copies or photocopies of records when they leave their agency “with the approval of
a designated official of the agency, such as the agency’s records officer or legal counsel,” the
45 Ibid., p. 445.
46 E.O. 11971, Feb. 11, 1977, and E.O. 12255, Dec. 5, 1980, respectively.
47 E.O. 12669, Feb. 20, 1989, and E.O. 12673, Mar. 23, 1989, respectively.
48 E.O. 12291, Feb.17, 1981.
49 Executive Orders 12276 through 12285, Jan. 19, 1981.
50U.S. National Archives and Records Administration, Protecting Federal Records and Other Documentary Materials
from Unauthorized Removal, NARA Bulletin 2008-02 (Washington: Feb. 4, 2008), available at
bulletin reminds readers that, if such materials are otherwise restricted—for example, for reasons
of personal privacy or security classification—they “must be maintained in accordance with the
appropriate agency requirements.” The bulletin provides additional guidance regarding the
identification of federal records, the proper storage and disposal of documentary materials, and
responding to an unauthorized removal of records. There are criminal penalties for the 51
unauthorized removal or destruction of federal records, their concealment, and for the
unauthorized disclosure of protected records, such as those containing personally identifiable or 52
security classified information.
The NARA bulletin also reminds readers that “[r]ecords may be in paper, film, tape, disk, or other
physical form ... [and] may be generated manually, electronically, or by other means.” Of
particular concern for the 2008 transition are electronic records. “Countless federal records are
being lost to posterity,” by one recent account, “because federal employees, grappling with a
staggering growth in electronic records, do not regularly preserve the documents they create on 53
government computers, send by e-mail and post on the Web.” While the transition does not
contribute to this development, it has increased awareness of the situation. Many federal officials
are reportedly saying they are unsure what electronic materials they are supposed to preserve.
This confusion is causing alarm among historians, archivists, librarians, Congressional
investigators and watchdog groups that want to trace the decision-making process and hold
federal officials accountable. With the imminent change in administrations, the concern 54
about lost records has become more acute.
The Washington representative of the American Association of Law Librarians, whose members
are major users of government records, has stated, “We expect to see the wholesale disappearance 55
of materials on federal agency Web sites.” At the end of the Clinton Administration, NARA
made an effort to preserve a snapshot of each agency’s primary website. A NARA memorandum
of January 12, 2001, directed the departments and agencies to take a snapshot of their websites 56
and forward it, along with supporting documentation, to NARA. However, NARA decided
recently that it would not take such snapshots at the end of the Bush Administration, saying
“Most Web records do not warrant permanent retention because they do not have ‘long-term 57
For almost two centuries, Presidents took their official papers with them when they departed from
office. That practice changed with the Presidential Records Act of 1978, which, for all
presidential records created on or after January 20, 1981, states that such materials shall remain in
51 18 U.S.C. §2071.
52 5 U.S.C. §552a(i); 18 U.S.C. §793-794, 798.
53 Robert Pear, “In Digital Age, Federal Files Blip into Oblivion,” New York Times, Sept. 13, 2008, p. A1.
56 U.S. National Archives and Records Administration, Memorandum to Chief Information Officers: Snapshot of
Agency Public Web Sites, Memorandum NWM 05.2001 (Washington: Jan. 12, 2001), available at
57 Pear, “In Digital Age, Federal Files Blip into Oblivion,” p. A16.
federal custody and under the control of the Archivist when a President departs.58 The statute also
covers the official records of the Vice President pertaining to the performance of executive 59
duties. Presidential records are defined as “documentary materials, or any reasonably segregable
portion thereof, created or received by the President, his immediate staff, or a unit or individual of
the Executive Office of the President whose function is to advise and assist the President, in the
course of conducting activities which relate to or have an effect upon the carrying out of the 60
constitutional, statutory, or other official or ceremonial duties of the President.”
The statute states, “Nothing in this Act shall be construed to confirm, limit, or expand any 61
constitutionally-based privilege which may be available to an incumbent or former President.”
This provision constituted a recognition of the President’s historical, constitutionally based
privilege to exercise a discretion regarding the provision of information sought by another 62
coequal branch of the federal government—the so-called executive privilege. On November 1,
2001, President George W. Bush issued E.O. 13233, which, among other interpretations, offered
an expansive basis for the invoking of executive privilege by the incumbent President or a former
President, the Vice President or a former Vice President, or a representative or group of 63
representatives acting on behalf of a former President. The order also reversed the challenge
procedure set out in the statute by forcing persons seeking access to the records of a former
President to bring a lawsuit to overcome a claim of executive privilege instead of requiring the
former President who is claiming the privilege to obtain judicial concurrence. Attempts in the thth
107 and 110 Congresses to overturn the controversial order through remedial legislation were
not successful. The order’s application of the Presidential Records Act to the “executive records”
of the Vice President, among other concerns, prompted a group of historians and open
government advocates to file a lawsuit in early September 2008 asking a federal court to declare
the records of Vice President Richard Cheney to be subject to the requirements of the act and
preventing their destruction, removal, or withholding without proper review. In response, a
spokesman for the Vice President said, “The Office of the Vice President currently follows the
Presidential Records Act and will continue to follow the requirements of the law, which includes 64
turning over vice presidential records to the National Archives at the end of the term.” On
September 20, a federal judge, in response to the lawsuit by historians and open government
advocates, issued a preliminary injunction ordering Vice President Cheney and NARA to preserve 65
all of his official records.
58 44 U.S.C. §§2201-2207.
59 44 U.S.C. §2207.
60 44 U.S.C. §2201(2).
61 44 U.S.C. §2204(c)(2).
62 See Louis Fisher, The Politics of Executive Privilege (Durham, NC: Carolina Academic Press, 2004); Mark J. Rozell,
Executive Privilege: Presidential Power, Secrecy, and Accountability, 2nd ed., rev. (Lawrence, KS: University Press of
63 3 C.F.R. 2001 Comp., pp. 815-819.
