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The Official Podcast for the Minnesota Law Review - https://journals.law.umn.edu/mlr
00:00:26:06 - 00:00:45:01
Unknown
Hello and welcome to the Experto Crede podcast. I'm your host, Leigh Silverberg, online editor of the Minnesota Law Review, volume 106. With me today. I have two esteemed professionals, and I'm very much looking forward to talking with Professor Shaw and Hertz. Thank you all for coming on with me today. Thanks so much for having us. It's good to be here.
00:00:45:13 - 00:01:12:09
Unknown
Glad to be here. So today we'll be discussing y'all's article published in the Minnesota Law Review, volume 106, Transition Administration. And before we get off on anything else, I really want to know as an admin large web, where did the germ for this idea, this piece come from and how did y'all act upon to make it? You know, honestly, a wonderful, easy read for me and just a ton of fun.
00:01:12:13 - 00:01:29:25
Unknown
Well, thank you for the compliment. And if it's an easy read that is largely due to the labor of your colleagues at the Law Review, they did a terrific job whipping the piece into shape. You know, in terms of the origin story, I was a young lawyer on Barack Obama's 2008 presidential campaign and then on the presidential transition.
00:01:29:30 - 00:01:59:09
Unknown
And so I have been interested in the legal framework that surrounds presidential transitions and the sort of that it's it's thinness or the thinness of sort of the amount of legal framework that surrounds transitions since I, you know, was toiling away as an associate council on the Obama transition project late 2008, early 2009. And so I sort of had a file that was like, you know, transition related musings on my laptop for years.
00:01:59:11 - 00:02:33:18
Unknown
I'm not sure I've ever told you this, Michael, but I did. And then Michael and I just had a series of conversations about it. And Michael is a terrific scholar of administrative law who's been doing this slightly longer than I have. And I think we just had enough conversations about some of the legal questions and administrative law questions that transitions present, that we just sort of started talking about putting pen to paper and writing an article about the legal framework that surrounds president presidential transitions, some of the gaps, some potential places for reform.
00:02:33:28 - 00:03:14:42
Unknown
And then it became an incredibly timely topic with the chaotic transition between President Trump and President Biden. Well, both chaotic transitions both into and out of the Trump White House. So that's my version of the origin story. Michael, did I leave anything out? No, I think that's right. I would emphasize a little more the the Obama to Trump occurrence, which, you know, transitions had the the the Bush to to Obama transition was a famously successful, smooth, happy transition despite profound political differences and animosity from the campaign, everybody completely rose to the occasion.
00:03:14:42 - 00:03:40:21
Unknown
And it was a happy story and and much trumpeted happy story, which was not in the slightest replicated eight years later. And and so the kind of calamity or catastrophe is maybe too strong a word, but but certainly the going off the rails and the public attention, the going off the rails of the of the Obama, the Trump administration was a big goad for us.
00:03:40:25 - 00:04:04:13
Unknown
And I should say, the Bush to Obama transition was not only famously, but actually incredibly smooth and effective right from the inside. That was really true. It wasn't just law. And so I think that one of these questions that remained with me was, you know, as I then became a law professor and started to think about the relationship between law and norms, you know, sort of the source of and the specific content of these norms that's around presidential transition.
00:04:04:13 - 00:04:29:18
Unknown
And of course, we all started to wonder in a number of different areas about the durability of norms during the Trump administration and potentially the necessity for codifying into law things that had previously existed only as norms in the executive branch. So that's that's essentially the origin going off that point. The norms that I think is very important, especially for myself as a law student.
00:04:29:18 - 00:04:50:49
Unknown
I was ending college around the Obama Trump administration transition, and I've been in law school now during the Trump to Biden administration transition. And the beginning of your paper actually hits on one of these norms. It's a little bit silent in the Constitution, which is the one president at a time model of our government. And I'd like to give you all some space to talk about that, because I've never thought about that.
