The Transition Is Already Happening (And It’s Going Fine So Far)Roundup
tags: 2020 Election, presidential transition, Civil service
Kate Shaw is Professor at the Benjamin N. Cardozo School of Law.
Michael Eric Herz is Arthur Kaplan Professor at the Benjamin N. Cardozo School of Law.
Sometime in early to mid-November, if October polling holds and the infrastructure of our democracy basically functions, Joe Biden is likely to be declared the winner of the 2020 presidential election. At that point, he will have just more than two months to prepare to take over the leadership of a country still in the grips of a once-in-a-century pandemic, with more than 12 million Americans unemployed, tens of millions of children out of school, and COVID-19 deaths barreling toward 300,000.
Transitions can be challenging even under the best circumstances. And President Donald Trump, to say the least, may not be psychologically or temperamentally predisposed to a thoughtful, well-planned transition. Even back when he was the incoming president, his on-ramp to the presidency was extraordinarily haphazard, disorganized, and incomplete. Add in his petulance and expected fury at the outcome, and there is surely reason to fear the havoc the president and his team could wreak on their way to the exits.
How worried should Americans be that the outgoing administration might attempt to disrupt or cripple its successor by sabotaging the transition? Well, somewhat, undeniably. There is certainly no reason to expect President Trump to approach a President-elect Biden in anything like the spirit of cooperation and goodwill that has generally characterized presidential departures in the modern era. (Consider the letter that outgoing President George H. W. Bush left in the Oval Office for incoming President Bill Clinton, who had just defeated him at the ballot box: “I’m not a very good one to give advice; but just don’t let the critics discourage you or push you off course. You will be our President when you read this note. I wish you well. I wish your family well. Your success now is our country’s success. I am rooting hard for you.”) Nor should anyone expect Trump to adhere to the bipartisan conventions of presidential stewardship of modern transitions. Further, by litigating the election outcome and delaying his concession, the president might postpone the point at which Biden is acknowledged the victor, thus delaying funding and many transition-related activities, as happened in 2000.
But there’s reason to have faith, too. When it comes to the transition itself—not the niceties that surround it—a little-known body of law and practice places important limitations on the amount of damage even a determined outgoing president can do. The law vests significant authority for managing transitions in career officials—that is, officials whose employment does not turn on or change with the occupant of the White House—who owe higher duties to the transition or incoming administration than they do to the outgoing administration. This means that however resolved Trump might be to thwart a smooth transition—or, short of that, however lackadaisical he might be in managing one—much of the process lies entirely outside his control.
For much of American history, presidential transitions were casual affairs, typified by a long post-campaign vacation for the winning candidate and little organized communication or cooperation between incoming and outgoing administrations. That shifted during the first half of the 20th century, but no law of presidential transitions existed until 1964. That year, Congress passed the Presidential Transition Act (PTA), which is central to how modern transitions are run. This law—and its many amendments, the most recent of which was enacted just this year—provides millions of dollars in funding for transition operations and requires the government to support potential incoming administrations with information, expertise, and direct assistance.
Strikingly, Congress placed almost all the responsibility for managing the transition in the hands of career employees. This means that when it comes to matters of transition, the president and those immediately surrounding him are less important than they seem: The real action lies with career staff in the agencies.
It’s worth examining a few specifics, both to understand the basic infrastructure of transition and to learn what we should be looking for as warning signs that things are about to go off the rails.
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