64 Christopher Lee, “Lawsuit to Ask That Cheney’s Papers Be Made Public,” Washington Post, Sept. 8, 2008, p. A4.
65 Associated Press, “Cheney Is Ordered to Preserve Records,” New York Times, Sept. 21, 2008, p. 30; Christopher Lee,
“Cheney Is Told to Keep Official Records,” Washington Post, Sept. 21, 2008, p. A5.
While changes in administration during U.S. involvement in national security related activities
are not unique to the 2008-2009 election cycle, many observers suggest that the current security
climate and recent acts of terrorism by individuals wishing to influence national elections and
change foreign policies portend a time of increased risk during the current presidential transition
period. How the new President recognizes and responds to these challenges will depend heavily
on the planning and learning that occurs prior to the inauguration. Actions can be taken by the
outgoing President and President-elect that may facilitate better decision-making in the new 67
administration. If an incident of national security significance occurs during the presidential
transition period, the actions or inactions of the Congress and the outgoing administration may 68
have a long-lasting effect on the new President’s ability to effectively safeguard U.S. interests.
It is argued that enemies of the U.S. may see the nation as politically vulnerable during the
transition. Threats during the 2008-2009 presidential transition can “emanate both from within 69
the homeland and internationally.” An incident of national security significance occurring
anytime during the presidential transition period could have both intended and unintended effects 70
on the incoming Administration’s national priorities and resulting policies. Conversely, while
some national security experts speculate that Al Qaeda, other extremist groups, and some foreign
powers may see the presidential transition period as a desirable time to undertake action against
U.S. interests, the mere fact that such activity occurs may not necessarily indicate that the act was
committed to test the newly elected President’s decision-making ability. The timing of such acts
may be solely based on the convergence of an entity attaining a desired capability with a
perceived best opportunity to successfully complete its objective.
66 Prepared by John Rollins, Specialist in Terrorism and National Security, Foreign Affairs, Defense and Trade
Division. For the purpose of discussing national security considerations and issues, the presidential transition period is
broken down into five phases.
67 While an incident of national security significance could entail a catastrophic natural disaster, this term, for purposes
of this section of the paper, is used to describe any man-made foreign or domestic security-related incident undertaken
with the intent to influence the procedural aspects or outcome of the Presidential election.
68 For a fuller explanation of national security considerations and options, see CRS Report RL34456, 2008-2009
Presidential Transition: National Security Considerations and Options, by John Rollins.
69 Robert Landers, “Dangers in Presidential Transitions,” Washington: Editorial Research Reports, Oct. 21, 1988, pp.
70 For example, while the terrorist attacks of March 2004 did appear to have an effect on the election outcome and the
Spanish government’s support of military actions in Iraq, the new Prime Minister actually increased Spain’s
commitment to counterterrorism military efforts in Afghanistan. (Helene Zuber, “Spain and NATO: More Troops for
Afghanistan,” Spiegel Online International, Mar. 29, 2008, at http://www.spiegel.de/international/world/
0,1518,544189,00.html, visited Nov. 19, 2008.)
While the time period and phases of a presidential transition are not statutorily derived, for
purposes of this discussion, the presidential transition period is comprised of five phases
extending from presidential campaigning activities to the new President’s establishment of a
national security team and accompanying strategies and policies. Each phase identifies issues and
options of possible interest to Congress during the presidential transition process.
Some national security observers view congressional interest in and support of presidential
transitions as a crucial aspect of orderly transfers of power in the executive branch. Others argue
that Congress should confine its activities to simply providing the funds necessary to support the
transfer of presidential authority and act quickly to confirm the President-elect’s nominated senior
leadership team. Regardless of the level of involvement in the presidential transition desired by
the incoming and outgoing administrations, congressional leaders voiced concern about the
upcoming election period, and noted a desire to provide continued oversight and resources to 72
support the change of administrations. Some suggest that, without substantive and continuing
congressional involvement in presidential transition activities, foreign and domestic security risks
may not be addressed in as full a manner as possible.
Prior to the presidential election the 110th Congress requested and may consider continuing to ask
the Administration to provide
• the names of agency leaders responsible for making national security related
decisions during the presidential transition period,
• briefings on the possible risks to the presidential transition process,
• information about the significant national security operations that will be ongoing
during the transfer of power, and
• briefings about the Administration’s efforts to engage and collaborate with 73
prospective new Administration senior security officials.
71 For purposes of this section of the paper, Phase 1 of the Presidential transition time period spans from
announcements by individuals vying for the Presidency to Phase 2, selection of nominees by the representative political
72 Senate Committee on Homeland Security and Governmental Affairs, “Lieberman Calls on Senate Budget Committee
to Adequately Fund FY2009 Homeland Security Needs,” press release, Feb. 22, 2008, available at
index.cfm?Fuse Action=P ressReleases.Detail&Affiliation=C&P ressRelease_ id=b a22da11-04b8-43c0-9158-
f2f8744b717e&Month=2&Year=2008, visited Oct. 10, 2008.
73 In September, 2008 the Senate Homeland Security and Governmental Affairs Committee held a series of hearings
devoted to ascertaining the Executive Branch’s progress and challenges regarding presidential transition related issues;
some of the issues in this list were addressed. (Senate Committee on Homeland Security and Governmental Affairs,
Subcommittee on Oversight of Government Management, the Federal Workforce, and the District of Columbia,
“Keeping the Nation Safe Through the Presidential Transition,” hearing announcement, Sept. 18, 2008, available at
http://hsgac.senate.gov/public/index.cfm?Fuseaction=Hearings.Det ail&HearingID=00174c24 -3 eef-47d1-bb2c-
An area of apparent ongoing congressional interest is the near-term departure of knowledgeable
political appointees and career managers during a presidential transition that may significantly
hamper the federal government’s ability to prevent and respond to issues of national security
importance. In the months leading up to the 2008 presidential election, Congress asked a number
of questions posed to current national security leaders about plans to support the presidential 74
transition period and require more specificity with respect to current and future planning efforts.
From a national security standpoint, election day was uneventful with no voting disruptions
attributed to man-made or natural disaster related incidences.
