Balkinization: In Defense of Presidential Transitions

In Defense of Presidential Transitions

Sandy Levinson has frequently criticized the gap between the election and inauguration as a poor example of constitutional design. Recently Paul Krugman decried the fact that Obama can't start working on the economic crisis immediately.

I think the constitutional transition between election and inauguration makes good sense. I also think that if there is a problem with the length of the transition the solution does not require a constitutional amendment; the President and Congress can work around it through ordinary legislation.

In the original 1787 constitution, the President did not take office until the March following the election. In the 20th amendment this was changed to January. Perhaps the original reason for the gap was partly due to the difficulty of travel conditions, but this has little relevance today.

Ironically, a transition period makes more sense today than it did in 1787 because the federal government-- and in particular the Executive Branch-- has gotten much larger. Newly elected presidents must appoint a very large number of people in order to begin the work of governing. The Clinton Administration famously took its time filling key positions, particularly White House staff and advisors, and this probably affected its first term performance. The Obama team has (wisely I think) focused first on filling key White House positions and then moved on to cabinet slots. For all we can tell the Obama transition is quite efficient, but even an efficient process takes lots of time when there are so many positions to fill.

Moreover, in today's world it is necessary to vet each and every candidate much more thoroughly than before. This also takes enormous time and effort. Indeed, one needs to put together a significant apparatus just to stage a Presidential transition. With the size of the executive branch, and the need to vet everyone thoroughly, two and a half months may be cutting it close.

If anything is to blame for this, it is not the hard wired Constitution, but rather (a) the growth of the administrative state (including the growth of the defense and intelligence services) and (b) the increasing power of media to derail candidacies that are insufficiently vetted.

One might object that if transition is so important the President-elect can perform some of the key choices during the campaign. But this is not realistically possible in many cases. First, if the election is at all close, the candidate and his team will have to spend all their time just getting elected. Many if not most Presidential elections are not blowouts. Presidential candidates do spend time on putting together transition teams (Obama more than McCain in the last election, although this is understandable because McCain was behind). However, a transition team is much easier to assemble than an Administration. And vetting White House staff and cabinet level positions while simultaneously conducting a no holds barred presidential campaign is difficult if not impossible.

All this may be true, you may say, but isn't there a deep problem with the new President forbidden from taking action when a potential crisis might occur? Perhaps. But if there is a problem, there is nothing in the Constitution that prevents a new President from taking action.

Political reasons may cause Presidents-elect from publicly inserting themselves into everyday decision making until they officially take office. Herbert Hoover begged Franklin Roosevelt to join him in declaring a bank holiday during Hoover's last days in office. Roosevelt refused, and promptly called one shortly after he was inaugurated. The reasons were not constitutional but political. Roosevelt didn't want to be associated with Hoover and Hoover's policies, especially if the bank holiday failed. And if the bank holiday was a success, Roosevelt wanted all the credit. When there is a change of parties, new Presidents may be particularly interested in freeing themselves from the perceived influence of the previous Administration. Hence, the new President may want to influence matters behind the scenes (and nothing in the Constitution stops him from making such suggestions) but not take public responsibility for actions and decisions made during the current President's watch. Again, the problem is not the Constitution but political considerations.

Finally, if the country thinks it necessary to hand off executive authority to the President-elect during a transition-- for example, because of a crisis-- there are plenty of legislative work arounds. [Through the normal advice and consent process the sitting President and] Congress can appoint the President-elect to the President's Cabinet or make him a high White House official. [this is to clear up a point in the original posting: I'm not advocating anything different from the standard Presidential nomination plus advice and consent by the Senate.] Indeed, the President can appoint him to a White House position that does not even require confirmation. In either case, the President-elect can be clothed with the power of the Executive Branch and, with the cooperation of the existing President, make all important decisions necessary to deal with the crisis. [Finally, the President and Congress can even use the 25th Amendment; the sitting Vice-President resigns, replaced by the President-elect, who then makes key decisions, as our current Vice-President has during the Bush Administration.]

It is true that in these cases the President elect will be working with holdovers from the existing Administration. But if you want him to have a full team, well, that's what a transition period is for.

Posted 7:58 AM by JB [link]

Comments:

The President and Vice President could also resign and allow the President-Elect to take office immediately.

# posted by

rmenglish@gmail.com : 11:31 AM

Congress can appoint the President-elect to the President's Cabinet or make him a high White House official. Indeed, the President can appoint him to a White House position that does not even require confirmation. In either case, the President-elect can be clothed with the power of the Executive Branch and, with the cooperation of the existing President, make all important decisions necessary to deal with the crisis.

This doesn't strike me as very plausible. Congress can't appoint anyone to any position. Only the outgoing president can do that. I don't see any reasonable chance that this would happen.

