By Michael Herz & Katherine Shaw. Full Text.
The period from November 3, 2020 to January 20, 2021, was unlike any presidential transition in our history. President Donald Trump refused to accept his ballot-box defeat, instead battling to overturn the election’s outcome. This dramatic public campaign was waged in state and federal courts, state legislatures, the offices of state and local election officials, the Department of Justice, and finally the halls of Congress, where on January 6, 2021, a mob incited by the President stormed the Capitol with the explicit goal of preventing the final counting of electoral votes for Joe Biden. These efforts had more mundane and less visible aspects as well. Not least, the President’s rejection of the election’s outcome led to delay and obstruction of the Biden transition team.
Under the circumstances, the transition was remarkably successful. But the avoided threat to the law and norms of presidential transitions—constitutional, statutory, and conventional—calls for a taking of stock. What mechanisms enabled even moderate success in such circumstances, and what changes can be made to help ensure smoother sailing in the future?
Even in ordinary times, when unsuccessful presidential candidates concede defeat, congratulate victorious rivals, and facilitate the transfer of power, presidential transitions can be fraught and uncertain affairs. It is a truism that “the country has only one President at a time,” and reading the Constitution seems to confirm that understanding. But while the Constitution largely ignores the President-elect, statutes and conventions do not, establishing a regime in which the President-elect is not simply a private citizen waiting in the wings. To an ever-increasing extent, the President-elect, Vice President elect, and the sweeping transition apparatus are intertwined with and inseparable from the operations of the federal government.
The complex status of transitions raises a number of questions regarding authority and obligation. This Article seeks to address those questions. As we show, the scaffolding of law and, at least as important, practice that surrounds transitions goes far to make the peaceful and effective transfer of power possible. A central challenge is avoiding the risk that profound political and ideological hostilities will derail the process; the current regime does so by ensuring federal support for the transition operation, by requiring cooperation on the part of the outgoing administration, and, perhaps most importantly, by placing primary responsibility in career agency employees rather than political appointees. In the modern era, this regime has been largely successful. But it fails to go far enough in relying on career officials, and in some key respects, does not center those officials as fully as it should. The Article concludes with a discussion of a number of possible statutory reforms, including to the defect that received the most attention in 2020: reliance on the Administrator of the General Services Administration to “ascertain” the apparent victor in order to trigger the provision of post-election resources.