Mark Medish :

JOE Biden keeps departing and Donald Trump keeps arriving. The soon-to-be former president and the still-future president are like comic-tragic characters in a political zombie film.

Let’s face it: the US presidential transition is a constitutional travesty. The months-long transition is undemocratic, unseemly and quite dangerous.

Mark the current scene. A politically defunct, King Lear-like Joe Biden continues to make big and small policy decisions after his intended successor’s platform narrowly but clearly lost at the ballot box, even as President-elect Donald Trump conducts an incipient shadow presidency through a torrent of legal maneuvers, social media pronouncements and interviews, sounding more Caesarian by the day.

Both the recent hectoring of Congress by Trump over the eleventh-hour budget deal and debt ceiling and the thriller over the threatened shutdown of the hugely popular social media platform TikTok on the day before the inauguration, pending a Supreme Court decision to the contrary, highlight the foolishness of permitting a long lame duck period with anything more than caretaker powers.

This spectacle of ‘dual power’ — to borrow a famous phrase from the tumult of revolutionary Russia in 1917 — is an affront to democratic common sense. Some would argue it’s a ‘triple power’ situation, with plutocrat-maximus Elon Musk as a pretender to the ad hoc triumvirate, but that is another matter.

The protracted transition period is built largely around the calendar of the antiquated electoral college process in which the supernumerary votes of state electors are deemed constitutionally more important than the national popular vote. Consequently, we must wait for the electors and Congress to act, and then another two weeks, until January 20th for the drama to end.

This long transition virtually guarantees a presidential time of troubles, a period of heightened national risk during which a president who has lost or lacks the electoral mandate nevertheless possesses full but unchecked and unaccountable ‘lame duck’ executive powers.

A UK prime minister who has lost hold of a governing majority usually exits 10 Downing the morning after the election, as just happened in July 2024, but the defeated or otherwise exiting US president is allowed to linger for many weeks like rotting leftovers in the fridge. Worse, under cloak of the transition, the slow-exiting president is allowed to do by stealth what he could not get away with normally.

The chronicle of lame duck abuses of presidential powers is long, rich and fully cross-partisan. Typically accomplished by executive order, some abuses have been on the level of self-interested peccadillos, others on the level of acts of war. To cite just a few illustrative cases:

Biden’s breaking an explicit pre-election promise and pardoning of his own son, Clinton’s dubious pardoning of Marc Rich, Trump’s pardoning of Roger Stone and Paul Manafort.

Biden’s escalatory measures in the Ukraine war including long-range ATCM missile strikes and expropriation of sovereign assets after his administration’s war strategy was rejected by a majority of voters.

George HW Bush’s launch of the ill-fated Somalia mission bequeathing the ‘Black Hawk Down’ debacleto the incoming Clinton.

Eisenhower’s CIA-led assassination of the uncooperative Congolese leader Patrice Lumumba just days before JFK took office.

And the lame duck locus classicus, the series of ‘midnight’ judicial appointments by outgoing John Adams in the last weeks of his term.

The issue is less about the merits of the underlying decisions — which could and should have been debated ex ante — but about the timing of such executive acts beyond the reach of democratic and legal accountability.

Perhaps nothing has revived the nagging questions about the duration of the post-election presidential transition as much as the abortive January 6 insurrection-cum-coup attempt. The fact that Congress resorted to a failed post-presidency impeachment process to hold Trump accountable for alleged incitement of January 6 shows how lawless the transition period has become.

The accountability problem is reinforced because an outgoing president might be presumptuous enough to pardon himself while also enjoying expansive new constitutional immunity – that is, impunity — according to the Supreme Court’s 2024 decision in the aptly named case Trump v United States.

Furthermore, the specter of potential abuse of Presidential emergency powers, either delegated by Congress under Article 1 or ‘inherent’ in the presidency under Article 2 as some legal authorities argue, hangs over the transition and intensifies the risk. For example, could Trump have invoked the Insurrection Act during the 2020 transition to advance his political objectives? Could Biden do so now? Would the courts be able to constrain such anti-democratic arrogation of power? We cannot know for sure.

As a retired Federal judge once commented, the Constitution is at bottom ‘a gentleman’s agreement’ not to act in bad faith. The fact that worse things have not happened during transitions is a testament to the relatively high levels of good faith, comity and trust that have characterised American political culture. Today those democratic civic virtues show signs of marked decay, raising concern of abuse of power.

Why does the transfer of power take place so long after the election and what can be done to tighten the schedule? Not much, but let’s explore the predicament briefly.

