Order Code RL34722
Presidential Transitions: Issues Involving
Outgoing and Incoming Administrations
October 23, 2008
L. Elaine Halchin
Coordinator
Government and Finance Division

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Presidential Transitions: Issues Involving Outgoing and
Incoming Administrations
Summary
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) and
the practice of “burrowing in” (which involves the conversion of political appointees
to career status in the civil service) are two 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.

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Subject Areas and CRS Staff
Area of Expertise
Name
Div.
Telephone
Agency Rulemaking
Rick Beth
7-8667
G&F
Curtis Copeland
7-0632
Executive Orders
Elaine Halchin
G&F
7-0646
Government Records
Harold Relyea
G&F
7-8679
National Security
John Rollins
FDT
7-5529
Personnel — Political to Career
Barbara Schwemle
G&F
7-8655
Conversions
Political Appointments
Henry Hogue
G&F
7-0642
Submission of the President’s
Robert Keith
G&F
7-8659
Budget

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Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Agency Rulemaking . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
“Midnight Rulemaking” . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Card Memorandum . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Bolten Memorandum . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Congressional Disapproval of “Midnight Rules” . . . . . . . . . . . . . . . . . . . . . 6
Executive Orders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Timing and Volume of Executive Orders . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Content of Executive Orders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Government Records . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Agency Records
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Presidential Records . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
2008-2009 Presidential Transition: National Security
Considerations and Options . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
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 . . . . . . . . 18
Phase 5: Presidential Inauguration to the Establishment of a
New National Security Team and Policies . . . . . . . . . . . . . . . . . 18
Personnel — Political to Career Conversions (“Burrowing In”) . . . . . . . . . . . . . 20
Political Appointments into the Next Presidency . . . . . . . . . . . . . . . . . . . . . . . . 25
Appointment Authority for Officers of the United States . . . . . . . . . . . . . 25
Tenure During a Transition for a Confirmed Appointee . . . . . . . . . . . . . . 25
Tenure During a Transition for a Recess Appointee . . . . . . . . . . . . . . . . . 26
Senate Pro Forma Sessions to Block Recess Appointments . . . . . . . . . . . . 27
Submission of the President’s Budget in Transition Years . . . . . . . . . . . . . . . . . 29
Is the Outgoing or Incoming President Required to Submit the Budget? . . 29
Transition Budgets in Recent Years: Timing and Form . . . . . . . . . . . . . . . 30
List of Tables
Table 1. Number of Executive Orders Issued During
Presidential Transitions, 1977 - Present . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

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Presidential Transitions: Issues Involving
Outgoing and Incoming Administrations
Introduction
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 democracy.”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 alternative
perspective:
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 domestic.2
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.
(continued...)

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CRS-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 from the same political party “has little cause to hurry
through a slew of last-minute directives.”3 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 policy in the
short time” available before inauguration day.4 Moreover, the incumbent might use
the transition period to enact policies and effect changes that might stymie his
successor.
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
possible to tie his successor’s hands.5
During the 20th and 21st centuries, and beginning with Theodore Roosevelt, who took
office in 1901, there have been 17 presidential transitions, 10 of which were
interparty transitions: 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 W. Bush.
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
2 (...continued)
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.
4 Ibid.
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.)

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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 them.”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, management, agenda setting, and policy
formulation....”7 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 understated: “Since the 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 failures —
once in office.”8
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 and the disposition of presidential
records and vice presidential records, 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 transitions.
6 Howell and Mayer, “The Last One Hundred Days,” p. 535.
7 Ibid.
8 John P. Burke, Becoming President: The Bush Transition, 2000-2003 (Boulder, CO: Lynne
Rienner Publishers, 2004), p. 1.

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CRS-4
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.
Agency Rulemaking

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 are even higher.9
“Midnight Rulemaking”
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 rulemaking.”10 As one observer stated, putting rules
into effect before the end of a presidency is “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 seq.) and
various other statutes and executive orders.12
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
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. 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.

