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Important Legal Aspect of the 2016 Election That No One Is Talking About


Donald Trump via Andrew Cline and Shutterstock, Hillary Clinton via a katz and ShutterstockFor all Donald Trump’s griping about media bias against him, he’s completely missing an opportunity to point out actual examples of media ineptitude.  This week, I’ve heard many a television pundit criticize Hillary Clinton‘s audacity in aggressively preparing to transition into her new role as Madam President before the election is hers to claim.  The hype full of faux-outrage is nothing more than media-manufactured hot air.

Yes, both candidates are preparing for their transition into the White House. They have to do that. It’s required by law. In March of 2016, the Presidential Transitions Improvements Act of 2015 (“PTIA”) became law. And before anyone starts whining about how it’s some other Obama-era piece of trickery, the PTIA was a bipartisan amendment to the original Presidential Transition Act, which has been on the books since 1963.

PTIA aims to effectuate harmony and efficiency during the transition process from one presidential administration to the next. Taking a look at the text of the law, it actually seems to be the result of a rare moment of Congressional efficacy. Some important provisions in PTIA include the following:

  • The outgoing president must create a White House Transition Coordinating Council and Agency Transition Directors Council in May of the election year. The councils are expected to communicate with each other and help federal agencies successfully survive the presidential transition.
  • Agencies themselves must start planning for the transition no later than May, and each agency must designate someone to oversee the process.
  • The outgoing administration must negotiate a memorandum of understanding with the transition team of each presidential candidate by November 1 to ensure access to agency personnel, facilities and documents.
  • The General Services Administration (“GSA”), the agency that manages and support the basic functioning of all the other federal agencies, has an active role in helping ensure an effective transition.
  • In the event that an election is contested, the GSA continues to provide services to each candidate until a winner is named.

In fact, an entire nonprofit organization exists for the sole purpose of strengthening America by strengthening the transition process.

The Partnership for Public Service‘s Center for Presidential Transition (“The Center”) is a nonpartisan, nonprofit organization that aims to lubricate the easily-stalled machine of American government. The Center specifically assists with the transition between presidents to maximize efficiency and effectiveness. And the Center’s work is not vague or arm’s-length; rather, the professionals and experts that comprise this group are working directly with transition teams from both the Clinton and Trump campaigns. In fact, the Center has been working closely with all the candidates– since the time there were far more than two of them back before the primary elections.

I had the opportunity to speak with David Eagles, the Director of the Center for Presidential Transition. His report was a refreshing stand-out against what has become an expansive backdrop of disgust with both candidates. Mr. Eagles, who is working extensively and directly, (and, often, simultaneously) with both candidates’ transition teams, had the following to say:

“A few things were surprising:  both teams were very committed to staffing up early, creating effective teams, and preparing to govern the country.  We’re seeing a recognition of the importance of governing, as they’re doing this parallel with their campaigning.  Both teams are committed to handling this transition process well.”

Effective transition is not simply convenient; it’s critical to American safety. Prior to 9/11, each administration handled its transition differently, largely navigating the process on its own. But the George W. Bush administration found itself governing a world different from the one which had elected it; as a result, it wisely started planning the transition earlier than usual. Insiders tout the Bush-to-Obama handoff as the most successful transition in American history. Realization that a smooth changing of the guard meant a less vulnerable America bumped transition to the top of the priority list.

How are the current candidates doing with their transition planning?

By all accounts, they’re both doing quite well. Donald Trump has appointed New Jersey Governor Chris Christie as the leader of his transition team. One might wonder where Governor Christie is finding the time to plan for presidential succession while also planning for his own uncertain future (this week, former Christie Aide Bridget Anne Kelly continues her testimony in the infamous “Bridgegate” traffic scandal). Nonetheless, the Trump team is leaving behind its characteristic isolationism and cooperating with the transition process. Hillary Clinton’s transition team is chaired by former Secretary of the Interior Ken Salazar. And while many might imagine Mrs. Clinton as simply strolling back into a White House as if she’d never left, her team is also working tirelessly to effectuate a seamless changeover.

It’s a fascinating exercise to try and reconcile the image of Clinton and Trump refusing avoiding a debate-stage handshake, while their respective teams are hunkered down in GSA-provided office space, attending transition school together down in DC. For both teams, though, this is a special slice of time. And as David Eagles pointed out, it’s the only time when would-be presidents have the luxury of planning their respective governments.  Mr. Eagles explained:

“It’s too difficult to fix the airplane while you’re flying.  [Transition planning] is the greatest opportunity to make government more effective. The Clinton and Trump teams are recognizing the importance of having this time to plan.  Both teams are not just committed but are thoughtful. They have to be ready to govern on the first day. I feel very confident that whichever team is successful, that they will be effective through the formal transition process.”

Why should everyday Americans care about the process of presidential transition?

In an election year, question of how a president will accomplish his or her goals isn’t nearly as sexy as which goals a potential president will seek. Still, a president that hasn’t planned properly will lack the means to deliver what he or she has promised. A presidency functions like so many other things in life: failure to plan usually amounts to planning to fail. As Mr. Eagle put it, “We should judge these candidates not just on promises, but also on their ability to execute those promises.”

An incoming president faces the responsibility of appointing over 4,000 professionals to federal posts, over a quarter of which require Senate confirmation.   Without minimizing the importance of filling Justice Scalia’s Supreme Court seat, it’s hardly an exaggeration to say that the American public is seriously missing the boat by focusing on only one presidential appointment while ignoring thousands of others.

Mr. Eagles elaborated:

“Presidents have historically gotten less than 1/3 of their people into office in the first year. With the kind of smooth transition we are helping to plan, we’re hoping to see greater numbers of appointees coming in quicker, and more fully-formed implementation plans that are focused on enabling the promises the candidates made while campaigning.”

Mr. Eagles’ non-partisan prediction of efficiency may be the breath of optimism we’ve been craving ever since Donald Trump hinted that he might not accept the results of a Clinton victory. He continued, “When it comes to government whether you want it big, or you want it small — you want it to work well. I firmly believe that it’s this time that these teams have to do it, There’s really no other time.”

Follow Elura on Twitter @elurananos

This is an opinion piece. The views expressed in this article are those of just the author.

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Elura is a columnist and trial analyst for Law & Crime. Elura is also a former civil prosecutor for NYC's Administration for Children's Services, the CEO of Lawyer Up, and the author of How To Talk To Your Lawyer and the Legalese-to-English series. Follow Elura on Twitter @elurananos