00:04:50:49 - 00:05:16:42
Unknown
But as soon as I read it, it jumped off the page. It hit me in the head. And I said, well, yeah, actually that makes a lot of sense as a as a formal matter, there's no escaping the one president at a time proposition. You sit down and read the Constitution and ask yourself, what role does it create for the president elect, or for that matter, for the former president?
00:05:16:47 - 00:05:46:21
Unknown
None at all, none at all. And to the contrary, every other, every hint is that the president is the president. And there's only one the the vesting clause of article two famously says that there shall be a president and the 20th amendment, you know, sets not just a day, but a time at which that light switch flips and we go from one president to the other.
00:05:46:21 - 00:06:16:33
Unknown
Just a moment. And so and president elect over the years have used this phrase as well, one president at a time, for fear of appearing a little too big for their britches. And yet, and yet and yet for an incoming president, an incoming administration to be effective, the operation has to get going long before noon on January 20th.
00:06:16:33 - 00:06:47:52
Unknown
And over the last century, that operation has become to look more and more like a kind of government operation, as if actually there is the president. And then there's this figure who becomes more and more visible as January 20th approaches. And so as a formal legal matter. Absolutely. There is one precedent. And in terms of who is commander in chief and who can issue pardons and who can make appointments and so on.
00:06:47:54 - 00:07:36:52
Unknown
There's only one person, there's only one precedent. But in escape, there's another important figure. And the Constitution may be silent about it. But there is now a statutory structure surrounding that figure. And as Kate said, a whole set of norms with kind of quasi constitutional strength that that surround that operation. And maybe I'll just say one other thing about, I mean, Michael mentioned the 20th amendment is in a document of many general terms, principles, ideas, the specificity of that moment, not just naming the date, but the specific time at which you know the light switches, as Michael described it, and one person becomes president and one person is no longer the president.
00:07:36:54 - 00:08:22:04
Unknown
It does seem to, you know, be pretty strong evidence of this kind of exclusivity singularity of kind of the presidency and presidential power. And yet, in practice, things actually look much more complex. The document itself doesn't reflect this complexity, but practice. And maybe I'll just give one example. You know, the Senate, right? A very important institutional rival of the president has indicated through its conduct for many years that it understands the president elect to have some quasi, at least governmental constitutional authority because the Senate gives hearings to the intended nominees of the president elect prior to noon on January 20th, when the president elect becomes the president.
00:08:22:09 - 00:08:49:30
Unknown
So that's a pretty important signal, I think, that other players in our constitutional structure understand the president elect to be a somewhat unique figure, and sort of a purely private person is not the sort of most accurate way to describe the figure of the president elect. So not the president, but neither a purely private individual. And so some kind of hybrid, neither fish nor file entity is how I think we came to think about the figure of the president elect.
00:08:49:30 - 00:09:20:35
Unknown
And so sort of cataloging as a descriptive matter how the various other entities within government have either explicitly described or revealed through their course of conduct themselves, to understand that actual status of president elect was, you know, sort of the first, I guess we tackled history first, but also an important part of this project, because sort of pulling together in one place these sources of both hard and soft law was something that we just hadn't seen done before and seemed a really practically useful project to undertake.
00:09:20:40 - 00:09:36:37
Unknown
Not all legal scholarship sort of views that as an aspiration to me. I think practical utility is actually a really important value in legal scholarship. So so we thought there was some inherent value in doing that. And hopefully we did, you know, we did significantly more in the paper as well. As a reader. I definitely think that you accomplished that much, for sure.
00:09:36:47 - 00:10:00:52
Unknown
But building on something that both of you all mentioned, there appears to be a locomotion almost in presidential transitions. The article really nicely sets out the history of transitions, and how they start is fairly modest. You know, movements between authority to the Reagan administration and their transition, which was in itself absolutely locomotion qua locomotion. It was a machine.