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postpone the effective dates of all major rules that they have promulgated in final
form as of the date of this Order, but that have not yet become effective.”13 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 new
Administration.
Card Memorandum. 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 the Federal Register but had not yet taken
effect.14 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 issued.15
Bolten Memorandum. 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 June 1, 2008, and final regulations should be issued
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.

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no later than November 1, 2008.”16 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 regarding agency
compliance with this memorandum.”17
Congressional Disapproval of “Midnight Rules”
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 publication.18 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 the 111th
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 deadline will be subject to congressional disapproval in the 111th
Congress.19 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
effect” (or shall not continue, if it has already taken effect), but also that the rule may
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.

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not be reissued in a “substantially” similar form without subsequent statutory
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 Influences on Rulemaking Through Appropriations
(continued...)

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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
future.
Executive Orders
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, discretion, and direct
presidential involvement.”23 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 presidential action.24 Another appealing feature of executive orders is that
they allow Presidents to act “quickly, forcefully, and (if they like) with no advance
notice.”25 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 whether the
Congress is likely to overturn a particular executive order,26 or as moving too
slowly.27
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
22 (...continued)
Provisions, by Curtis W. Copeland.
23 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-register/
executive-orders/disposition.html].
24 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.
25 Ibid., p. 138.
26 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.
27 Paul C. Light, The President’s Agenda: Domestic Policy Choice from Kennedy to Reagan
(Baltimore: Johns Hopkins University Press, 1991), p. 118.

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CRS-9
that when a President’s successor belongs to the opposition political party, “he has
every reason to hurry through last-minute public policies, doing whatever possible
to tie his successor’s hands.”28 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 accountability, because, again, voters do not have a subsequent chance
to express their approval or disapproval.”29
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 accomplish these objectives.30 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 serious legal
obstacles.”31

Timing and Volume of Executive Orders
Table 1 presents the number of executive orders issued by Presidents George
W. Bush, William J. Clinton, George Bush, Ronald Reagan, and Jimmy Carter in
each of three transition periods.32 These three periods are comparable, but not equal,
28 Howell and Mayer, “The Last One Hundred Days,” p. 533.
29 Ibid., p. 551.
30 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.
31 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.
32 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.

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in duration, which means it is more meaningful to compare data within each column
rather than across columns.
Table 1. Number of Executive Orders Issued During Presidential
Transitions, 1977 - Present
Incoming
Pre-election
Lame Duck
(First term)
President
Jan. 20-Apr. 30
Aug. 1-Election
Election-Jan. 20
George W. Bush
12
10
To be determined
(2001)
(2004)
William J. Clinton
10
13
(1996)
22
(1993)
11
(2000-2001)
(2000)
George Busha
11
7
14
(1989)
(1992)
(1992-1993)
Ronald Reagan
7
18
(1984)
12
(1981)
9
(1988-1989)
(1988)
Jimmy Carter
16
20
36
(1977)
(1980)
(1980-1981)
Sources: U.S. National Archives and Records Administration, “Executive Orders Disposition Tables,”
available at [http://www.archives.gov/federal-register/executive-orders/disposition.html].
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, respectively. Clinton issued 22,
and Carter issued 36.33 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 issued.34 Presidents who were
33 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.
34 Mayer, “Executive Orders and Presidential Power,” p. 457.

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CRS-11
succeeded by a member of the other party signed “nearly six additional orders ... in
the last month of their term, nearly double the average level.”35 When party control
of the White House did not change following a presidential election, there was “no
corresponding increase in order frequency....”36 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 January 1
through the end of October — than when they are not running for reelection.37
Content of Executive Orders
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 implemented.”38
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 the federal government on Friday, December 26,
1980.39 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 Federal Emergency
Management Agency.40 Turning to executive orders with policy implications,
President Ronald Reagan brought agency rulemaking under the control of the Office
of Management and Budget and required cost-benefit analyses be conducted for
proposed rules.41 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 held in Iran.42
35 Ibid.
36 Ibid.
37 Ibid., p. 459.
38 Ibid., p. 445.
39 E.O. 11971, Feb. 11, 1977, and E.O. 12255, Dec. 5, 1980, respectively.
40 E.O. 12669, Feb. 20, 1989, and E.O. 12673, Mar. 23, 1989, respectively.
41 E.O. 12291, Feb.17, 1981.
42 Executive Orders 12276 through 12285, Jan. 19, 1981.

