//  2/26/19  //  Commentary

As the 2020 Democratic presidential contenders begin to officially launch their campaigns, it’s time to start thinking about the presidential transition again—only this time, it’s Donald Trump’s team in the White House. Given how things went in 2016, there’s plenty of reason to worry that the transition will go awry if it’s not planned carefully. At the same time, Congress is considering several legislative proposals to modify the transition process; many of these efforts are well-intentioned, but a number of them risk imposing unjustified burdens.

The first chapter of Michael Lewis’s book, The Fifth Risk, begins by describing the scene at the U.S. Department of Energy in the days after the 2016 presidential election: a building full of federal employees dutifully prepared to brief the new administration’s transition team members on the challenges they would face leading the federal government. Yet, day after day, no one showed up. Weeks passed before the incoming administration established lines of communication of any kind with the department, and when members of the transition team did show up, they appeared largely disinterested in what the career officials had to say. Similar scenes played out across many of the departments and agencies that constitute the federal government.

This disconnect was in large part the result of a chaotic Trump transition effort that saw Chris Christie, the transition chairman, ousted immediately after the election. But the extensive efforts to prepare the new administration didn’t just happen spontaneously. Rather, they were the result of 1) the Obama Administration’s commitment to pay forward its relatively positive experience with the outgoing Bush Administration in 2008–09 and ensure as smooth a handoff as possible to the forty-fifth president; and 2) a set of requirements mandated by a 2016 statute (Pub. L. No. 114-136) that for the first time codified steps for an outgoing administration to take to prepare for its successor.

The basic framework for the modern presidential transition was established in 1964 with the enactment of the Presidential Transition Act of 1963 (PTA), Pub. L. No. 88-277. The PTA authorized the General Services Administration (GSA) to provide funding and a variety of services, including office space and communications infrastructure, to the president-elect and his or her transition team in the critical months between the election and inauguration. Before this point, transitions were handled in an entirely ad hoc manor, with political party organizations often providing the bulk of the funding for transition expenses. The events of September 11 raised the stakes for transitions. The 9/11 Commission made several recommendations to improve the transition process to shore up potential national-security vulnerabilities and Congress responded. The Intelligence Reform and Terrorism Prevention Act of 2004 (IRTPA), Pub. L. No. 108-458, included a provision facilitating expedited pre-election security clearances for prospective transition team members and administration officials who have need to access classified information.

Six years later, the Pre-Election Presidential Transition Act of 2010, Pub. L. No. 111-283—which recognized that the approximately seventy days between election and inauguration was insufficient to adequately prepare—lengthened the transition-support timeline, providing the major-party nominees access to federal transition resources after the nominating conventions, rather than waiting for the results of the general election. Mitt Romney’s team was the first to take advantage of this infrastructure in 2012, building an operation of hundreds of staffers that had begun extensive planning for the Romney Administration that never came to be. (The Romney Readiness Project, as the transition team was styled, would later document its experience in a book.)

Most recently, the 2016 act empowers a senior career official at GSA to be designated as Federal Transition Coordinator, charged with coordinating transition planning across all agencies and ensuring they comply with all statutory requirements related to transition planning and reporting; requires all agencies to designate a senior career official to oversee transition preparations; and establishes a pair of interagency coordinating bodies, including a permanent Agency Transition Directors Council that is required to meet annually. A variety of deadlines kick in during an election year, including requirements to stand up a White House Transition Coordinating Council six months prior to the election; to submit status reports to Congress on transition-related preparations six and three months prior; and to sign a memorandum of understanding (MOU) with the incoming transition teams by November 1 to govern the use of federal resources.

It’s difficult for even the most conscientious administration to prepare wholeheartedly for its successor—especially in the first term, when any potential handover of power would mean losing the upcoming election. This is precisely why Congress enshrined these required preparations in law. Given the Trump Administration’s haphazard approach to the transition on the incoming side in 2016 it is imperative for outside observers, like Congress, to ensure that they undertake the necessary steps on the (potentially) outgoing side in 2020.

