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In Defense of Presidential Transitions

By Jack M. Balkin

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. 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.

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.

Full post as published by Balkinization on November 22, 2008 (boomark / email).