Traditionally, Congress is out of session during much of the eleven weeks that comprise phase 4 th
of the transition period. However, the 110 Congress has scheduled a session after the election to
address the nation’s ongoing financial concerns. Some security experts contend that during this
special session Congress may also wish to hold hearings and conduct other legislative inquiry
activities to ensure the two Administrations are properly coordinating on national security-related
Once the 111th Congress convenes and the new members are sworn in, little time is available prior 75
to the presidential inauguration to inquire about past transition-related actions. Prior to the
Presidential inauguration the new Congress may choose to hold hearings to assess the
Administration’s progress on stated national security transition-related activities. Congressional
concerns during this phase might include the status of incoming and outgoing Administrations’
collaboration efforts, how resources are being expended and toward what purpose, and to
ascertain the incoming Administration’s national security foreign and domestic policy goals.
Some presidential historians suggest that legislative inquiry and support during the incoming
Administration’s transition efforts is crucial if Congress is to provide effective oversight during
the new presidency. Professor Cindy Williams of the Massachusetts Institute of Technology
argues that, “the coming transition to a new Administration and Congress opens a window for
74 “I am interested to know if you are beginning to make plans as to how you convey a year hence this department to a
new Administration. What steps you might take to lay the foundation to have, hopefully, a seamless transition.”
(“Senate Armed Services Committee Holds Hearing on the Defense Authorization Request for Fiscal Year 2009,”
CQ.com, Feb. 6, 2008, available at http://www.cq.com/display.do?dockey=/cqonline/prod/data/docs/html/transcripts/
congressional/110/congressionaltranscripts110-00 00 02 66 64 99 .h tml@co mmittees&metapub=CQ-
CONGTRANSCRIPTS&searchIndex=0&seqNum=44.) Question by Senator John Warner to Secretary of Defense
Robert Gates. CRS note: the issue of transition-related activities during the upcoming election was not further
addressed during this hearing.
75The Presidential inauguration occurs approximately two weeks after the Congressional swearing-in ceremony.
reform of the organizational structures and processes that surround planning and resource 76
allocation for homeland (and national) security in the executive branch and Congress.” While
the transition is an opportunity for Members and staff to interact and have substantive discussions
regarding the national security policies and goals of the new Administration, some presidential
historians note that “transitions are hit-and-miss affairs that handicap the new President in 77
shifting from campaigning to governing and create problems for the Congress.” As noted by
Dwight Ink, President Emeritus of the Institute of Public Administration, “new appointees are in
danger of stumbling during the first crucial weeks and months of an Administration, not so much
from what they are striving to do, but from how they are functioning and a lack of familiarity
with the techniques that are most likely to get things done in a complex Washington 78
environment.” In overseeing and supporting the new Administration’s national security
objectives, Congress has a number of activities it might undertake.
Congress might assist the incoming Administration’s national security efforts by quickly 79
considering qualified key political appointees for confirmation. While Congress will also be
undergoing a transition having just been sworn in two weeks prior to the presidential
inauguration, some analysts see this as the ideal time for the new Congress to meet with the
incoming President’s national security leadership team and establish a foundation to allow for
expedited confirmation hearings soon after the President takes the oath of office. As noted by a 80
recommendation of the 9/11 Commission Report of 2004,
Since a catastrophic attack could occur with little or no notice, the federal government should
minimize as much as possible the disruption of national security policymaking during the
change of Administrations by accelerating the process for national security appointments.
We (9/11 Commission) think the process could be improved significantly so transitions can
work more effectively and allow new officials to assume their new responsibilities as quicky
Consistent with recommendations contained in the 9/11 Commission report, the Intelligence 81
Reform and Terrorism Prevention Act of 2004 provides a sense of the Congress regarding an
expedited consideration of individuals nominated by the President-elect to be confirmed by the
Senate. The act further holds that the Senate committees to which these nominations are referred
76 Cindy Williams, “Strengthening Homeland Security: Reforming Planning and Resource Allocation,” 2008
Presidential Transition Series, (Washington: IBM Center for the Business of Government, 2008), available at
http://www.businessofgovernment.org/pdfs/CindyWilliamsReport.pdf, p. 6.
77 U.S. Congress, Senate Committee on Governmental Affairs, Presidential Transition Act of 2000, report to
accompany S. 2705, 106th Cong., 2nd sess., S.Rept. 106-348 (Washington: GPO, 2000), p. 2.
79 While there is no proscriptive order in which the incoming President should nominate, or Congress should hold
hearings regarding, new senior Administration officials with national security responsibilities, a review of the cabinet
positions noted in the Presidential Succession Act of 1947 (3 U.S.C. §19) and the previous Administration’s National
Security Council and Homeland Security Councils may provide some assistance in prioritizing personnel placement
80 U.S. National Commission on Terrorist Attacks Upon the United States, The 9/11 Commission Report (Washington:
GPO, 2004), p. 422.
81 Sec. 7601(b) of P.L. 108-458.
and the full Senate should attempt to complete consideration of these nominations within 30 days
of submission by the newly elected President. In undertaking this responsibility, many security
observers see a healthy tension between Congress’ desire to act quickly to hold confirmation
hearings and the need to ensure that individuals with the relevant national security background
and experience have been put forth by the President-elect. In many cases, highly qualified career
Senior Executive Service personnel will be in an acting capacity for some of these Senate
confirmed positions. Thus the perceived urgency to fill these positions quickly may be negated
while Congress ensures individuals capable of meeting the demands of the position are selected
and confirmed. Congress may also
• work with the new Administration to understand its national security priorities
and where applicable have the changes in policies and programs reflected in the
• quickly assign new and existing Members of Congress to committees focusing on
national security issues to allow these individuals to receive briefings and
understand the issues for which they have oversight;
• hold hearings comprised of national security experts to gather ideas on
prospective U.S. national security policies and goals; and
• hold hearings soon after the new Administration has produced its national
security strategies, policies, and presidential directives to discuss objectives and
determine presidential priorities.
