Power Transitions in a Troubled Democracy

Written as our contribution to a festschrift for the noted Italian administrative law scholar Marco D’Alberti, this essay addresses transition between Presidents Trump and Biden, in the context of political power transitions in the United States more generally. Although the Trump-Biden transition was marked by extraordinary behaviors and events, we thought even the transition’s mundane elements might prove interesting to those for whom transitions occur in a parliamentary context. There, succession can happen quickly once an election’s results are known, and happens with the new political government immediately formed and in office. The layer of a new administration’s political leadership directing its activities is generally quite thin, dependent on the training and discipline of the permanent civil service populating high as well as low elements of government to implement its policies. If, as is often the case, the incoming ministers have been parliamentarians with a particular interest in the matters for which they are now responsible as ministers—perhaps even as shadow ministers for the opposition—they may already know a good deal about and have relationships with the civil service staffs they will be inheriting. And the continuity of staff and tradition of service across different governments also benefits newcomers, easing the learning curve they face upon taking office. They do not need the transition teams that new Presidents use to educate themselves about the government they are about to lead. Neither the President nor a new member of Congress, however, takes office immediately after national elections. Although the election may have considerably changed Congress’ political complexion, the pre-election Congress remains in office for two more months, and although the voters may have elected a Democrat to replace a Republican President, the Republican President and his political appointees in the executive branch—including all departmental and important agency heads—can remain in office at least seventeen days after the new Congress convenes. This transition time gives the outgoing President a window in which to further policies that the voters may just have rejected. “There is something profoundly troubling,” Sanford Levinson of the University of Texas wrote in anticipation of the election of 1996, “in allowing repudiated presidents to continue to exercise the prerogatives of what is usually called ‘the most powerful political office in the world.’ Power transition in the United States is further complicated by the thickness of the political layer within governmental departments and agencies; by the absence of any practical need for presidential candidates to commit themselves before election to the more important appointments they will make if elected; by the way the Constitution’s explicit separation of service in Congress and the Executive branch impacts the likelihood that new appointees will be familiar with the operation of the body to which they are appointed; and by the necessity that the President’s choices for the most important political positions in his administration be confirmed (approved for their office after a public hearing before the relevant committee) by the Senate then sitting. All of this can considerably slow, overall, the process of political change. Changing course has the speed and difficulty of navigating a large, heavy vessel, not a simple motorboat. The transition from Trump to Biden, then, is both troubled and troubling. As work on this essay was concluding, Republican senators used the filibuster to block creation of a bipartisan commission to investigate and report on the January 6 assault on Congress by legislation Republican negotiators had accepted as balanced – and in the national transition of such inquiries in response to major national events. The legislative situation, given both the narrowness of Democrat control and the stated priorities of Republican leadership to put all their efforts into blocking the new administration’s success – using party discipline to preclude bipartisanship – will not just stymie legislation. The tools of executive power are now in President Biden’s hands, and these roadblocks may tempt him further down the paths his predecessors have taken, asserting increasing control over executive government’s functioning, acting on his own where cooperation cannot be had. To repair the political damage President Trump inflicted on the government bureaucracy may prove impossible without President Biden appearing himself still further to thicken the political layers atop the civil service. Admiring his motivations, and troubled by the administration he succeeded, the difficulty is seeing a clear path back to a government constrained by the norms that had long kept our democracy safe.