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Government Records
Agency Records
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 must remain in the custody of the agency.”43 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 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 unauthorized removal or destruction of
federal records, their concealment,44 and for the unauthorized disclosure of protected
records, such as those containing personally identifiable or security classified
information.45
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
government computers, send by e-mail and post on the Web.”46 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.
43 U.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 [http://www.archives.gov/records-mgmt/bulletins/
2008/2008-02.html?template=print].
44 18 U.S.C. §2071.
45 5 U.S.C. §552a(i); 18 U.S.C. §793-794, 798.
46 Robert Pear, “In Digital Age, Federal Files Blip into Oblivion,” New York Times, Sept.
13, 2008, p. A1.

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CRS-13
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 about lost records has become more
acute.47
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 of materials on federal agency Web sites.”48 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 and forward it, along
with supporting documentation, to NARA.49 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
historical value.’”50
Presidential Records
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 federal custody and under the control of the
Archivist when a President departs.51 The statute also covers the official records of
the Vice President pertaining to the performance of executive duties.52 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 constitutional, statutory, or other official or
ceremonial duties of the President.”53
The statute states, “Nothing in this Act shall be construed to confirm, limit, or
expand any constitutionally-based privilege which may be available to an incumbent
47 Ibid.
48 Ibid.
49 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 [http://www.archives.gov/records-mgmt/basics/snapshot-public-
web-sites.html?template=p...].
50 Pear, “In Digital Age, Federal Files Blip into Oblivion,” p. A16.
51 44 U.S.C. §§2201-2207.
52 44 U.S.C. §2207.
53 44 U.S.C. §2201(2).

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CRS-14
or former President.”54 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 coequal branch of the federal government
— the so-called executive privilege.55 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 representatives acting on behalf of a former President.56 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 107th and 110th 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 turning over vice
presidential records to the National Archives at the end of the term.”57 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 all of his official records.58
2008-2009 Presidential Transition: National Security
Considerations and Options59
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
54 44 U.S.C. §2204(c)(2).
55 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 Kansas, 2002).
56 3 C.F.R. 2001 Comp., pp. 815-819.
57 Christopher Lee, “Lawsuit to Ask That Cheney’s Papers Be Made Public,” Washington
Post, Sept. 8, 2008, p. A4.
58 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.
59 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.

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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 administration. Whether an incident of national security significance60
occurs just before or soon after the presidential transition, the actions or inactions of
the Congress and the outgoing administration may have a long-lasting effect on the
new President’s ability to effectively safeguard U.S. interests.61
Possible Actions by Entities Wishing to
Disrupt the Presidential Transition Period
Threats to the 2008-2009 presidential election obviously exist with “dangers
associated with the transition emanating both from within the homeland and
internationally.”62 Some national security observers have expressed concern that a
terrorist group will attempt to take action against United States interests during the
presidential transition period.63 It is argued that enemies of the U.S. may see the
nation as physically and politically vulnerable and that disseminating threatening
propaganda or undertaking an incident of national security significance during the
election period would likely result in a change in the election results or future
policies. Statements or incidents may be undertaken with the desire to demonstrate
a group’s ability to reestablish its status as an entity to be feared,64 intimidate the
voting public, suggest perceived weaknesses in a given candidate’s national security
position, change the results of the election, or change future U.S. policies in a new
administration.
60 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.
61 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.
62 Robert Landers, “Dangers in Presidential Transitions,” Washington: Editorial Research
Reports, Oct. 21, 1988, pp. 528-529.
63 Erich Follath, “Osama bin Laden is Planning Something for the U.S. Election-Interview
of Steve Coll,” Speigel Online, Apr. 2, 2008, available at [http://www.spiegel.de/
international/world/0,1518,544921,00.html]. “I believe that he wants to influence America
this time. There is a threat of the terrorist attack on American soil that al-Qaida has long
warned of. Osama bin Laden is planning something for the U.S. election.”
64 Matt Korade, “New Report Tracks Relationship Between Al Qaeda and Jihadist Media,”
CQ Homeland Security, Apr. 4, 2008, available at [http://www.gwumc.edu/hspi/news
/cq44.htm]. In response to a question about al-Qaeda’s troubles in maintaining support for
its organization, panel members informing the report noted that the possible decline in
followers coupled with the upcoming presidential election could be a potent mix for a group
desperate to reassert its relevancy.

