The Constitutional Law of Presidential Transitions

Abstract

Presidential transition periods are times of uncertainty and contradiction. The outgoing president retains all the formal legal powers of the presidency, yet his last electoral success is four years removed and his political capital is at low ebb. Further complicating the matter is that the transition agendas of the two presidents are unlikely to be aligned. Even if both presidents are from the same political party, their goals in the transition period may be widely disparate. The outgoing president will be concerned with preserving his legacy. The incoming president, on the other hand, will be focused on beginning her own initiatives. When the incoming and outgoing presidents are from opposing political parties the conflicts during the transition period may be even more acute. The outgoing president will want to protect his policies or accomplishments from being reversed or undermined and may also want to create obstacles to prevent his successor from too quickly achieving political and policy success. The incoming president, in turn, may desire to expeditiously reverse the policies of the previous president and may choose to tarnish the record of her predecessor in order to weaken any remaining support for his programs. Not surprisingly, then, presidential transitions have historically followed no consistent pattern. This article investigates whether there are the legal principles that guide the conduct of the president during presidential transitions and, if so, how far those obligations extend. We introduce the issue by reviewing the procedures for selecting and inaugurating the president and by canvassing the historical record as to how transitions have previously been accomplished. We then discusses whether Constitutional provisions such as the Take Care Clause, the Oath Clause, and the Term Clauses and/or the president's implied foreign policy and national security powers confer legal duties on the president with respect to transition. We conclude that presidential transitions impose some constitutional obligations upon the president but that outside the area of foreign policy, the extent of those obligations are relatively limited. We suggest that the outgoing president must offer sufficient briefings and assistance to assure that the new president is able and prepared to execute her powers from the first day in office. We contend, however, that the outgoing president is under no obligation to implement the new president's political agenda or to end implementing his own even if the new president may be forced by the outgoing president's actions to expend her political capital to undo the previous administration's work. The Constitution does not demand that the outgoing president pave the political way for his successor.

Keywords: president, presidential transitions, constitutional obligations under presidential transitions

JEL Classification: K4, K49, K29