Some individuals, who are serving in appointed (noncareer) positions in the executive branch,
convert to career positions in the competitive service, the Senior Executive Service (SES), or the 83
excepted service. This practice, commonly referred to as “burrowing in,” is permissible when
laws and regulations governing career appointments are followed. While such conversions may
occur at any time, frequently they do so during the transition period when one Administration is
preparing to leave office and another Administration is preparing to assume office.
Generally, these appointees were selected noncompetitively and are serving in such positions as 84
Schedule C, noncareer SES, or limited tenure SES that involve policy determinations or require
a close and confidential relationship with the department or agency head and other top officials.
82 This text is excerpted from CRS Report RL34706, Federal Personnel: Conversion of Employees from Appointed
(Noncareer) Positions to Career Positions in the Executive Branch, by Barbara L. Schwemle.
83 Appointments to career competitive service positions include requirements for approved qualification standards,
public announcement of job vacancies, rating of applicants, and completion of a probationary period and three years of
continuous service; career SES positions include review by the Office of Personnel Management (OPM) and
certification of a candidate’s ability by a Qualifications Review Board; and career excepted service positions allow
agencies to establish their own hiring procedures, but require those systems to conform to merit system principles and
84 Appointments to SES positions that have a limited term may be for up to 36 months, and those that are to meet an
emergency (unanticipated or urgent need) may be for up to 18 months.
Many of the Schedule C appointees receive salaries at the GS-12 through GS-15 pay levels.85 The
noncareer and limited tenure members of the SES receive salaries under the pay schedule for 86
senior executives that also covers the career SES. Career employees, on the other hand, are to be
selected on the basis of merit and without political influence following a process that is to be fair
and open in evaluating their knowledge, skills, and experience against that of other applicants.
The tenure of noncareer and career employees also differs. The former are generally limited to the
term of the Administration in which they are appointed or serve at the pleasure of the person who
appointed them. The latter constitute a work force that continues the operations of government
without regard to the change of administrations. Paul Light, a professor of government at New
York University, who has studied appointees over the past several administrations, reportedly
believes that the pay, benefits, and job security of career positions underlie the desire of 87
individuals in noncareer positions to “burrow in.”
Beyond the fundamental concern that the conversion of an individual from an appointed
(noncareer) position to a career position may not have followed the legal and regulatory
requirements, “burrowing in” raises other concerns. When the practice occurs, there may be these
perceptions (whether valid or not): that an appointee converting to a career position may limit the
opportunity for other employees (who were competitively selected for their career positions,
following examination of their knowledge, skills, and experience) to be promoted into another
career position with greater responsibility and pay; or that the individual who is converted to a
career position may seek to undermine the work of the new Administration whose policies may
be at odds with those that he or she espoused when serving in the appointed capacity. Both
perceptions may increase the tension between noncareer and career staff, thereby hindering the
effective operation of government at a time when the desirability of creating “common ground” 88
between these staff to facilitate government performance has been emphasized.
Appointments to career positions in the executive branch are governed by law and regulations
that are codified in Title 5 of the United States Code and Title 5 of the Code of Federal
Regulations. For purposes of both, appointments to career positions are among those activities
defined as “personnel actions,” a class of activities that can be undertaken only in accordance
with strict procedures. In taking a personnel action, each department and agency head is
responsible for preventing prohibited personnel practices; for complying with, and enforcing,
applicable civil service laws, rules, and regulations and other aspects of personnel management;
and for ensuring that agency employees are informed of the rights and remedies available to
them. Such actions must adhere to the nine merit principles and twelve prohibited personnel
85 GS refers to the General Schedule, the pay schedule that covers white-collar employees in the federal government.
As of January 2008, the salaries from GS-12, step 1, to GS-15, step 10, in the Washington, DC, pay area ranged from
$69,764 to $149,000.
86 Salaries for members of the SES are determined annually by agency heads “under a rigorous performance
management system,” and range from the minimum rate of basic pay for a senior level (SL) employee (120% of the
minimum basic pay rate for GS-15; $114,468, as of January 2008) to either EX Level III ($158,500, as of January
2008), in agencies whose performance appraisal systems have not been certified by OPM as making “meaningful
distinctions based on relative performance,” or EX Level II ($172,200, as of January 2008), in agencies whose
performance appraisal systems have been so certified.
87 Christopher Lee, “Political Appointees “Burrowing In,” Washington Post, Oct. 5, 2007, p. A19.
88 See, for example, Robert Maranto, Beyond a Government of Strangers: How Career Executives and Political
Appointees Can Turn Conflict to Cooperation (Lanham: Lexington Books, 2005), and Dana Michael Harsell, “Working
With Career Executives to Manage for Results,” in Judith E. Michaels, Becoming An Effective Political Executive: 7 nd
Lessons from Experienced Appointees, 2 ed. (Washington: IBM Center for the Business of Government, Jan. 2005),
practices that are codified at 5 U.S.C. §2301(b) and §2302(b), respectively. These principles and
practices are designed to ensure that the process for selecting career employees is fair and open
(competitive), and without political influence.
Department and agency heads also must follow regulations, codified at Title 5 of the Code of
Federal Regulations, that govern career appointments. These include Civil Service Rules 4.2, that
prohibits racial, political, or religious discrimination, and 7.1, that addresses an appointing
officer’s discretion in filling vacancies. Other regulations provide that Office of Personnel
Management (OPM) approval is required before employees in Schedule C positions may be
detailed to competitive service positions, public announcement is required for all SES vacancies
that will be filled by initial career appointment, and details to SES positions that are reserved for
career employees (known as Career-Reserved) may only be filled by career SES or career-type 89
During the period June 1, 2008, through January 20, 2009, defined as the Presidential Election 90
Period, certain appointees are prohibited from receiving financial awards. These appointees,
referred to as senior politically appointed officers, are (1) individuals serving in noncareer SES
positions; (2) individuals serving in confidential or policy determining positions as Schedule C
employees; and (3) individuals serving in limited term and limited emergency positions.
When a department or agency, for example, converts an employee from an appointed (noncareer)
position to a career position without any apparent change in duties and responsibilities, or that
appears to be tailored to the individual’s knowledge and experience, such actions may invite
scrutiny. OPM and the Government Accountability Office (GAO) each conduct oversight related
to conversions of employees from noncareer to career positions to ensure that proper procedures
have been followed.