00:10:00:52 - 00:10:21:54
Unknown
And now, of course, we have massive transitions that are in themselves almost agency like. And I'm wondering, is this really just time passing? Things got faster in Washington, or is this the building of a new area of law that's in its infancy, but very much not in its infancy? You know, the history was really fun to dive into because you're exactly right.
00:10:21:54 - 00:10:52:40
Unknown
There is almost nothing that could call a self a transition for the first few administrations. And you're right that, you know, Reagan is identified by folks who study the presidency and transitions as one turning point. There's, you know, 32 who were to in 1932 is a pretty important turning point as well, in that FDR actually really assembles a very large team prior to the transition and begins to work diligently to sort of address sort of what the policy agenda the incoming administration will be.
00:10:52:40 - 00:11:22:49
Unknown
Obviously, the nation is in crisis. It's important that the new administration take over and sort of hit the ground running in the famous phrase. And but so those, I think are two kind of important breaks. But yeah, early on, I mean, you have just very, very little substantive exchange between outgoing and incoming president, sometimes acrimony, sometimes disinterest, sometimes exchanges about things like whether to retain a housekeeper and how many horses will be left in the white House stable, and nothing more substantive than that.
00:11:22:49 - 00:11:41:04
Unknown
But obviously we have long since left those days behind. And so I think that, you know, it's, you know, in part the sort of growth in the scope and complexity of the federal government. And, you know, there's also just, you know, at in the early days, you know, these operations such as they were didn't even happen in DC at all.
00:11:41:04 - 00:12:13:01
Unknown
And so sort of the shifting of the locus of transition activity to Washington, D.C., and sort of the formalization is, you know, a kind of result is, I think, intertwined with the growth, both technological advances and the growth in the kind of expansiveness and complexity of government and the administrative state. But it was really a lot of fun to go back and actually look at the history of transitions, because really there was there was nothing, again, in the early days that really even could have properly been called transition.
00:12:13:06 - 00:12:58:37
Unknown
And today they're massive, I think agency like operations. And so we sort of trace that trajectory. I mean, it's a little hard to disentangle the threads in your question. One significant factor, as always, is money. And the fact that until the 1960s, presidential transition operations were completely privately funded, were essentially unfunded and therefore smaller period and Congress. In 1963, at the urging of John F Kennedy, adopts the Presidential Transition Act, signed into law in 1964.
00:12:58:49 - 00:13:33:35
Unknown
So the first transition that actually takes place pursuant to it is is 1968. And the PTA has been amended many times since. But it did, you know, one essential thing it did was make significant amounts of money available for transitions. And if the money is there, it's going to be spent. And so one driving force in, in increasing the size and scope is simply that the feds are paying for it.
00:13:33:37 - 00:14:04:18
Unknown
Now, the feds are paying it for good reason. The money isn't being wasted. But this and it's with regard not just to the funding, the kind of relationship between how it is. The Presidential Transition Transition Act reflects changes in presidential transitions and to what extent it produces changes in presidential transitions. It's very hard to disentangle both. Those things are absolutely happening at the same time.
00:14:04:23 - 00:14:22:30
Unknown
Jumping off that point, I think the the Presidential Transition Act is really at the core of a lot of what's going on in the article, but it's certainly not the end of it. Right. There are many other areas of law, and actually there's a lot of law going on that's kind of in a nucleus just all rolling around this one act.
00:14:22:30 - 00:14:43:06
Unknown
If you could talk maybe a little bit about the Presidential Transition Act, I doubt that or presidential Transition Act policies. I doubt that many people have gone through that act and read it very carefully. And there any law school class? I have never taught it in any law school class, nor have I.
00:14:43:11 - 00:15:38:21
Unknown
Well, the act does a couple of things. It's it's essential goal is to provide necessary support from the government to the incoming transition team. And it doesn't directly regulate the incoming transition team. It does, in essence, regulate the government operation that is there to support the incoming transition, provides funding, and it does indirectly impose some obligations on the incoming operation in order to qualify for that funding, including, for example, under the most recent amendments, adopting an ethics pledge, having everyone in the transition, the incoming administration signed an ethics pledge, including entering into a memorandum of agreement with the General Services Administration about how the operation is going to run and so on.
