A transition in apparent disarray

I have always been a textualist when it comes to the interpretation of statutes. I learned at the feet of the master, Justice Antonin Scalia.

So the other day I took a deep dive into the 57-year-old Presidential Transition Act, the declared purpose of which is “to promote the orderly transfer of the executive power in connection with the expiration of the term of office of a President and the inauguration of a new President.”

The Act on its face recognizes that any “disruption occasioned by the transfer of the executive power could produce results detrimental to the safety and well-being of the United States and its people,” and that the “national interest requires that such transitions in the office of President be accomplished so as to ensure continuity in the faithful execution of the laws and in the conduct of the affairs of the Federal Government, both domestic and foreign.”

It authorizes the administrator of General Services Administration (GSA) to provide necessary support services and facilities to the president-elect and the vice-president-elect so they may assume their responsibilities. It would be irrational to give the words “disruption,” “transfer of the executive power,” “national interest” or “results detrimental to the safety and well-being of the United States and its people” anything other than their classical interpretation.

But who are the president-elect and the vice-president-elect after a close and hotly contested election? The statute makes this clear as well. The terms “mean such persons as are the apparent successful candidates for the office of President and Vice President, respectively, as ascertained by the Administrator following the general elections held to determine the electors of President and Vice President.”

Emily Murphy, the Trump-appointed administrator of the GSA, an executive branch agency, says she has not reached a decision as to who are the apparently successful candidates.

But the statute does not give Murphy discretion to call the election. She is a bureaucrat, not a statistician or a vote counter. She is a lawyer. But had Congress wanted to appoint her “vote counter in chief,” it would have done so within the boundaries of the Constitution. But it could not have done. Under the Constitution, the administration of the federal elections is supposed to be accomplished by the states. It is not difficult to ascertain who were the “apparent successful candidates.” The operative word is “apparent.”

Not one major news organization has concluded that President Trump won the election. Every last one of them has proclaimed that Trump lost and Biden won, indeed by wider margins than Trump enjoyed when he defeated Hillary Clinton in 2016. Many Leaders from around the world, with some notable exceptions, have congratulated Biden on his apparent victory. If it is good enough for Boris Johnson, Angela Merkel, Bibi Netanyahu and Recep Tayyip Erdogan, it should be good enough for Emily Murphy.

Understandably, the Biden-Harris team wants to hit the ground running and have an orderly transition, as Congress plainly declared. The GSA determination gives the green light for millions of dollars to pour into the coffers of Biden’s transition team so it can vet proposed appointments, hire necessary staff, plan national security and intelligence policy and accomplish a smooth transition. National security hangs very much in the balance. The GSA dragged its feet in 2000 when George W. Bush and Al Gore were separated by 537 votes in Florida. According to the 9/11 Commission Report, the truncated transition contributed to the nation’s unpreparedness for the catastrophe. The Report noted:

“[T]he 36-day delay cut in half the normal transition period. Given that a presidential election in the United States brings wholesale change in personnel, this loss of time hampered the new administration in identifying, recruiting, clearing, and obtaining Senate confirmation of key appointees.”

Of course, Biden is ahead by many thousands of votes in many of the key states, and by over five million in the popular vote.

Emily Murphy is not supposed to make political decisions. She is only supposed to “ascertain” the “apparent” winners, which is a ministerial act. If she doesn’t ascertain very soon that Biden and Harris are the “apparent” winners, the apparent winners should take her to court.

James D Zirin, a lawyer and former prosecutor, is the author of “Plaintiff in Chief-A Portrait of Donald Trump in 3500 Lawsuits.”