The GSA Delayed Biden’s Transition. Future Presidents-Elect Could Sue to Speed Things Up.

Read the original article: The GSA Delayed Biden’s Transition. Future Presidents-Elect Could Sue to Speed Things Up.

President Trump exits the White House. (White House photo)

On Nov. 23—almost three weeks after Election Day, and two weeks after the press called the election in favor of the Democratic ticket—the presidential transition finally began with a letter from General Services Administrator Emily Murphy. Pressure had been building on Murphy after she refused to certify the transition following President-elect Joe Biden’s victory, a step that the General Services Administration (GSA) usually takes promptly following an undisputed presidential election in order to make government resources and information available to the victor. According to Murphy’s letter, she finally made the decision to unlock the resources to the Biden team “because of recent developments involving legal challenges and certifications of election results.”

The costs of a delayed transition are not just political. Business leaders warned that “[w]ithholding resources and vital information from an incoming administration puts the public and economic health and security of America at risk.” A statement from more than 100 Republican national security professionals found “significant risks to our national security” from the delay—particularly given the 9/11 Commission’s conclusion that the transition delay caused by election disputes in 2000 hampered the George W. Bush administration from recognizing and responding to the threat posed by al-Qaeda. With luck, the damage to the country in 2020 will not be as significant as in 2000.

In one sense, the delayed transition was a matter of political controversy that was appropriately resolved in the political sphere. Many assumed that any legal action on the part of the Biden team to accelerate the transition would have been ineffective, and the president-elect expressed reluctance to take any. In her letter, Murphy claimed the governing statute, the Presidential Transition Act of 1963, “had little to offer in the current case,” and that “’[u]nfortunately, the statute provides no procedures or standards for this process.” She urged Congress “to consider amendments to the Act.”

In light of the chaos of the past few weeks, changes to the Presidential Transition Act might well be in order. But are legal remedies really unavailable under the existing statute? In a future dispute, the Administrative Procedure (APA) provides tools that a winning candidate could use to force the hand of a reluctant GSA administrator. Any case would be an uphill battle, but it’s not one that should be dismissed out of hand.

There have been a number of instances throughout the Trump administration where norms proved to be unsupported by concrete authority. But the norm of a timely transition is not one of them. Any amendments to the Presidential Transition Act should take these potential claims into account and make use of what the Justice Department once described as the “statesmanship and wisdom” of the drafters of the APA.

The Presidential Transition Act and the Administrator’s Letter

The Transition Act was enacted “to promote the orderly transfer of the executive power in connection with the expiration of the term of office of a President and the inauguration of a new President.” It declares “the intent of the Congress that all officers of the Government” act “to take appropriate lawful steps to avoid or minimize disruptions that might be occasioned by the transfer of the executive power.”

The act provides that the GSA administrator “is authorized to provide, upon request, to each President-elect, each Vice-President-elect, … necessary services and facilities” which include office space, salaries, and expenses. It also provides that “[t]he Administrator shall expend funds for the provision of services and facilities under this section” relating to expenses incurred by the president-elect and vice president-elect, during the period starting the day after the election and concluding 60 days after inauguration, and without a need for expense reimbursement requests. In other words, no receipts needed.

The Transition Act applies to a “President-elect” and “Vice-President-elect” which “shall mean such persons as are the apparent successful candidates for the office of President and Vice President, respectively, as ascertained by the Administrator following the general elections held to determine the electors of President and Vice President in accordance with [3 U.S.C. §§ 1-2].” As such, the administrator’s “ascertainment” is the key step to enable transition resources to flow. Prior to the release of Murphy’s letter, GSA stated, “An ascertainment has not yet been made.” The agency envisioned its task as to “ascertain[] the apparent successful candidate once a winner is clear based on the process laid out in the Constitution.” Reports indicated that Murphy was “said to be considering several mileposts that would give her a political comfort level in declaring Biden president-elect,” ranging from state certification to the Jan. 6 counting of electoral votes.