00:15:38:30 - 00:16:16:52
Unknown
But the two essential things it does are, as I said, provide funding, funding which will be used to pay staffers to provide offices and and to provide technical sort of communication support and so on, among other things, that incoming transition gets government email addresses, for example. And so there is the financial support. There's the logistical support. And the third thing I said too, but I've got three.
00:16:16:57 - 00:16:49:04
Unknown
The third thing is to create within the agencies an apparatus which will be there to facilitate and smooth the incoming operation and enable them to figure out what's going on in the agencies, what the priorities are, who is who, what's been happening so that they're not starting from scratch on day one, and so that, among other things, each agency has to identify a transition director.
00:16:49:09 - 00:17:16:09
Unknown
Each agency has to come up with a briefing book completed by November 1st. In other words, before we know who the next president is, that's quite deliberate. To prepare a set of briefing materials for the incoming administration. And it creates a all those agency transition directors are together in a transition director's council. And separately, there's a transition coordinating council, which is more focused on the white House.
00:17:16:09 - 00:18:01:40
Unknown
And all of this is to sort of plan and assist in in the transition. So that has kind of changed over time. The amount of money has changed, the superstructure has changed. The requirement of creating was added later and so on. It has all been a shift towards more formal, more more of an explicit superstructure. And then finally, you know, one critical kind of aspect of the act and shift and greater emphasis over time, which is at the heart of the article, is increasing reliance on career rather than political staff to do all the things I just described.
00:18:01:45 - 00:18:35:13
Unknown
And maybe one key example of that is the 2016 amendments to the PTA actually require the creation of this federal transition coordinator, who, by statute, must be a senior career official. So the government wide coordinator of kind of all matters transition related must be a career official. And so we think that that's a pretty significant development, right. Explicitly centering and empowering someone who is a career official as sort of the government wide lead in coordinating the transition, that that person has to be in the GSA.
00:18:35:25 - 00:19:06:59
Unknown
And it's not the person who makes the famous ascertainment, which was such an issue in the fall of 2020. But it's the person who kind of on the ground in a day to day way, is making sure the operation is running smoothly. That empowerment of government agents, career service individuals is really one of the I would say it's one of the points that I took out of your article is that that is a trend almost, and it's an area that law may be going, but definitely should be going to.
00:19:07:04 - 00:19:39:16
Unknown
Is that the trend overall passed 2016? Why is this something that is going to continue to need more work? Is it going to be something that is unfinished? Let me situated slightly, because it's an example of a larger set of issues about how government works and how agencies work. There is a, you know, at the head of every agency is a political appointee, and that person changes with the administration.
00:19:39:21 - 00:20:06:57
Unknown
But the huge majority of people doing the day to day work of the agency, of course, our career staff, and they are there over the years from one administration to the next, and they have an obligation as employees to follow the instructions of their superiors on the organization chart. And but they know a lot more than the political appointees.
00:20:07:04 - 00:20:34:25
Unknown
They know where the skeletons are. They know the work arounds. They know the history. They know the they know what happened the last time we tried to do this and so on. And it is a common experience for political appointees from both parties to find that the sort of just saying, let's do this doesn't translate into it happening for better or worse.
00:20:34:30 - 00:21:09:09
Unknown
And so the relationship between political and career staff in an agency is it really can't be. Its importance cannot be overstated and its complexity cannot really be overstated. And it's more a political scientist topic or a public administration scholars topic than a law professors topic. But it's one that law professors are paying increasing attention to, because it's just so indispensable to understanding how agencies operate.
00:21:09:11 - 00:21:40:16
Unknown
So when you think about transitions, you have, you know, political folks coming in, political folks going out, assuming there's a change in parties, there's just been an election. They're likely not to like each other very much. They're likely to have different priorities. They're likely to each feel the other is ruining the country. And that is a prescription for.