I guess I'd be more persuaded by the claimed need for time to vet the new team if it weren't for the fact that in other countries the transition takes place much more quickly. What that suggests is that changing the inauguration date will have a cascade effect, but that a quick transition is entirely plausible once those additional changes have been made.

Lastly, I think the vetting process is overplayed, at least for cabinet officials. Most people who end up in a cabinet position are well-known politically and have already been vetted. We don't really need to "vet" Hilary Clinton, after all, nor did we need to "vet" Colin Powell. As for those in lower level positions, I can't see that it would have intefered that much with the Obama campaign to vet, say, Prof. Lederman during the campaign.

# posted by

Mark Field : 11:33 AM

I agree with pretty much everything you said, except “Congress can appoint the President-elect to the President's Cabinet or make him a high White House official,” which I don’t understand.

I would also note that the length of the transition is within Congress’s control, as it sets the time the presidential election (and the day on which the electoral college votes). Even if the transition period were dramatically shortened, however, I am not sure that this would obviate Professor Levinson’s concerns. When there is only a short time before the inauguration of a new president, the outgoing president will be viewed as a lame duck, even if the successor has not yet been chosen.

# posted by

mls : 12:06 PM

How would the president and vice president resigning allow thing to move faster? You'd just be left with Nancy Pelosi as president. I don't think the president and vice president elect have any legal position in the line of succession.

# posted by

Anonymous : 12:14 PM

This post has more to do with regime change wish-i-ness than academic truth-i-ness.

You are forgiven.

# posted by

Tantallonblog : 12:18 PM

And yet we have the example of most parliamentary systems, in which the transition is essentially immediate. They seem to manage OK.

# posted by

jlundell : 12:37 PM

And yet we have the example of most parliamentary systems, in which the transition is essentially immediate. They seem to manage OK.

In the British parliamentary system, the opposition creates a “shadow government”, an alternate Cabinet which is ready to go should the opposition party take power. I think that’s the major reason the transition can take place immediately.

Re: Bush and Cheney resigning; the steps would be Cheney resigns, Bush nominates Obama as Vice-President, Congress confirms Obama, Bush resigns. I can’t imagine either Bush or Cheney being that cooperative.

One thing that we could definitely do to ease the transition, whether the time period is fixed or not, is to fix our voting process. Replace all machines that are not accurate enough or do not leave a paper trail. Eliminate the Electoral College. With accurate elections by popular vote, very few Presidential elections would be so close that the winner would would not be known the next day.

# posted by

Hank Gillette : 3:09 PM

WRT parliamentary transitions, certainly there are profound and interesting structural differences. But it seems to me that the prospect of a quick transition drives the solution(s). Or, conversely, the time required to build a candidate expands to fill (and more) the time available.

# posted by

jlundell : 3:46 PM

I see some flaws in your arguments. First and what I view as a fundamental flaw to your favoring a delay in the transfer of power is that even if interim individuals have to be chosen to head certain federal bodies while more thorough vetting is on going, those interim choices will be far closer to expressing the will of the electorate than the lame duck choices that are still effecting government. That is clearly obvious right now. I think I could do a better job that Pat .. sorry .. Hank Paulson, if only because I have what I think are the best interests of the nation in mind rather than personal friends to look out for (at the expense of the best interests of the nation). Though I may lack any technical knowledge on the subject of national finances I'd get insights from sources that did. Sure it's the stupid Bush will get smart advisors argument, but the weakness of that argument wasn't merely the stupidity of the main subject, but the malfeasance.

To simplify, though the interim replacements may not be the most expert, they certainly are far closer to the election mandate than the losers. Losers screwing the people shouldn't be considered more valuable. Certainly, there's no guarantee that they are more expert, as the Bush group so clearly exemplifies.

Another flaw is your consideration of the vetting needed for governmental leaders. You wrote:

"(b) the increasing power of media to derail candidacies that are insufficiently vetted."

I'll ignore the flaw of considering media vetting as in any way related to the actual suitability of someone for a position. If anything the media has shown itself to focus on trivialities far more than matters of substance. But then I was going to ignore that aspect.

I think if candidates indicated far earlier, as in - during the campaign, who they would have to lead the particular branches the voters would have a much better insight into the direction the prospective candidate would take the nation. One of the aspects of Obama that I found disconcerting was the vagueness of his rhetoric. "Hope dreams" I've described it as elsewhere (possibly here too ??). At this point many on the left are disappointed with the choices indicated. Perhaps Obama's support would not have been as strong if he were forced to reveal his priorities and leanings. Perhaps he'd have made different choices if he knew it might affect his support. In any case it's an obfuscation in the electoral process that would be better removed. The result would probably be more representative of the sentiments of the people rather than insiders that wish to hide their influence.

