In theory, a President is still President with the full powers of the office until the last second of the term.  In practice, the powers of a president in the last weeks in office are somewhat limited.  Any legislative priorities that could not get through the previous Congress are unlikely to be rushed through by the new Congress.  (In fact, most times, Congress will spend much of the seventeen days between January 3 and January 20 in the necessary work of organizing rather than focusing on legislation.)

On the foreign policy front, it doesn’t take a Michael Flynn violating the law for our allies and adversaries to know that any decision made by the outgoing president can be quickly reversed by the new president.  In short, the outgoing president really is unable to make the type of long-term commitment that would encourage another country to make a deal.

So that leaves a president with actions that can be taken by the president alone.  Not surprisingly, the typical president is giving final approval to regulations and giving pardons and commuting sentences.  The enactment (or repeal) of regulations is a time-consuming process under the Administrative Procedure Act, and the new Administration is unable to simply set aside the last minute regulations.  (In part to deal with this problem, it is possible for Congress to reject these regulations.)  And a pardon or commutation is irreversible. Continue Reading...