00:21:40:21 - 00:21:51:09
Unknown
At least stalemate and maybe, maybe kind of disruption and sabotage. Mutual sabotage.
00:21:51:13 - 00:22:16:21
Unknown
Which is avoided or at least mitigated by shifting roles from the political appointees to the career staff who are there for the long term, who have an institutional interest to, of course, are going to have political preferences, but who, by the very nature of their job, are used to the idea that.
00:22:16:25 - 00:22:52:21
Unknown
The the goal is to be kind of professional, serious and take the long term interest of the agency in the country art, maybe I'll just say, you know, these long standing trends and tensions that Michael identifies feel to us to have potentially different salience in a hyper polarized moment in which partizan antipathy is at higher and higher levels, and thus the risk of not only acrimonious but actually obstructive transition should too much transition related power reside in the hands of outgoing political appointees seems increasingly dangerous.
00:22:52:21 - 00:23:28:30
Unknown
And thus the imperative we're again charting, we think, as a descriptive matter, a trend of increasing empowerment of career officials. But we also make a plug for accelerating that trend and and for resting more power in career officials, precisely because we think that the risk of, you know, future transitions looking, you know, even worse potentially than the 2016 and 2020 now, I should say the 2016, my sense is that actually, the outgoing Obama team did seek to make itself quite available and helpful to the incoming Trump team, but that the Trump team did not take advantage of those overtures.
00:23:28:42 - 00:24:03:35
Unknown
But certainly there neither of these was an optimal transition. And yet, you know, we think that the possibility of more mischief on the part of, of political appointees is significant if there are future, you know, inter-party transitions in this, you know, hyper polarized moment. I'll say that, you know, again, going back to this law versus norms, what we're talking about now are emphasizing that legal changes in the presidential transition Act that have explicitly given greater power to career officials, we think correctly.
00:24:03:35 - 00:24:35:37
Unknown
And the opportunities for more of that as the norm issue remains, especially in like other settings that are reached by the Presidential Transition Act. So gate was mentioning earlier the Senate's cooperation with regard to intended nominees. And, you know, historically, he least for almost all the entire cabinet, they all got hearings before January 20th before they were officially nominated.
00:24:35:42 - 00:25:08:49
Unknown
And so that boom, the instant that the the inauguration took place, they could be formally nominated and confirmed. That didn't happen in 2021. A handful of intended nominees got hearings before January 20th, meaning on January 19th it really everything was delayed. And it grew out of exactly the polarization that Kate is talking about. And that's one where the norm broke down a bit.
00:25:08:52 - 00:25:32:49
Unknown
There is no relevant law, and it's hard to imagine there being a relevant law for that one. I think jumping off that just a little bit, one of the I guess, one of the philosophies that I felt was an undercurrent in this article is the idea that law cannot supplant norms, but it certainly can help them materialize and allow for seamless transitions.
00:25:32:52 - 00:25:59:35
Unknown
Make sure that the transitions hit the ground running. And I guess to cap this discussion off, is there a way of outside of perhaps just the act itself and the apparent law that surrounds it? Is there a method of, I would say, embracing a return to the norms that maybe America was used to a little bit before the last couple transitions?
00:25:59:42 - 00:26:25:01
Unknown
Or as I would better put it, is there a way of turning back the clock to get back to the speedier, more well oiled machine that I grew up with? As you know, young, for example? I hope so, but I don't. I'm not going to be nostalgic. This wave of nostalgia from this law student is a little depressing.
00:26:25:06 - 00:26:48:25
Unknown
You know, I, I think we would love to. And I also think we don't feel confident that we can trust the durability of some of those norms. After having seen so many of them unsettled in the last few years. And I think for that reason, we do think that you're right. There is an inescapably norm bound or driven aspect to transitions.
