MSU expert: What the history of lame-duck presidents can tell us about President Biden’s final actions

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EAST LANSING, Mich. – U.S. presidential elections take place in November, but the winner of the election does not take office until late January the following year. This period of transition is a unique characteristic of American politics and democracy, but it can result in significant decisions from federal appointments to controversial pardons. As President Joe Biden prepares to exit the White House, many are wondering what final actions he could take before President-elect Donald Trump’s inauguration. 

Jordan Cash is an assistant professor of political theory and constitutional democracy at Michigan State University’s James Madison College. Here, he answers questions about the history of lame-duck presidents in the U.S. and what it suggests about how President Biden could spend his final days.

Content includes excerpts from an article originally published in The Conversation.

What is a lame-duck period in politics?

There’s a 2 ½-month period between Election Day and Inauguration Day. It’s commonly known as the lame-duck period, when the outgoing president still holds official power but their successor has been chosen and is waiting to take the reins. Donald Trump is constitutionally barred from a third term in office by the 22nd Amendment, so he will be a lame duck from his first day in office, though his successor will not be known until 2028.

During the lame-duck transitional period, like the one in which Joe Biden now finds himself, the outgoing president typically works with his successor to ensure the peaceful transfer of power. The president-elect looks to fill the thousands of positions that will staff their new administration, which sometimes involves working with the Senate to vet U.S. Cabinet nominees in advance of official votes on their appointments.

Why do lame-duck periods exist in the U.S.?

There are historical reasons for the long lame-duck period in the U.S. constitutional rules allowing states to set their own election days, as well as more limited communication and travel technology in the 18th and 19th centuries which meant that for most of the nation’s history it has taken a significant amount of time for election results to become clear, and even longer for victorious candidates to travel to the nation’s capital.

In fact, the original day a new president’s term was to start was March 4 — though travel delays meant George Washington wasn’t able to be inaugurated until April 30, 1789, after being elected on Jan. 7, 1789. Inauguration Day changed in 1933 with the ratification of the 20th Amendment, which started congressional sessions on Jan. 3 and presidencies on Jan. 20.

How does the U.S. lame-duck period differ from other countries?

The lame-duck period in the U.S. is longer than in other Western democracies, which tend to make the transition over a period of just days. For instance, when the U.K. Labour Party won parliamentary elections on July 4, 2024, the party’s leader, Keir Starmer, was installed as prime minister and was moving into the official residence at No. 10 Downing St. within a day. One explanation for this difference is structural. In parliamentary systems, the opposition party has what is called a “shadow cabinet,” counterparts to the majority party’s official cabinet that can assume power quickly if their party wins an election.

In the U.S., by contrast, the new president must build an administration from the ground up, appointing approximately 4,000 administration positions, including the heads of 15 executive departments making up the cabinet and 10 other cabinet-level officials. Even a president-elect from the same party as the incumbent will want to bring in their own staff and allies. 

Can lame-duck periods make a country vulnerable?

Long lame-duck periods can be a source of danger. In the period between Abraham Lincoln’s election in November 1860 and his inauguration in March 1861, seven southern states seceded from the Union. Incumbent President James Buchanan proved unwilling to take a strong stand against the secessionists, allowing the crisis to grow until Lincoln took office and ultimately resulting in the Civil War. In 1932, Franklin D. Roosevelt was elected while the nation was in the throes of the Great Depression. Yet Roosevelt, like Lincoln, could not take action for five months — until he took office in March 1933 — leaving the country adrift in uncertainty during an extraordinary economic crisis.

What are some examples of presidents taking action before a presidential transition?

Lame-duck presidents may be able to take advantage of the relative lack of accountability provided by the fact that they will soon be leaving office. The most famous example of this was John Adams. After Adams and his Federalist Party allies lost the presidency and Congress to Thomas Jefferson and his Democratic-Republicans in the election of 1800, they packed the federal courts. Adams and the Federalists appointed and confirmed Federalist John Marshall to be chief justice, reduced the number of justices on the Supreme Court from six to five to deny Jefferson a future Supreme Court appointment and created 16 new federal judgeships, which they filled with Federalists.

While some of these actions—like the smaller Supreme Court—were reversed by Jefferson and his allies, Adams’ actions were a particularly egregious example of what a motivated lame-duck president can do, with the help of a willing lame-duck Congress. But it remains common for lame-duck presidents to aggressively employ their clemency powers.

How have modern presidents used clemency powers in their final days?

Bill Clinton issued 140 pardons and 36 commutations on his last day in office, including a controversial pardon for billionaire Marc Rich, who had been convicted of tax fraud and had fled the country. Notably, Rich’s ex-wife, Denise Rich, was a major donor to the Democratic Party. Donald Trump similarly pardoned 74 people and commuted 70 other sentences on the last day of his first term in office, including his former political strategist Steve Bannon, who had been indicted for wire fraud and money laundering.

Although it is unlikely that the current divided Congress will help with much of anything before the new Congress takes office in January, it wouldn’t be surprising if Joe Biden takes some unpopular and unexpected actions before passing power to his successor.

Read on MSUToday.

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