CONSTITUTIONAL TRANSITIONS: THE ROLE OF LAME DUCKS AND CARETAKERS

Abstract

This Article is the first to present a common theoretical framework and propose a constitutional regime applicable to transitional governments in both presidential and parliamentary systems alike. It argues that these transitional governments are different in that caretaker status in parliamentary systems should be accorded early, before elections, from the time the government lost its parliamentary base of support. The caretaker status also extends longer than in presidential systems because, even after elections, it might not be known who will be the new Prime Minister until a coalition is formed. In contrast, lame-duck president status is mostly relevant after elections, when it is clear the lame duck is not continuing for another term. These respective definitions for caretaker and lame-duck governments stem from the inquiry as to when each of these governments suffer from the combined democratic and agency difficulties associated with transitional governments. But with these duration differences in mind, a common treatment should be accorded those who do fall under the definitions of caretaker and lame duck. This Article argues that caretaker conventions that limit the authority and scope of discretion of caretaker governments developed in parliamentary systems to give meaning to the dependence of government on parliament. Despite the lack of dependence of the president on Congress, this Article suggests that democratic principles support the application of similar principles to American lame-duck presidents after elections are held. This Article further contends that the agency difficulties posed by these transitional governments are similar under a parliamentary or presidential scheme, and distinguishes between risks posed pre- and post-elections. This Article concludes with a detailed solution applicable to both parliamentary and presidential systems that addresses both the democratic and agency concerns raised by the actions of transitional governments. This solution limits the transitional government's scope of discretion to regular affairs, and provides clear guidelines as to what actions fall under this criterion. Extraordinary actions should be allowed when there is a vital public need for action or the incoming legislature has pre-approved the extraordinary actions. In light of the evolving nature of the political culture and the economic and security issues already pressing on all governments, it is wise to protect the basic democratic values of representation, accountability, and majority rule that caretaker or lame-duck governments imperil.