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Democracy’s Undemocratic Transition of Power

As the majority of US voters celebrate President-elect Joe Biden’s seemingly convincing victory in last week’s election, political commentators have been quick to temper the left’s jubilation in anticipation of a divisive transfer of power that could bring harm to Americans and democratic function. With many suggesting that President Trump could refuse to accept the results of the election altogether, either by litigating or simply declining to vacate the Oval Office, questions have reemerged concerning the latitude that our Constitutional Democracy provides in the transition of power. Beyond concession, many have voiced fears that the Trump administration would leverage the roughly 75-day interregnum before the inauguration—which is the interval between the election of a new leader and his actual assumption of power—to contravene the will of the majority, abuse his final days of power, and erode democratic function

While four-year terms for the presidency derive directly from the executive powers enumerated in Article II of the Constitution, the transition of power between out-going and new leadership is left largely ambiguous in the Constitution’s text: the 20th Amendment to the Constitution, which passed in 1933, explicitly shortened the interregnum by calling for presidential terms to end at noon on January 20th, but beyond this, the Constitution and founding documents provide only a broad sketch of the procedures that govern transitions of executive power, largely leaving particulars to convention. 

It is the very fact that the interregnum is left procedurally vague in the law that creates the possibility, at least in theory, for the President to refuse to commit to a peaceful transition of power. That possibility, however, means that instead of honoring the will of the people, our Constitutional democracy paradoxically seems to allow out-bound presidents to do whatever they please. Indeed, this long and loosely regulated period is uniquely American and by no means a necessary ingredient of representative government: in England, a new Prime Minister enters 10 Downing Street within 24 hours of the last polls closing, precisely because a swift transition ensures that the people’s needs are met quickly and effectively. While many cite President Trump’s record of democratic abuses in voicing concerns about his last 75 days in power, his record is not the first to prompt a reexamination of whether the traditional constitutional outlines defining presidential transitions of power are sufficient to safeguard modern democratic needs. If smooth transitions serve the aims of democracy and the interests of the people, it seems reasonable to ask why our interregnum takes the shape that it does.

Although characteristically vague, the Founders designated the twilight interregnum zone as an essential feature of good democracies. For them, the interregnum was necessary not only to allow for the slow pace of transportation and communication, but also to ensure representative democracy through the electoral college: Americans select delegates and do not elect presidents directly, which at the time meant waiting months for electors to arrive in Washington. 

While these transportation concerns are now obsolete, the interregnum serves other fundamental democratic interests. The interregnum itself is a crucial step along the path of preparing a new president to serve as soon as his term begins. Over the course of the interregnum, an incoming president prepares policy and personnel to be able to act effectively on the first day in office, and the 75 days historically provided a new administration with the information necessary to make informed decisions. Like transportation, our ability to share enormous amounts of information in seconds renders this justification largely irrelevant to contemporary society, so, even before examining the potential harms of leaving the interregnum procedurally vague, it remains difficult to find an affirmative justification for continuing to build such a long delay into the electoral process.

One of the reasons the length of our interregnum may strike some as potentially undemocratic—or at least potentially harmful to the interests of the American people—is put best by Professor Sanford Levinson in Our Undemocratic Constitution: this 10-week hiatus period ensures that “repudiated presidents continue to possess all of the powers of their office.” Despite being explicitly voted out by the people, an outbound president retains relatively unchecked freedom to act, and any new policy directions supported by the majority are put on hold. While this is true of any executive transition, the nation witnessed a potentially harmful dimension of the interregnum play out in the transition from George Bush to President Obama: then-President-elect Obama’s inability to assume power—coupled with Bush’s temporal and personal inability to implement new policy—was particularly problematic because the nation was in crisis and neither leader felt confident taking the reins.

Despite remaining hampered in their abilities to act, that transition is surprisingly hailed one of the most neat, democratic, and professional handoffs alongside the transition from Ford and Carter. With multiple wars active abroad, an economic catastrophe, and growing threats of terrorism, special care was taken to expedite the process: both parties and Congress recognized the necessity of expediting the transition of power in times of crisis through early clearance processes and immediate information sharing. They knew that the interregnum, as outlined, was not sufficient to serve the needs of the people, because the speed and cooperation demanded by national crises were by no means required by the law. Even still, this coordinated effort to procedurally bolster the interregnum failed to change the reality that 75 days was not enough time for Bush to act and was too long for Obama’s response to stall. 