In addition to its general oversight authority, OPM conducts pre-appointment reviews of certain
appointments to career positions in the competitive service and the SES during the transition. The
agency announces this review in a memorandum to the heads of departments and agencies early
in the year in which the presidential election occurs. OPM released the memorandum covering
the 2008 transition on March 17, 2008, and it is effective from that date through January 20,
2009. A “Pre-Appointment Review Checklist” is included as an attachment to the OPM
memorandum and lists the documentation that a department’s or agency’s Director of Human
Resources must submit to OPM along with a dated cover letter. OPM cautions departments and
agencies not to
[C]reate or announce a competitive service vacancy for the sole purpose of selecting a
current or former Schedule C or Noncareer SES employee.
[R]emove the Schedule C or Noncareer SES elements of a position solely to appoint the 91
incumbent into the competitive service.
To assist departments and agencies, OPM also publishes the Presidential Transition Guide to 92
Federal Human Resources Management every four years. The current edition, released in June
89 These regulations are codified at 5 C.F.R. §300.301(c), 5 C.F.R. §317.501, and 5 C.F.R. §317.903(c), respectively.
90 5 U.S.C. §4508 and 5 C.F.R. §451.105.
91 U.S. Office of Personnel Management, Memorandum for Heads of Departments and Agencies, from Linda M.
Springer, Director, Appointments and Awards During the 2008 Presidential Election Period, March 17, 2008.
2008, includes detailed guidance on standards of ethical conduct, appointments, and
compensation for federal employees.
GAO’s oversight focuses on review, after the fact, of conversions from noncareer to career
positions. The agency has begun to collect data from executive branch departments and agencies
on such conversions that have occurred since its last evaluation was published in May 2006. The
results of that audit covered the period May 2001 through April 2005, and provide the most
current retrospective data. The evaluation found that, of 130 conversions at GS-12 or higher,
for 37 of these conversions it appears that agencies did not follow proper procedures or
agencies did not provide enough information for us to make an assessment. For 18 of the 37
of these conversions, it appears that agencies did not follow proper procedures. Some of the
apparent improper procedures included: selecting former noncareer appointees who appeared
to have limited qualifications and experience for career positions, creating career positions
specifically for particular individuals, and failing to apply veteran’s preference in the 93
As part of its oversight of government operations, Congress also monitors conversions. In the th
110 Congress, staffing at the Departments of Homeland Security (DHS) and Justice (DOJ) has
been of particular interest, especially in the wake of the leadership and management deficiencies
at DHS during and after Hurricane Katrina, and improper procedures used by DOJ staff in 94
selecting and removing United States attorneys. Both departments received letters from
Members of Congress reminding them to examine conversions: the Chairman of the House
Committee on Homeland Security, Representative Bennie Thompson, wrote to the DHS Secretary
in February 2008, and Senators Dianne Feinstein and Charles Schumer, members of the Senate
Committee on the Judiciary, wrote to the Attorney General in July 2008 about this issue.
In assessing the current situation, Congress may decide that the existing oversight is sufficient. If
Congress determines that additional measures are needed to further ensure that conversions from
appointed (noncareer) positions to career positions are conducted according to proper procedures
and transparent, Congress could direct OPM, and the departments and agencies, to include
information on conversions in the annual performance plans that accompany the submission of
their budget justifications to the Hill each February. The Government Accountability Office and
OPM could jointly explore options that would result in their recommending and taking,
respectively, any remedial actions that are necessary to address improper conversions promptly.
OPM also could be directed by Congress to report on whether any changes are needed in the time
92 U.S. Office of Personnel Management, Presidential Transition Guide to Federal Human Resources Management,
June 2008, available at http://www.chcoc.gov/Transmittals/Attachments/trans1300.pdf.
93 U.S. Government Accountability Office, Personnel Practices; Conversions of Employees from Noncareer to Career
Positions May 2001-April 2005, GAO-06-381, May 2006, pp. 4-5. For a discussion of findings from earlier GAO
evaluations, see CRS Report RL34722, Presidential Transitions: Issues Involving Outgoing and Incoming
Administrations, by L. Elaine Halchin.
94 See, for example, U.S. Congress, House Select Bipartisan Committee to Investigate the Preparation For and
Response to Hurricane Katrina, A Failure of Initiative: Final Report of the Select Bipartisan Committee to Investigate thnd
the Preparation For and Response to Hurricane Katrina, 109 Cong., 2 sess. (Washington: GPO, Feb. 15, 2006);
U.S. Congress, Senate Committee on Homeland Security and Governmental Affairs, Hurricane Katrina: A Nation Still thnd
Unprepared. Special Report, 109 Cong., 2 sess., S.Rept. 109-322 (Washington: GPO, 2006); and U.S. Department
of Justice, Office of Professional Responsibility and Office of the Inspector General, An Investigation of Allegations of
Politicized Hiring by Monica Goodling and Other Staff in the Office of the Attorney General, July 28, 2008.
period covered by the agency’s pre-appointment review of conversions, or in the Presidential
Election Period, that restricts financial awards to senior politically appointed officers. OPM
issued its memorandum on pre-appointment review for 2000 on February 18; for 2004, on March
18; and for 2008, on March 17. As discussed above, the dates of the Presidential Election Period
are defined by law, and in a presidential election year, cover the period from June 1 through the
following January 20.
The installation of executive branch political appointees and federal judges is another area of
presidential activity that may be of concern to Congress in the last months of an Administration.
Under certain circumstances, outgoing Presidents have used the constitutional authority of the
office to make recess appointments that lasted into the succeeding presidency.
In general, the President and the Senate share the power to fill the top non-elected offices of the
United States government. As part of its system of checks and balances, the Constitution provides
a general framework for appointments to these positions:
[The President] shall nominate, and by and with the Advice and Consent of the Senate, shall
appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and
all other Officers of the United States, whose Appointments are not herein otherwise
provided for, and which shall be established by Law: but the Congress may by Law vest the
Appointment of such inferior Officers, as they think proper, in the President alone, in the 95
Courts of Law, or in the Heads of Departments.