00:26:48:25 - 00:27:21:57
Unknown
I don't think, for example, I don't think you could constitutionally legislate to compel the Senate to hold hearings for the intended nominees of the president elect. You could try, but I'm not sure you could do it and other many other aspects of transition. I think it would be hard to codify. And so I think that there to a degree, there will be norms that will continue to largely structure these periods of time in these relationships and these activities.
00:27:22:01 - 00:27:57:57
Unknown
And yet, I'm not sure is sort of an aspirational sort of checklist of norms we'd love to see restored is of great value, because I think that we have seen how, subject to modification, these norms, you know, in particular I'm talking about inside the executive branch are. And so I think that actually taking the lessons of the last couple of transitions, I think the best path forward would be to to do more to strengthen as a matter of law, some aspects of transition.
00:27:58:01 - 00:28:23:37
Unknown
And, and then hopefully those do and, you know, including empowering career officials. But hopefully those do further reinforce the norms. I mean, I guess maybe to take a step back, as far as we can tell, the norms that have largely governed transition held in the case of the career officials who were involved with the transition, even in this most recent one.
00:28:23:42 - 00:29:05:40
Unknown
So there did seem there were scattered stories. One heard of obstructive behavior by political appointees. Obviously, the outgoing president did everything in his power to obstruct the sort of foundational event in the transition, which is the inauguration of a successful candidate for president. And I think you saw political officials inside the Trump administration work to thwart transition. But our general sense is there was probably a range of kind of the effectiveness and thoroughness of the briefing books prepared by each agency and the degree of cooperation that, you know, the incoming Biden team received from various agencies and entities inside the the executive branch.
00:29:05:45 - 00:29:28:33
Unknown
But as a general matter, those norms largely held. So. So I guess after initially resisting your question, I think I agree that we could do more with law to reinforce these norms, but also there is reason to feel as though, at least in some quarters of government that is involved in transition operations. The norms largely did hold. The partnership for Public Service.
00:29:28:33 - 00:29:39:33
Unknown
Tomorrow is releasing a big report about how this transition went. So we can we'll we'll update that answer tomorrow.
00:29:39:37 - 00:30:27:25
Unknown
I would say that, you know, we we live really in an extraordinary moment. And it's not just the extreme polarization between the two parties. So that's a big piece of it. It is the lack of confidence in election results. And I think it's impossible to answer your question now, because we're going through a period where we're going to emerge with overall a greater confidence in our elections or with all our confidence on both sides destroyed.
00:30:27:33 - 00:31:09:04
Unknown
And if, you know, we come out of the current fight over whether Donald Trump actually won the election or not, and the current fight over voting rights and voting processes, with overall a kind of belief that elections are valid, sound and not rigged, then yes, I think there is hope for exactly what you described because all the transition is it's the it's the kind of detailed superstructure of a fundamental event, which is the peaceful transition of power, people, peaceful transfer of power arising out of an election.
00:31:09:04 - 00:31:41:57
Unknown
And people may be furious and upset about the outcome, but they accept the outcome. That's the whole point. And we're now at an extremely dangerous moment where people, many people are not accepting that outcome. And and if the outcome is disputed and you cannot have a successful transition because each side will feel that disruption is morally right. And so so I don't know.
00:31:41:59 - 00:32:06:01
Unknown
I mean, I'm a little gloomy. I'm at least worry. I won't say I'm gloomy, I'm worried and we'll know more before the next election, and then the next election will take place in a way that will either pull us back from the brink or be a catastrophe in a way that we haven't seen yet. Well, I hope for certain that it is the former, not the latter.
00:32:06:04 - 00:32:36:09
Unknown
Thank you all so much for joining us. It was an absolute pleasure. Thank you professor. Thank you. Thank you.
00:32:36:13 - 00:32:55:23
Unknown
Thank you for listening to the podcast. All the opinions discussed in this podcast are the opinion solely of the authors and myself, and do not reflect their institutions, nor do they reflect the opinions of the University of Minnesota, the University of Minnesota Law School, the Minnesota Law Review, or any other parties.