The fact that both parties to that transition made a concerted effort to cooperate and act quickly came from their mutual and acute awareness of the disastrous effects of stagnancy: in the famously slow and dysfunctional transition of power from Clinton to Bush, in which it was left unclear who would even assume power, Bush was largely able to ignore Clinton’s warnings about impending threats from al Qaeda. This delay, which was permitted and facilitated by the interregnum and our electoral procedures, thwarted the government’s ability to safeguard the interests of the people and ultimately somewhat disabled US counterterrorism efforts in the critical time before 9/11.  

That the interregnum interferes with the government’s efficacy in times of national peril is further corroborated by the fact that the 20th Amendment—which among other things abridged the presidential transition period by six weeks—was enacted in order to better serve a nation in crisis: amidst the Succession in 1860 before Lincoln could assume power in 1861, and the Great Depression’s international instability during the transition from Hoover to FDR in 1932, four month transitions had proven too long to protect the needs of the people. This “lame duck” Amendment was thus designed to counteract the diminished governing and democratic deadlock which, although characteristic of the interregnum, became potentially fatal in times of crisis. 

The sticky situation Obama found himself in given Russian interference in the 2016 election and his perceived inability to act despite a clear foreign threat to the sanctity of our democracy, speaks to the veritable lameness of an outgoing president. While an inability to express federal authority in times of crisis is problematic on its own, the interregnum can create a “cycle of inaction” prompted by the very institutional awkwardness that Obama grappled with in 2016. 

The absence of regulations or procedural objectivity that create this cycle also create pathways to abuses of power that can allow executives to thwart pressing national interests. So, although much of the speculation about what Trump might do in the interregnum is little more than emotionally-charged guesswork fueled by his own statements’ detachment from checks and balances, the structure of the interregnum simply allows government to operate in the shadows, providing the shade for outbound administrations to dabble in anything from distractions to elaborate cover-ups. As Elizabeth Kolbert put it in her New Yorker article, the interregnum is a time for rampant and unchecked “midnight regulations,” where administrations in their final hours issue thousands of executive orders which require little to no congressional approval. Thus, the possibility of an executive who intends to abuse power or disregard the needs of the people imbues the interregnum with a new dimension of potential harm. 

When many feel that abuses of power have come to be expected by the current administration, and national crises continue to play out through the pandemic, Trump’s failure to concede to the voice of the American people paints a frightening picture of the upcoming interregnum: whether a defeated Trump will pursue harmful policies unsupported by the electorate, the possibility for him to subvert the already flawed institution of the presidential transition and inflict harm on the American people in crisis is left almost entirely open by our founding documents. If an un-elected, but never-the-less sitting, president should want to withhold information critical to the new Administration’s ability to act on day one—and it is easy to imagine a churlish unwillingness of the Trump Administration to assist the Biden transition team—the roughly sketched procedures of the interregnum make it entirely permissible. 

Even if the transition were to be smooth, the interregnum mandates that Trump’s rejected and ineffective public health policies are allowed to persist as the norm of the nation until January. By then, however, some project 100,000 additional Covid-related deaths in the United States. So, while Biden’s promise of assembling an advisory team quickly and independent of Trump’s willingness to help is surely a step in the right direction, the new Administration will be unable to rescue the countless additional lives lost during the interregnum. Until Trump willingly concedes, the procedural limits of the interregnum will continue to deny Biden access to transitional funding which would help support his efforts to lead the country out of crisis. Whatever Trump might do, the interregnum openly accepts that the Trump-Biden transition will almost certainly create barriers and difficulties for a Biden Administration looking to quickly and effectively change the course of the pandemic and the country. Perhaps this time around—in the face of a pandemic and whatever misbehavior may be to come from the Trump administration—the aptly named lame-duck period will rightfully inspire Americans to take a harder look at reconfiguring transitions of power. It seems that further codification could fill in the procedural gaps surrounding the interregnum, so that instead of leaving open the possibility of harmful outcomes, this period would be designed to serve the current needs of the people quickly and effectively, under leadership that they have deemed fit for the task.

Photo: Image via Flickr (The National Guard)