In practice, the appointment process has three phases: 1) the President selects, vets, and
nominates an individual, with or without input from Senators; 2) the Senate considers the
nomination, with or without further action; and 3) if the nomination is confirmed by the Senate,
the President signs a commission, and the appointee is sworn in.
The Constitution also empowers the President unilaterally to make a temporary appointment to 96
such a position if it is vacant and the Senate is in recess. Such an appointment, termed a recess 97
appointment, expires at the end of the following session of the Senate. At the longest, a recess
appointment made in early January, after the beginning of a new session of the Senate, would last
until the Senate adjourns sine die at the end of the following year, a period that could be nearly
two years in duration.
95 Art. II, § 2, cl. 2.
96 Article 2, § 2, clause 3 reads, “The President shall have Power to fill up all Vacancies that may happen during the
Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.”
97 Each Congress covers a two-year period, generally composed of two sessions.
Unless otherwise specified in law, appointees to executive branch positions usually serve at the
pleasure of the President. That is, they serve for an indeterminate period of time and can be 98
removed by the President at any time for any reason (or no stated reason). By tradition,
appointees to these positions usually step down when the appointing President leaves office,
unless asked to stay by the President-elect.
Congress has periodically elected to set a specific term of office for a particular position, restrict
the President’s power of removal for a particular position, or both. Some removal restriction
provisions require only that the President inform Congress of his reasons for removing an official,
while others require that a certain threshold, such as “neglect of duty, or malfeasance in office, or 99
for other good cause shown,” be met. The use of fixed terms and removal restrictions has been
more common for positions on regulatory and other boards and commissions, for which Congress
has elected to establish a greater level of independence from the President, than for positions in 100
executive departments and agencies. An appointee to a position with a fixed term and
protection from removal may serve during more than one presidency; he or she is not required to
step down when the appointing President leaves office, and the incoming President may not
remove him or her unless the grounds for such removal would meet the threshold established in
statute. An appointee to a position with a fixed term but no specified protection from removal 101
may be protected from removal nonetheless, based on case law. Even where an appointee to
such a position is not protected from removal, it could be argued that the fixed term establishes
the expectation that the incumbent will be able to serve for a certain period. However, removal of
such an appointee by the incoming President might entail the expenditure of more political capital
than would otherwise be required.
Under the Constitution, most federal judges—those appointed under Article III—“hold their 102
Offices during good Behaviour,” and this is generally understood to confer lifetime tenure.
Consequently, although they, like the executive branch officials discussed above, are appointed to
their offices by the President, with the advice and consent of the Senate, they are not subject to
98 It has long been recognized that “the power of removal [is] incident to the power of appointment.” (Ex Parte Hennen,
38 U.S. (13 Pet.) 230, 259 (1839).)
99 There appears to be no standard clarifying under what circumstances the thresholds set by these statutory terms
regarding removal might be met. (See Marshall J. Breger and Gary J. Edles, “Established by Practice: The Theory and
Operation of Independent Federal Agencies,” Administrative Law Review, vol. 52 (2000), p. 1111, at pp. 1144-1145.) A
Senate committee has asserted, however, that a removal for good cause must be based on “some type of misconduct,”
as opposed to the refusal to carry out a presidential order. (See U.S. Congress, Senate Committee on Governmental thst
Affairs, Independent Counsel Reauthorization Act of 1987, report to accompany S. 1293, 100 Cong., 1 sess.,S.Rept.
100-123 (Washington: GPO, 1987), pp. 12-13.).
100 Although fixed terms and removal protections for department and agency positions are unusual, notable examples
do exist. The position of Commissioner of Social Security, for example, has a six-year term, and “[a]n individual
serving in the office of Commissioner may be removed from office only pursuant to a finding by the President of
neglect of duty or malfeasance in office” (42 U.S.C. § 902(a).)
101 See, for example, S.E.C. v. Blinder, Robinson & Co., Inc., 855 F.2d 677, 681 (10th Cir. 1988), in which the Court of
Appeals for the Tenth Circuit stated that “it is commonly understood that the President may remove a commissioner
only for ‘inefficiency, neglect of duty or malfeasance in office.’”
102 Article III, § 1.
removal by the President, and may continue to hold office into the next presidency. These judges 103
may be removed only after conviction on impeachment.
Outgoing Presidents have made recess appointments, during their final months in office, to each
of the kinds of positions described above. The potential tenure for recess appointees to positions
without removal protections is the same as it would be if the appointee had been confirmed by the
Senate; they typically leave with the appointing President. Recess appointees to positions with
fixed terms and removal protection, however, may serve until the expiration of the term to which 104
they were appointed or the expiration of the recess appointment, whichever occurs earlier.
Recess appointees to Article III judgeships may serve until the expiration of the recess 105
appointment. A President could, at the end of his presidency, use a recess appointment to
bypass the Senate and fill a fixed-term position or federal judgeship for a period that would
outlast his time in office by a year or more. As noted above, even an appointee without explicit
statutory removal protection might prove difficult or costly for an incoming President to remove.
In some cases, recess appointees who serve past the end of an Administration might be
“consensus appointees,” who have the support of the incoming President and the reconstituted
Senate. In other cases, however, an outgoing President could install more controversial
appointees, who would not be nominated, by the new President, or confirmed, by the
reconstituted Senate, to the positions to which they are appointed. It could be argued that the
outgoing President carries the full constitutional authority of the office until his term is over, that
he must be able to exercise that authority as he sees fit, and that he should not be expected to
abstain from implementing his agenda until he leaves office. Furthermore, it might be argued,
other recent Presidents have made recess appointments in their final months in office, and some
of these recess appointments have been to positions with terms that carry over into the following
Presidency. A counter argument might be made that, in making recess appointments to fixed term
positions with removal protections, an outgoing President would be effectively circumventing the
Senate and undermining the incoming President.
Beginning in the fall of 2007, the Senate has used parliamentary procedures to prevent the
occurrence of a recess during which the President might make recess appointments. Such
procedures, if employed during the final months of a presidency, might prevent the President
from exercising the authority in the manner described above.