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Some national security observers speculate that, if an incident of national
security significance is to occur, enemies of the United States would prefer to take
action just prior to the presidential election date. However, such acts at anytime
during the presidential transition period could have desired and unintended effects
on the presidential election and resulting policies.65 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 with the desire to manipulate the
results of the election. 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.
Considerations and Options Unique to Each Phase
of the Presidential Transition Period
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.
Phases 1 and 2: Campaigning by Presidential Candidates to the
Day of Election66. Some national security observers see 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 have already voiced
concern about the upcoming election period, and noted a desire to provide oversight
and resources to support the change of administrations.67 Some suggest that, without
early and substantive congressional involvement in presidential transition activities,
foreign and domestic security risks may not be addressed in as full a manner as
possible.
65 For example, while the terrorist attacks of March 2004 did appear to have an affect 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.
66 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 parties.
67 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 [http://hsgac.senate.gov/public/index.cfm?FuseAction=
PressReleases.Detail&Affiliation=C&PressRelease_id=ba22da11-04b8-43c0-9158-f2f87
44b717e&Month=2&Year=2008], visited Oct. 10, 2008.

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The 110th Congress may consider asking the Administration to continue
providing
! 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 prospective new Administration senior security
officials.68
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 has increased the number of questions posed
to current national security leaders about plans to support the presidential transition
period and require more specificity with respect to current and future planning
efforts.69
Phase 3: Election Day. While the actual day of the presidential election may
be uneventful, some observers argue that legislative oversight of transition activities
of the current Administration taken to this point may ensure the incoming
Administration is as well prepared as possible. In enacting the Presidential Transition
Act of 1963, Congress provided the current Administration significant discretion in
deciding the level of support to be given to the incoming Administration. In
recognizing the potential risks that may be associated with a presidential transition,
the act noted the need for an orderly transfer of executive power.
68 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.Detail&HearingID=00174c24-3eef-47d1-bb2c-39c3d27
c26d3].)
69 “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, at [http://www.cq.com/display.do?dockey=/cqonline/prod/data/docs/html/
transcripts/congressional/110/congressionaltranscripts110-000002666499.html@commit
tees&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.