P.S. Your suggestion of a lame duck administration voluntarily passing power to the "-elect" administration is fantasy in that it ignores a group such as Bush's which in my view has been malevolent in its attitude towards what's best for the nation. Many there may in fact prefer a deep depression - for the whiners. If the existing government was acting with the will of the electorate they would have been elected or re-elected. Certainly McCain would likely have had much more influence in a lame duck Bush government than Obama has. As Levinson and a commenter here have suggested, the Bush group could resign in an ordered fashion and appoint the Obama government as replacements. That's not even worthy of a snicker yet it's effectively part of your presentation. A very weak argument.

# posted by

Amos Anan : 6:59 PM

How would resignations allow a transition to occur? The VP resigns, the President nominates the President-Elect as VP, and the Senate confirms him. Then the President resigns, and the VP becomes President. If the parties involved agreed, this could all happen very quickly.

# posted by

rmenglish@gmail.com : 11:26 PM

"One thing that we could definitely do to ease the transition, whether the time period is fixed or not, is to fix our voting process. Replace all machines that are not accurate enough or do not leave a paper trail. Eliminate the Electoral College. With accurate elections by popular vote, very few Presidential elections would be so close that the winner would would not be known the next day."

Yeah! Let's chuck the Constitution and this representative democracy crap! While we're at it we should just count the votes in the northeast and California and nowhere else. Let's can the BCS and have a college football playoff instead.

Get real. If Obama wanted to start fixing the economy before the Bush term ends, he would call another press conference and say something positive.

The transition period is working. In the case of elections where the incumbant is not term-limited, should the President be spending the time up to the election preparing to turn the reins over on November 5?

No need to change the rules every time we think our Party can gain an advantage. Let's let our system work...like it has been for the last 200 years.

# posted by

asgh : 10:26 PM

like it has been for the last 200 years.

More like 150.

# posted by

rmenglish@gmail.com : 11:04 PM

To an outside observer, the transition process is essential in your system if for no other reason that so many appointments required for policy input have to be filled.

Where there is, as in most European democracies, a strong and apolitical career civil service, and were the number of presidential appointment to be limited to the equivalent number required for a British ministry - say 250 names rather than counting in thousands, then the transition could be shortened. This was discussed on a previous thread and it appears that civil service reform requires no constitutional amendment, merely legislation.

The other matter which seems to have reached absurd proportions is the vetting process for incomers. Not only does the process go to absurd lengths for the applicants under consideration, there is the repetition for those requiring senate confirmation with a multiplicity of forms requiring the same information in different format. At the very least it ought to be possible to devise a single form.

But, apart from the sheer numbers, the single biggest obstacle is that posed by the complete separation of powers. In a parliamentary democracy, the candidates for ministerial office will largely come from the chambers, their records and financial standing will be on the register of members' interests, they will have been a "government in waiting" throughout the previous administration. The leading players will have been receiving classified information while in opposition. That is why a transition in a parliamentary democracy can take place in days and if need be in minutes.

I really do not see how the US transition, even if the number of appointments were reduced to 250, could take less than a couple of months. The plain fact is that the US Constitution was devised for another age when news from abroad could take weeks to reach the USA and where the impact of the Federal Government on the daily life of citizens was much less than it is now.

So the conclusion must be that there is a need for a new constitutional convention or for the congress to put proposals for amendments to the states - but within government there are always more urgent things to do.

Two good UK parallels are House of Lords reform where it has been recognised since at least 1911 that reform is needed but the process is still incomplete and the disestablishment of the Church of England which has been in issue since the Act of Settlement of 1701. Thus far the only real progress on that front in England has been the coining of the expression "Antidisestablishmentarianism" which, with its 28 letters and 12 syallables, is generally held to be the longest word in common usage in the English language.

So in the way of matters constitutional there is still hope that the USA could if it wished achieve reform faster than the UK is wont to do.

# posted by

Mourad : 5:05 AM

"Anticonstitutionalamendmentism" has 30 letters, so let's open a Guinness.

# posted by

Shag from Brookline : 8:47 AM

Yeah! Let's chuck the Constitution and this representative democracy crap! While we're at it we should just count the votes in the northeast and California and nowhere else. Let's can the BCS and have a college football playoff instead.

This seems rather overwrought for a suggestion to use Scantron ballots.

Now, he did add the abolition of the EC, but that's not all that controversial, and it doesn't seem to have much to do with representative democracy.

# posted by

Mark Field : 10:52 AM

L.S.,

I'm going to have to echo Mourad's remark: the problem here is one of numbers. Over here in The Netherlands, a smaller country still, the only people who get replaced after an election are the cabinet ministers and their undersecretaries. About 50 people, in all. Below them in the hierarchy are only civil servants, who stay on.

# posted by

martinned : 11:57 AM

There is a magnet in your heart that will attract true friends. That magnet is unselfishness, thinking of others first; when you learn to live for others, they will live for you.
Agen Judi Online Terpercaya

# posted by

Unknown : 2:08 PM