Congress might also consider additional statutory changes to improve the process. The transition team and inaugural committee are both typically 501(c)(4) nonprofit entities that are formed, raise and spend tens of millions of dollars, and then disappear, all in the span of a few months. Hundreds of people become engaged in shaping a new administration in its formative stages with relatively little transparency. As the recent subpoenas of the Trump inaugural committee by prosecutors in the Southern District of New York make clear, this creates a situation potentially rife for abuse. The Senate Homeland Security and Governmental Affairs Committee recently advanced bipartisan legislation that would, among other things, require the transition teams to develop and implement an ethics plan to govern the roles of transition team members who may be registered lobbyists or foreign agents, or who have potential conflicts of interest.

Lawmakers should be mindful of unintended consequences, however, in addressing these statutory gaps. A bill recently introduced by Senator Warren would similarly require transition teams to adopt an ethics plan but would also require them to make public within ten days the names of any officials who have been submitted under the IRTPA’s expedited security clearance process. While the additional transparency would be useful, the end result may be to discourage transition teams from taking advantage of the expedited process altogether, which was intended to help ensure that key national security officials are ready to take office on day one.  

Legislators are also paying attention to the transparency of the funding for the transition teams and inaugural committee. Senator Masto, for example, introduced legislation that would require the inaugural committee to disclose the identity of every disbursement recipient of over $200 and require that any funds remaining after ninety days be donated to a 501(c)(3) charity. The transition team and inaugural committee are currently subject to some contribution limits and disclosure requirements but neither is as comprehensive as the rules governing campaigns. While transition teams, for example, must report all contributions to GSA and the Government Accountability Office, and may not accept more than $5,000 from a single person or entity, unlike campaigns, there is no bar on accepting contributions from corporations or foreign nationals. 3 U.S.C. § 102 note, sec. 6. Inaugural committees must report contributions over $200 to the FEC and may not accept contributions from foreign nationals but are not subject to any contribution dollar-amount limits and can accept corporate contributions. 36 U.S.C. § 510. It may make more sense to simply treat these entities like presidential campaigns. The same anticorruption and appearance-of-corruption interests should support contribution limits in this context. Even though the transition and inaugural entities exist for only a short period, they solicit funds at a time when the contours of the new administration and its priorities are first being shaped.

Like an object in the rearview mirror, the 2020 election is closer than it may appear. The last few years have revealed there are still flaws in the transition process that Congress can address, both through new legislation and continued oversight. It’s time to start thinking now about how to ensure any 2020 transition is an improvement on 2016.

The Affordable Care Act Does Not Have An Inseverability Clause

11/5/20  //  In-Depth Analysis

Contrary to challengers’ claim, Congress nowhere directed the Supreme Court to strike down the entire ACA if the individual mandate is invalidated. Congress knows how to write an inseverability directive, and didn’t do it here. That, combined with Congress’s clear actions leaving the ACA intact and the settled, strong presumption in favor of severability, make this an easy case for a Court that is proud of its textualism.

Abbe R. Gluck

Yale Law School

The Real Problem with Seila

8/24/20  //  In-Depth Analysis

Seila Law LLC v. Consumer Financial Protection Bureau that tenure protection for the Director of the Consumer Financial Protection Bureau is unconstitutional. The decision’s reasoning may be more important—and worrisome—than the holding itself.

Zachary Price

U.C. Hastings College of the Law

Roberts’ Rules: How the Chief Justice Could Rein in Police Abuse of Power 

8/19/20  //  In-Depth Analysis

A theme of Chief Justice John Roberts’ opinions this past term is that courts should not employ open-ended balancing tests to protect fundamental constitutional rights. Yet there is one area of the Supreme Court’s constitutional jurisprudence that is rife with such amorphous balancing tests: policing. It is long past time for the Court to revisit this area of law.