103 See CRS Report RL32935, Congressional Oversight of Judges and Justices, by Elizabeth B. Bazan and Morton
Rosenberg (“Section V. Impeachment”).
104 As previously noted, a recess appointment can last for as much as nearly two years. A full fixed term is usually of
longer duration, but sometimes individuals are appointed to the final portion of an unexpired term that is already under
way (e.g., the final year of a five year term begun by another appointee).
105 Recess appointments to Article III judgeships, though not uncommon historically, have become rare, and
controversial, in recent decades. (See CRS Report RL32971, Judicial Recess Appointments: A Legal Overview, by T. J.
Halstead.) President William J. Clinton made one such appointment less than a month before he left office, on
December 27, 2000. As of November 24, 2008, President George W. Bush had made two recess appointments to
federal judgeships, both in early 2004.
The plan to use these procedures during the 110th Congress was first announced in the Senate on
November 16, 2007, when the Senate Majority Leader stated that the Senate would “be coming in 106
for pro forma sessions during the Thanksgiving holiday to prevent recess appointments.” The 107
Senate recessed later that day and pro forma meetings were convened on November 20, 23, 27,
and 29, with no business conducted. The Senate next conducted business after reconvening on
December 3, 2007. The President made no recess appointments during that period.
On December 19, 2007, the Senate Majority Leader announced that similar pro forma meetings
would be held in the following days, again for the purpose of preventing the President from 108
making recess appointments. Later that day, the Senate agreed, by unanimous consent, to hold a
series of pro forma meetings until sine die adjournment of the first session, and to hold another 109
series beginning with the convening of the second session. The Senate recessed on December
19, 2007, and pro forma meetings were held on December 21, 23, 26, 28, and 31. The Senate
adjourned sine die on December 31, 2007. On January 3, 2008, the Senate convened its second
session, but no other business was conducted. Pro forma meetings of the Senate were held on
January 7, 9, 11, 15, and 18. On January 22, the Senate reconvened and conducted business. The
President made no recess appointments between December 19, 2007, and January 22, 2008.
Similar procedures were followed during other periods, in 2008, that would otherwise have been 110
Senate recesses of a week or longer in duration. On September 17, 2008, the Senate Majority
Leader announced, with regard to the Senate, “We are going to have to get some committee
hearings underway, which is why we are not going to adjourn. We will be in pro forma session so
committees can still meet, though we won’t have any activities here on the floor as relates to 111
these markets.” On October 2, 2008, the Senate agreed, by unanimous consent, to hold a series
of pro forma meetings between that date and November 17, 2008, when they would reconvene 112
and conduct business.
106 Sen. Harry Reid, “Recess Appointments,” remarks in the Senate, Congressional Record, daily edition, vol. 153
(Nov. 16, 2007), p. S14609.
107 A pro forma session is a short meeting of the House or Senate during which it is understood that no business will be
108 Sen. Harry Reid, “Order of Business,” remarks in the Senate, Congressional Record, daily edition, vol. 153 (Dec.
19, 2007), p. S15980.
109 Sen. Harry Reid, “Order of Procedure,” remarks in the Senate, Congressional Record, daily edition, vol. 153 (Dec.
19, 2007), p. S16069.
110 See Sen. Harry Reid, “Order of Procedure,” remarks in the Senate, Congressional Record, daily edition, vol. 154
(Feb. 14, 2008), p. S1085; Sen. Harry Reid, “Order of Procedure,” remarks in the Senate, Congressional Record, daily
edition, vol. 154 (Mar. 14, 2008), p. S219; Sen. Harry Reid, “Orders of Procedure,” remarks in the Senate,
Congressional Record, daily edition, vol. 154 (May 22, 2008), p. S4849; Sen. Carl Levin, “Orders for Monday, June
30, and Monday July 7, 2008,” remarks in the Senate, Congressional Record, daily edition, vol. 154 (June 27, 2008), p.
S6336; and Sen. Harry Reid, “Order for Pro Forma Sessions,” remarks in the Senate, Congressional Record, daily
edition, vol. 154 (Aug. 1, 2008), p. S8077.
111 Sen. Harry Reid, “The Economy,” remarks in the Senate, Congressional Record, daily edition, vol. 154 (Sept. 17,
2008), p. S8907.
112 Sen. Carl Levin, “Orders for Monday, October 6, 2008, through Monday, November 17, 2008,” remarks in the
Senate, Congressional Record, daily edition, vol. 154 (Oct. 2, 2008), p. S10504.
When a new Congress convenes in January, one of its first orders of business is to receive the
annual budget submission of the President for the upcoming fiscal year, which begins on October
1. Following receipt of the President’s budget, Congress begins the consideration of the budget
resolution and other budgetary legislation. The transition from one presidential Administration to
another raises special issues regarding the annual budget submission. Which President—the
outgoing President or the incoming one—is required to submit the budget, and how will the
transition affect the timing and form of the submission? This section provides background 113
information that addresses these questions.
The Budget and Accounting Act of 1921,114 as amended, requires the President to submit a budget
annually to Congress toward the beginning of each regular session. This requirement first applied
to President Harding for FY1923.
The deadline for submission of the budget, first set in 1921 as “on the first day of each regular
session,” has changed several times over the years:
• in 1950, to “during the first 15 days of each regular session”;
• in 1985, to “on or before the first Monday after January 3 of each year (or on or
before February 5 in 1986)”; and
• in 1990, to “on or after the first Monday in January but not later than the first
Monday in February of each year.”
The 20th Amendment to the Constitution, ratified in 1933, requires each new Congress to convene
on January 3 (unless the date is changed by the enactment of a law) and provides a January 20
beginning date for a new President’s four-year term of office. Therefore, under the legal
framework for the beginning of a new Congress, the beginning of a new President’s term, and the
deadline for the submission of the budget, all outgoing Presidents prior to the 1990 change were 115
obligated to submit a budget.