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CRS-18
The national interest requires that such transitions in the Office of the President
be accomplished so as to assure continuity in the faithful execution of the laws
and in the conduct of the affairs of the Federal Government, both domestic and
foreign. Any disruption occasioned by the transfer of the executive power could
produce results detrimental to the safety and well-being of the United States and
its people. Accordingly it is the intent of Congress that appropriate actions be
authorized and taken to avoid or minimize any disruption.70
Phase 4: Selection of a President-elect to Inauguration Day.
Traditionally, Congress is out of session during much of the eleven weeks that
comprise phase 4 of the transition period. It is unclear whether a “lame-duck” session
of the 110th Congress will be scheduled. Some have suggested that the current
financial disruption may call for congressional action or oversight prior to the
convening of a new Congress. Some security experts also contend that given the
current risks to U.S. national security interests, a special session of Congress may be
beneficial to ensuring the two Administrations are properly coordinating on national
security-related issues. Once a new Congress convenes and the new members are
sworn in, little time is available prior to the presidential inauguration to inquire about
past actions and recommend changes. A special session of Congress might be
considered soon after the election to ascertain what the outgoing and incoming
Administrations will do with respect to transition-related activities. If still in session
during the later stages of phase 4, Congress may choose to hold additional 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. Congress may
also wish to make itself available during phase 4 to address resource requests that
emanate from the two Administrations should an incident of national security
significance occur.
Phase 5: Presidential Inauguration to the Establishment of a New
National Security Team and Policies. 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 Williams of the Massachusetts Institute of Technology argues
that, “the coming transition to a new Administration and Congress opens a window
for reform of the organizational structures and processes that surround planning and
resource allocation for homeland (and national) security in the executive branch and
Congress.”71 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 shifting from campaigning to
70 Sec. 2 of P.L. 88-277; 3 U.S.C. §102 note.
71 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.

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CRS-19
governing and create problems for the Congress.”72 As noted by Mr. 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 environment.”73 In overseeing and supporting the new
Administration’s national security objectives, Congress has a number of activities it
might undertake.
Prioritize Hearings for Nominated Senior Executive Branch Leaders
Who Have Significant National Security Responsibilities. Congress might
assist the incoming Administration’s national security efforts by quickly considering
qualified key political appointees for confirmation.74 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 recommendation of the 9/11 Commission
Report of 2004,75
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 as
possible.
Consistent with recommendations contained in the 9/11 Commission report, the
Intelligence Reform and Terrorism Prevention Act of 200476 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 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
72 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.
73 Ibid.
74 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 activities.
75 U.S. National Commission on Terrorist Attacks Upon the United States, The 9/11
Commission Report (Washington: GPO, 2004), p. 422.
76 Sec. 7601(b) of P.L. 108-458.

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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 2010 budget;
! 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.
Personnel — Political to Career Conversions
(“Burrowing In”)77
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 excepted service.78 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.
77 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.
78 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 veterans preference.

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CRS-21
Generally, these appointees were selected noncompetitively and are serving in
such positions as Schedule C, noncareer SES, or limited tenure SES79 that involve
policy determinations or require a close and confidential relationship with the
department or agency head and other top officials. Many of the Schedule C
appointees receive salaries at the GS-12 through GS-15 pay levels.80 The noncareer
and limited tenure members of the SES receive salaries under the pay schedule for
senior executives that also covers the career SES.81 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 individuals in noncareer positions to “burrow
in.”82
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
79 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.
80 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.
81 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.
82 Christopher Lee, “Political Appointees “Burrowing In,” Washington Post, Oct. 5, 2007,
p. A19.

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government at a time when the desirability of creating “common ground” between
these staff to facilitate government performance has been emphasized.83
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 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 non-SES appointees.84
During the period June 1, 2008, through January 20, 2009, defined as the
Presidential Election Period, certain appointees are prohibited from receiving
financial awards.85 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
83 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 Lessons from
Experienced Appointees, 2nd ed. (Washington: IBM Center for the Business of Government,
Jan. 2005), pp. 34-44.
84 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.
85 5 U.S.C. §4508 and 5 C.F.R. §451.105.

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CRS-23
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 incumbent into the competitive service.86
To assist departments and agencies, OPM also publishes the Presidential
Transition Guide to Federal Human Resources Management every four years.87 The
current edition, released in June 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 selection process.88
86 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.
87 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].
88 U.S. Government Accountability Office, Personnel Practices; Conversions of Employees
(continued...)

