Debate Points

What does the law say about a Presidential Transition?

With the presidential election still in limbo, the official transition which normally would have started by now is being contested.

A Peaceful Transition of Power

After a tightly contested general election, the battle for the White House continues across party lines. Joe Biden has been declared President-elect by the media and over 70M Americans. President Donald Trump has not conceded defeat and alongside his legal team and another 70M Americans, believes that he should still be the winner.

That means that the official transition to a new President, which is presumed to be required as of now, has not actually started. Why is this transition so important? What does the law say about the process and when it should start?

We’re hoping to give you an objective view of the way it’s supposed to work in this piece, the first of our Debate Points series.

What is the transition process?

In order to facilitate the orderly transfer of executive power from the sitting President, the President-elect and his/her team are provided with a set of services to help them get up and running quickly. These services and facilities include consultations and briefings from various experts, compensation for members of their team, office space and payments for expenses. The transition process can extend for up to 60-days after inauguration.

The full details are documented in the Presidential Transition Act of 1963.

(1) to be mindful of problems occasioned by transitions in the office of President, (2) to take appropriate lawful steps to avoid or minimize disruptions that might be occasioned by the transfer of the executive power, and (3) otherwise to promote orderly transitions in the office of President.

Aside from all the rules and regulations, the spirit of the law is to do whatever makes sense to prepare a brand-new administration to do the job. After all, the country depends on it.

When does the transition start?

Based on our interpretation, the matter of how someone becomes the President-elect (or the “apparent successful candidate”) is not very clear. The election process is far from over so depending on where you sit, neither candidate has actually won until:

  1. The Media has called the general election (done)
  2. All states have certified their results after resolving any conflicts by December 8
  3. The Electoral College has voted on December 14
  4. Congress has counted the Electoral Votes and declared a winner on January 6

In recent election cycles where there was a new incoming administration, the transition process kicked off a few days (or even hours) after the general election was called. The last time there was a significant delay was after the tightly contested race in 2000 when the decision between George W. Bush and Al Gore came down to a recount in Florida that wasn’t concluded until well into December.

The delayed presidential transition in 2000 was identified later by the 9/11 Commission as a potential issue of national security. The commission made a series of proposals that have since been enacted into law by the Intelligence Reform and Terrorism Protection Act of 2004. These laws give the the incoming administration access to national security briefings and encourage them to start their nominations for national security positions “as soon as possible” after the general election.

Who decides?

The person responsible for delivering the declaration of “ascertainment”, which launches the Presidential transition, is the administrator who serves as the head of the Federal General Services Administration (GSA).

In addition to their normal day job, this person is effectively signing a check for millions of dollars to the President-elect and his/her team to cover all the transition-related expenses. They are also serving as the primary gatekeeper for a lot of important information that is about to start flowing to a few thousand new people.

Though an appointee of President Trump and the current administration, Emily Murphy, who currently heads the GSA, has a difficult decision to make. The decision should not be politically driven, should follow the law and should be delivered in the best interests of the country.

As of the time of this writing, an ascertainment has not been made. Given the gravity of the situation --- the implications for public health and national security, the sheer amount of money being signed off and a heated political climate to boot, it’s certainly not an easy call. Unfortunately, the established rules and laws here have left so much open to interpretation that it is hard to gauge what’s right.

What Happens Next?

Well, maybe nothing for a while….or maybe something tomorrow. We will all have to wait and see.

At SimpleTerms, we build quick, easy-to-read contract summaries, highlights and tips to help consumers understand the agreements they enter into. We recently put some of the relevant contracts that the President “signs” through our system. This included Article 2 of the Constitution, the Bill of Rights and Title 3 of the U.S. Code. Check out The President’s Contract in SimpleTerms!

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