God willing, we will know who our next president is sometime late Tuesday night and it will be Joe Biden. It’s of course possible that Donald Trump may refuse to concede and try to get the 6–3 Republican majority on the Supreme Court to overturn the election results. But I’m going to ignore that possibility for now and look at the law, history, and practice of presidential transitions. Even under conditions far less trying than those Biden may face on Wednesday, transitions are difficult, especially when they involve the transfer of power from one party to another. There are many ways that things can go wrong even with solid advance planning and goodwill on the part of the departing administration.
In nations with parliamentary systems, there is no transition to speak of from one government to another. One day the government in power is gone, and the next day there is another one. For this reason, systems were developed to make the transition as fast, easy, and frictionless as possible. First, the number of political appointees in those governments is much smaller than here, with the career civil service, especially a permanent secretary, having considerable power to run Cabinet departments regardless of the party in power. This provides substantial continuity over time.
Second, political parties out of power are better prepared to take over quickly by having shadow Cabinets. Usually, they will have an official spokesman for each department who is very familiar with the issues within its purview, ready to become the head of that agency at a moment’s notice. When a new government is formed, these shadow ministers may not always get the top job, but they usually end up in a policymaking role.
For reasons I have never understood, American political parties don’t do this. I have been told by lawyers that it is illegal to designate a Cabinet secretary in advance of an election because it can be construed as bribing someone for their vote. I think this is nonsense, but it provides a fig leaf for candidates to avoid doing what no potential president wants to do—having their hands tied in advance of taking office by having Cabinet secretaries not of their own choosing imposed upon them, recruited by party leaders.
Choosing a Cabinet is, of course, the most important job for any president-elect to do. The Constitution is silent on the issue of a Cabinet, and its creation by George Washington was one of his most important contributions to the American system of government. But whereas parliamentary systems typically stock their Cabinets with many members of parliament, the Constitution explicitly prohibits this practice. A member of Congress may not simultaneously serve as a Cabinet secretary.
This deprives an incoming president of the most logical source for staff who are politically skilled and familiar with the issues, and whose experience and loyalty can be counted on. Of course, members of Congress can and do join the administration, but at the cost of resigning their seats. This can be very costly in political terms, especially in the case of senators from states where a governor from the other party would name their replacement.
It is generally believed that this is a particular problem for Senator Elizabeth Warren of Massachusetts, who is thought to covet the job of Treasury Secretary. Unfortunately for her, a Republican would name her successor until a special election. Given that Democrats are likely to have no votes to spare in the Senate, this constraint effectively eliminates Warren from serving in Biden’s Cabinet.
Another problem is that Cabinet and subcabinet positions require Senate confirmation. This demands an enormous amount of paperwork by appointees and an extensive background check by the FBI, as well as close examination by Senate committees and the media. This process has become more difficult as social media has vastly broadened the potential roadblocks to confirmation. It is a rare political figure these days who doesn’t have a long trail of Facebook and Twitter posts, YouTube videos and the like, from which embarrassing material might be mined for the purpose of torpedoing a nomination.
And of course the cesspool of right-wing media like Fox News stands ready to throw wrenches into the confirmation process. Reputable media are also looking for issues that have sunk past nominees, such as a failure to pay payroll taxes for a housekeeper or employment of an illegal alien. (Who can forget Nannygate?) Trump managed to avoid such obstacles thanks to a rubber-stamp Senate that steadfastly dodged its duty to thoroughly review the qualifications—or lack thereof—of even Supreme Court members. But we can be sure that Senate Republicans will compensate for this oversight by using a microscope on even low-level Biden nominees requiring Senate confirmation.
It’s as true as it is banal to say that personnel is policy. Without his own people in place, Biden will be severely hampered in pursuing his agenda. He needs Cabinet secretaries and the vast array of undersecretaries, assistant secretaries, and so on to flesh out his ideas, draft legislation and regulations, testify before Congress, and do all the other things necessary to transform an idea into policy.