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CRS-24
As part of its oversight of government operations, Congress also monitors
conversions. In the 110th 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 selecting and
removing United States attorneys.89 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 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.
88 (...continued)
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 RS20730,
Presidential Transitions and Administrative Actions, by L. Elaine Halchin, June 5, 2001,
available from CRS.
89 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 the Preparation For and Response to
Hurricane Katrina, 109th Cong., 2nd sess. (Washington: GPO, Feb. 15, 2006); U.S.
Congress, Senate Committee on Homeland Security and Governmental Affairs, Hurricane
Katrina: A Nation Still Unprepared. Special Report, 109th Cong., 2nd 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.

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CRS-25
Political Appointments into the Next Presidency
The installation of executive branch political appointees 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.
Appointment Authority for Officers of the United States
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 Courts of
Law, or in the Heads of Departments.90
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 such a position if it is vacant and the Senate is in recess.91 Such an
appointment, termed a recess appointment, expires at the end of the following session
of the Senate.92 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.
Tenure During a Transition for a Confirmed Appointee
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 removed by the President at any time for any reason (or no
90 Art. II, § 2, cl. 2.
91 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.”
92 Each Congress covers a two-year period, generally composed of two sessions.

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CRS-26
stated reason).93 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 for other good cause shown,”
be met.94 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 executive departments and agencies.95 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
may be protected from removal nonetheless, based on case law.96 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.
Tenure During a Transition for a Recess Appointee
Outgoing Presidents have often made recess appointments, during their final
months in office, to both kinds of positions described above. The potential tenure for
93 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).)
94 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 Affairs, Independent Counsel
Reauthorization Act of 1987, report to accompany S. 1293, 100th Cong., 1st sess., S.Rept.
100-123 (Washington: GPO, 1987), pp. 12-13.).
95 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).)
96 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.’”

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CRS-27
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 they were
appointed or the expiration of the recess appointment, whichever occurs earlier.97 A
President could, at the end of his presidency, use a recess appointment to bypass the
Senate and fill a fixed-term position 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.
Senate Pro Forma Sessions to Block Recess Appointments
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.
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 for pro forma sessions during the Thanksgiving holiday
to prevent recess appointments.”98 The Senate recessed later that day and pro forma
meetings99 were convened on November 20, 23, 27, and 29, with no business
97 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).
98 Sen. Harry Reid, “Recess Appointments,” remarks in the Senate, Congressional Record,
daily edition, vol. 153 (Nov. 16, 2007), p. S14609.
99 A pro forma session is a short meeting of the House or Senate during which it is
(continued...)

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CRS-28
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 making recess appointments.100 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 series beginning with
the convening of the second session.101 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 Senate recesses of a week or longer in duration.102 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 these
markets.”103 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 and conduct business.104
99 (...continued)
understood that no business will be conducted.
100 Sen. Harry Reid, “Order of Business,” remarks in the Senate, Congressional Record,
daily edition, vol. 153 (Dec. 19, 2007), p. S15980.
101 Sen. Harry Reid, “Order of Procedure,” remarks in the Senate, Congressional Record,
daily edition, vol. 153 (Dec. 19, 2007), p. S16069.
102 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 (Jun. 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.
103 Sen. Harry Reid, “The Economy,” remarks in the Senate, Congressional Record, daily
edition, vol. 154 (Sept. 17, 2008), p. S8907.
104 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. 510504.

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CRS-29
Submission of the President’s Budget
in Transition Years
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 information that addresses these questions.105
Is the Outgoing or Incoming President Required
to Submit the Budget?
The Budget and Accounting Act of 1921,106 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 obligated to submit a
budget.107
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 taken.
105 For additional information on this topic, see CRS Report RS20752, Submission of the
President’s Budget in Transition Years, by Robert Keith.
106 The 1921 act was P.L. 67-13 (June 10, 1921); 42 Stat. 20; 31 U.S.C. §1105.
107 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).

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CRS-30
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, Ford, Carter, and
Reagan.108 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 Budget (OMB) provided
considerable advance notice of the plan for FY2002.109
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 proposals.110
Transition Budgets in Recent Years: Timing and Form
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.
108 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.)
109 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].
110 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].

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CRS-31
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 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 proposals.
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 programmatic information.

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