Transition Administration

78 Pages Posted: 3 Jun 2021 Last revised: 6 Jun 2021

See all articles by Katherine Shaw

Katherine Shaw

Yeshiva University - Benjamin N. Cardozo School of Law

Michael Herz

Yeshiva University - Benjamin N. Cardozo School of Law

Date Written: June 2, 2021

Abstract

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 launching a concerted effort to overturn the election’s outcome—in state and federal courts, state legislatures, the offices of state and local election officials, and finally in 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.

Less dramatically, the President’s rejection of the election’s outcome led to delay and obstruction of the Biden transition team. Yet 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. The president-elect appears in the provisions governing election, but is absent from the provisions regarding governance. Article II vests executive power in “a president,” and the 20th Amendment creates an on-off switch for the passage of power from one president to the next. 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. Appro-priately, 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 power, authority, and obligation. This Article seeks to address those questions. As we show, the scaffolding of law and 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 therefore considers a number of possible statutory reforms, including to the problem 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 post-election support.

Keywords: President, presidency, president-elect, transition, election, transfer of power, presidential administration

Suggested Citation

Shaw, Katherine and Herz, Michael Eric, Transition Administration (June 2, 2021). Minnesota Law Review, Vol. 106, 2021, Cardozo Legal Studies Research Paper No. 646, Available at SSRN: https://ssrn.com/abstract=3858986 or http://dx.doi.org/10.2139/ssrn.3858986

Katherine Shaw (Contact Author)

Yeshiva University - Benjamin N. Cardozo School of Law ( email )

55 Fifth Ave.
New York, NY 10003
United States

Michael Eric Herz

Yeshiva University - Benjamin N. Cardozo School of Law ( email )

55 Fifth Avenue
New York, NY 10003
United States
646-592-6444 (Phone)

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