To prevent a future transition mess, Congress should fix the law

The vast majority of ballots around the country have been counted, and Joe Biden has comfortably secured enough of them to win the presidency. He is — by any reasonable legal understanding of the term — the “apparent” winner. Why, then, is the Trump administration able to stall the transition process to new leadership?

The answer is simple: the law is too vague. It doesn’t place a timeline on when a sitting president’s administration must start helping a successor regime to take over. As a result, Trump appointees are able to drag their feet, making it far more difficult for President-elect Joe Biden and his team to prepare to lead the country.

Congress has been abundantly clear about the importance of an orderly transfer of presidential power. In the Presidential Transition Act of 1963, Congress declared that “any disruption occasioned by the transfer of the executive power could produce results detrimental to the safety and well-being of the United States and its people.”

The process is triggered when the head of the General Services Administration (GSA) — the government agency that facilitates the presidential transfer of power — ascertains the “apparent” winner following the general presidential election. The problem is that the law doesn’t specify how or when GSA must make that determination and carry out its important responsibilities to assist the incoming administration.

The delay and problems of the transition

For example, state election results are “official” only after they are certified by the states, and the deadline for certification is not until Dec. 8, which leaves a very narrow period for an effective transition. Given the massive size and scope of the U.S. government, every day is critical.

To compound the problem, the law is silent on how GSA should ascertaining the apparent winner. Can the agency make its call any time before certification by the states on Dec. 8, as it often has? Or does it need to wait for, say 80%, 90%, or all of the votes to be counted?

The legislation gives no guidance. And because the GSA lacks an official policy, we are left to rely on the goodwill of the agency’s leaders to kickstart a crucial Constitutional process.

Historically, the transition process commences when one candidate concedes, and the norm has generally been that gracious and patriotic losers concede when their teams are convinced that the election results leave no credible path to victory, thereby putting aside their political fury for the good of the country.

But Trump has flouted that tradition and the ethical norms of our republic, and now his appointees are standing in the way of a smooth transfer of power.

This isn’t the only time the law’s murkiness has been problematic. Following the disputed 2000 election, the GSA similarly refused to commence the transition process, in light of the Florida recount. At the time, then-GSA administrator David Barram offered conflicting justifications to an angry Congressional oversight panel, including his view that “in this unprecedented, incredibly close, and intensely contested election, with legal action being pursued by both sides, it is not apparent to me who the winner is.”

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This left the incoming Bush team too little time to prepare to lead the country, something that was later cited as a contributing factor in the government’s failure to prevent the 9/11 terrorist attacks.

Three ways to fix the transition problem

The problems we faced in 2000 have resurfaced in 2020, but they can be resolved by amending the act in three ways.

First, it is ridiculous that the act gives power to determine the “apparent winner” to a political appointee of the current administration, who has an obvious conflict of interest, pitting the incentive to protect the president’s longevity against his or her duty to the American people. Congress should amend the act to create a nonpartisan commission to make the determination, as law professor Todd Zywicki urged almost 20 years ago.

Second, Congress should require the commission to make its decision at the earliest reasonable time, including before official state certification when possible. In a landslide election, there is no reason to delay the process until certification by the states. In a close election, it might need to wait. But, given the clear policy and legislative directive of the act, the transition determination should happen as soon as the nonpartisan commission has identified whether objective criteria for determining the apparent winner have been met.

Third, whatever other factors the commission considers, including whether one side has conceded, at some point the math should be dispositive: the commission should be required to declare the likely winner — and then start the transition procedures — when the average state election count is 90% complete and one candidate is above the 270 electoral vote threshold.

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Calls for reform are not new. As the 9/11 Commission recommended years ago, the process must “be improved significantly so transitions can work more effectively and allow new officials to assume their new responsibilities as quickly as possible."

If a presidential transition is not completed smoothly and efficiently, it puts our country at great risk, and our current tribalized political culture only increases the odds of this happening.

It’s time to take the politics out of a process that should be nonpartisan. Too much is at stake to allow brutish power grabs and low political gamesmanship to interfere in a peaceful and orderly transition of executive power.

It’s up to Congress to fix this mess. And Americans should demand that they do.

Jim Walden is a former federal prosecutor for the Department of Justice and is the managing partner of Walden Macht & Haran. He sits on the Board of Citizen’s Union, one of the nation’s oldest good government groups. Follow him on Twitter: @JWaldenEsq

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This article originally appeared on USA TODAY: Presidential transitions: how the law needs to be clarified