The 1990 change in the deadline made it possible for an outgoing President to leave the annual
budget submission to his successor, an option which the outgoing Presidents since then have
113 For additional information on this topic, see CRS Report RS20752, Submission of the President’s Budget in
Transition Years, by Robert Keith.
114 The 1921 act was P.L. 67-13 (June 10, 1921); 42 Stat. 20; 31 U.S.C. §1105.
115 The 1990 change was made by Section 13112(c)(1) of the Budget Enforcement Act of 1990 (104 Stat. 1388-608 and
609), which was included in the Omnibus Budget Reconciliation Act of 1990 (P.L. 101-508).
Incoming Presidents, except for Harding, Clinton, and George W. Bush, assumed their position
with a budget of their predecessor in place. Under the 1921 act, Presidents may submit budget
revisions to Congress at any time. Six incoming Presidents chose to modify their predecessor’s
policies by submitting budget revisions shortly after taking office: Eisenhower, Kennedy, Nixon, 116
Ford, Carter, and Reagan. Four Presidents—Roosevelt, Truman, Johnson, and George H. W.
Bush—chose not to submit budget revisions.
Because President George H. W. Bush chose not to submit a budget for FY1994 (and was not
obligated to do so), President Clinton submitted the original budget for FY1994 rather than
budget revisions. Similarly, the budget for FY2002 was submitted by the incoming President
George W. Bush, rather than by outgoing President Clinton. The Office of Management and 117
Budget (OMB) provided considerable advance notice of the plan for FY2002.
President George W. Bush indicated early on that he will not submit a budget for FY2010, which
is subject to a deadline of Monday, February 2, 2009. In announcing the decision, OMB Director
Jim Nussle stated the following:
The FY 2010 budget will be submitted by the next President. In order to lay the groundwork
for the next Administration, we intend to prepare a budget database that includes a complete
current services baseline and to gather information to develop current services program
estimates for FY 2010 from which the incoming Administration can develop its budget 118
During the period beginning with the full implementation of the congressional budget process (in
1976 for FY1977), five transitions of presidential administration have occurred. The three
outgoing Presidents required to submit a budget during this period (Ford, Carter, and Reagan) did
so on or before the statutory deadline.
Once the original budget for a fiscal year has been submitted, a President or his successor may
submit revisions at any time. Two of the incoming Presidents during this period (Carter and
Reagan) submitted budget revisions and one (George H. W. Bush) did not. The FY1978 revisions
by President Carter (a 101-page document) were submitted on February 22 and the FY1982
revisions by President Reagan (an initial 159-page document and a subsequent 435-page
document) were submitted on March 10 and April 7, respectively.
As stated previously, Presidents Clinton and George W. Bush submitted the original budgets for
FY1994 and FY2002 as incoming Presidents (on April 8, 1993 and April 9, 2001, respectively).
In past years, Congress authorized the submission of a budget for a fiscal year after the statutory
deadline by enacting a deadline extension in law (see, for example, the deadline extension for the
116 CRS Report 88-661 GOV, The President’s Budget Submission: Format, Deadlines, and Transition Years, by
Virginia A. McMurtry and James V. Saturno, pp. 17-26. (The report is archived and may be obtained from the authors.)
117 See U.S. Office of Management and Budget, Memorandum M-00-12, Requirements for Development of the FY2002
Transition Budget, June 2, 2000, available at http://www.whitehouse.gov/omb/memoranda/m00-12.html.
118 U.S. Office of Management and Budget, Memorandum 08-17, Requirements for the FY 2010 Budget Process, April
7, 2008, p. 1, available at http://www.whitehouse.gov/omb/memoranda/fy2008/m08-17.pdf.
FY1986 budget in P.L. 99-1). Beginning in the late 1980s, however, several original budgets have
been submitted late without authorization; for FY1989 and the transition-year budget for FY1994,
for example, the budget was submitted after the deadline (by 45 and 66 days, respectively)
without the consideration of any measure granting a deadline extension.
Like the budget itself, the revisions may take whatever form the President desires. They have
ranged from piecemeal submissions in the earlier instances to consolidated budget messages
beginning with President Ford.
Although Presidents Reagan, Clinton, and George W. Bush did not submit detailed budget
proposals during their transitions until early April, each of them advised Congress regarding the
general contours of their economic and budgetary policies in special messages submitted to
Congress in February concurrently with a presentation made to a joint session of Congress:
• on February 18, 1981, President Reagan submitted a document containing an
economic plan and initial budget proposals for FY1982, America’s New
Beginning: A Program for Economic Recovery, in conjunction with an address to
a joint session of Congress;
• on February 17, 1993, President Clinton submitted to Congress a budgetary
document, A Vision of Change for America, to accompany his address to a joint
session of Congress. The 145-page document outlined the President’s economic
plan and provided initial budget proposals in key areas; and
• on February 28, 2001, President George W. Bush submitted a 207-page budget
summary to Congress, A Blueprint for New Beginnings: A Responsible Budget
for America’s Priorities, the day after his address to a joint session of Congress.
Although President George H. W. Bush did not submit a revision of President Reagan’s FY1990
budget, he submitted a 193-page message to Congress (Building a Better America) in conjunction
with a joint address to Congress on February 9, 1989. The message included revised budget
To facilitate the development of the budget for the incoming Administration, President George H.
W. Bush (on January 6, 1993) and President Clinton (on January 16, 2001) submitted budget
documents that provided historical data, revised budget projections, and updated economic and
L. Elaine Halchin
Specialist in American National Government
Area of Expertise Name Phone E-mail
Agency Rulemaking Rick Beth 7-8667 firstname.lastname@example.org
Curtis Copeland 7-0632 email@example.com
Executive Clemency Garrett Hatch 7-7822 firstname.lastname@example.org
Executive Orders Elaine Halchin 7-0646 email@example.com
Government Records Harold Relyea 7-8679 firstname.lastname@example.org
National Security John Rollins 7-5529 email@example.com
Personnel-Political to Career Barbara Schwemle 7-8655 firstname.lastname@example.org
Political Appointments Henry Hogue 7-0642 email@example.com
Submission of the President’s Budget Robert Keith 7-8659 firstname.lastname@example.org