This constraint is compounded by the fact that new presidents have only a short “honeymoon” period in which to enact some of the more controversial aspects of their agenda. Since the administration of Franklin Roosevelt, this period has traditionally been pegged at 100 days. While this interval isn’t set in concrete, all presidents know that they must work quickly to convert their campaign promises into law before they are sidetracked by the inevitable crises, foreign and domestic, that are sure to pop up. This is especially the case with politically contentious legislative actions such as Ronald Reagan’s 1981 tax cut, Bill Clinton’s 1993 budget deal, and Barack Obama’s 2009 stimulus program.
Of course, Biden will take office in the midst of one of the greatest crises in American history: the Covid-19 virus and the attendant economic and social problems it has created. Trump and his party have been incredibly irresponsible in their handling of this catastrophe, leading to the deaths of at least 130,000 Americans over and above those who would have died under competent leadership, according to a Columbia University study. (And Republicans continually lie about casualties from the virus, asserting that they are overstated, when in fact they are considerably underestimated, which can be inferred from hard data on deaths from all causes, which are well above normal even after adjustment for Covid.)
Unfortunately, the pandemic will slow the appointment process and almost everything else Biden needs to do to be ready take office at noon on January 20. Background investigations and the normal work of transition officials will necessarily be hampered. And that would be true even if Trump doesn’t actively sabotage the effort, which is almost certain.
Until 1933, the transition process lasted from Election Day until March 2. Such a long transition period often prevented presidents-elect from having access to the corridors of power during critical times, which was damaging to the nation. The classic example is the transition from Herbert Hoover to Franklin D. Roosevelt in 1932–33. Hoover made it clear that he disagreed completely with FDR’s plans for dealing with the Great Depression, and refused to cooperate with him on economic stimulus, banking legislation, or international cooperation. This led to the enactment of the Twentieth Amendment to the Constitution, which moved inauguration day up to January 20.
The Presidential Transition Act of 1963 created a formal transition process for the first time. The law has been amended several times. Under current procedures, each department designates a career senior staff person to liaise with incoming presidents and organize transition activities. Six months before the election, the White House must establish a coordinating council consisting of high-level officials to arrange briefings and assist in clearances necessary for new appointees to key positions and so on. On April 27 of this year, the acting director of the Office of Management and Budget established such a council and Joe Biden designated former Senator Ted Kaufman to head his transition team. (Kaufman served on Biden’s Senate staff for many years and was appointed to replace him in the Senate when Biden became vice president.)
In May, the General Services Administration explained what services it was prepared to provide Biden’s transition team in terms of office space and other administrative details. The Office of Personnel Management is in the process of preparing the so-called Plum Book, which lists all of the schedule C jobs (political appointments) in the administration that Biden will be able to fill, including those that do not require Senate confirmation but nevertheless require background checks.
My wife worked on the Reagan campaign in 1980, and she tells me that literally the day after the election, she and the rest of the campaign staff shifted over to the transition operation. Not surprisingly, they were inundated with résumés from people wanting administration jobs. Those looking for a very specific job had a much better chance of success than those with no particular interest or expertise. She ended up at the Interior Department. A casual review of the Plum Book listings for that agency suggested to her that there are many, many more political positions now than there were in 1981.
My main experience with transitions was in 1988, when George H.W. Bush replaced Reagan and I was at the Treasury Department. Although this was a politically friendly takeover, Bush was as thorough as any Democrat would have been in cleaning out appointees from the previous administration and installing his own people. This engendered a lot of unnecessary bitterness from the Reagan people that hurt him in 1992, I believe. (From my observation, many of the Bush people had no more connection to Bush than the average person on the street, and many of the positions held by fired Reagan people went unfilled for months or years. Filling positions through attrition would have been a better policy.)
Obviously, every political appointee in the Trump administration will be gone by January 20. Biden will undoubtedly have filled many of the top Cabinet positions by the time the new Congress reconvenes on January 3. This means that hearings can start early and Senate confirmation secured as soon as Biden takes office.
One piece of advice for outgoing Trump officials: Resist the temptation for petty sabotage and pranks such as the Clinton people did at the end of their administration. According to a June 2002 GAO report, the W key on many computers was pried off, requiring thousands of dollars to be spent on new keyboards. One can only hope that the National Archives won’t find every hard drive in the White House wiped clean and every paper document shredded, but it is almost a certainty that much of Trump’s record will disappear unless staffers have made personal copies—which I hope they are doing, if only for the benefit of historians and maybe prosecutors as well.