By amendment, the Constitution currently sets the date for the end of the outgoing president’s term in office and the start of the new presidency simultaneously at noon on the January 20. This means that the presidential transition can take as long as 80 days after the holding of the election in early November.

Consequently, an incumbent president who has lost an election or is term-limited effectively wields full Article 2 presidential powers even after losing the electoral mandate. A similar lame duck problem pertains to the old Congress which stays in office until early January. These unnecessary delays violate popular sovereignty and represent basic flaws of governance.

Significantly, the transfer of power was not always on January 20. Indeed, the precise calendar date was not in the vision of the original framers of the constitution.

Until 1933, inauguration day used to be either March 4 or 5 (to avoid a Sunday) by act of Congress continuing the tradition under the Articles of Confederation.

The long delay arguably made some sense in the early 19th century because of limitations of transportation, for example if a new president had to trek from the hinterlands to Washington by horse and buggy. But technically there was — and is — no reason the newly elected president could not take the oath of office at almost any location or date.

The old customary practice of a March inauguration changed after the 20th amendment went into effect in 1933 bringing forward the date to January 20th as a matter of Constitutional law. According to its backers, the purpose of the amendment was to shorten both the presidential transition and to curtail the old Congress in which defeated or outgoing members would serve until March.

However, by using a constitutional amendment to impose a new date, these modernisers imperfectly addressed the duration problem while making the situation far worse by cementing it in the basic law. As with prohibition, to fix the self-inflicted problem, we would need to repeal the flawed amendment by a new amendment, which is all but politically impossible today.

Rigid calendar dates probably have no place in a constitution. A functional date tied to when the election certification has occurred rather than an arbitrarily appointed calendar date has the advantage of flexibility in adapting to when the popular electoral will is known.

Of course there are some practical trade-offs. It is reassuring to have a date certain for the old president to leave office. But it is also a big risk to wait so long for the transfer of power.

Two main reasons are often advanced to justify the extended duration of the transition. Neither is in the least compelling. The first reason relates to the drawn-out timeline of the electoral process which supposedly requires this long presidential entr’act. The inexplicably long time to have finalise American election results, despite our modern digital and communications technologies, is itself an offense to common sense. Making virtue of this unnecessity is a vice.

A second argument given for the slow transition is the alleged need for the new government to prepare itself for power. Nonsense. Nobody should be running for the highest office if they are not preparing long in advance to take office.

A veritable ‘cottage industry’ of legislation and scholarship, including Bush National Security Advisor Stephen Hadley’s self-congratulatory memoir, has developed about the presidential transition period focusing on issues like cooperation between the outgoing and incoming teams and on the vetting of new personnel as well as the political appointment process.

Most of this preparation adds little or no value, wastes time and is a poor excuse for running the risks of a lame duck period. Having participated at a senior level in the national security aspects of one presidential transition from the exiting side, I can attest to the at most glancing interest on the part of the incoming team in what we had to say. After the 2000 election (itself a morass), this included warnings about ongoing terrorism threats from al-Qaeda and other extremist groups.

Consecration of the unduly long transition gets things exactly backwards. The burden should be on presidential candidates to have their teams mostly picked if not announced well before the election. Once a president has lost the popular mandate, time is up. The outgoing chief executive should exit stage right forthwith, and the new POTUS should be ready to report for work immediately. Furthermore, the basic functioning of the US government does not depend on confirming new political appointees. Budgets and continuing resolutions are not dependent on presidential inaugurations.

The unaccountable transition period is among the many depressing and potentially dangerous derogations of democratic principles in the Constitution. The list also includes omissions such as the lack of an individual right to vote, lack of gender equality, lack of a privacy right, disenfranchisement of District of Columbia and the US territorial possessions. For a brilliant and sobering discussion of such issues, see Erwin Chemerinsky’s book No Democracy Lasts Forever: How the Constitution Threatens the United States.

Justice Robert Jackson long ago warned in a much quoted dissenting opinion about the risk of anarchy that the Constitution should not be read as a ‘suicide pact.’ Unfortunately, despite its manifest nobility of purpose and pioneering ingenuity, as written, amended and interpreted, the founding charter also contains ingredients for the undoing of our democratic republic.

The long transition may seem like an innocuous administrative quirk — a political recess period of sorts — but it carries perils. Neither Congress nor the courts are likely to mitigate the risks of the presidential transition.

Public outrage may be the only thing left in the tool kit of checks and balances. But outrage depends on ‘we the people’ paying attention and caring about democratic legitimacy. An ‘autocracy-curious’ or apathetic public could license the opposite.

CounterPunch.org, January 6. Mark Medish, a lawyer in Washington DC, is a former senior White House and treasury official in the Clinton administration.