Changing the Guard Without Guardrails: The Law and Ethics of Presidential Transitions

Abstract

Presidents-elect and presidential transition teams wield enormous power. During the two-and-a-half months between Election Day and inauguration, the incoming President nominates cabinet secretaries and interacts with foreign leaders, while the presidential transition team prepares executive orders and drafts the budget the next President will send to Congress. The decisions they make, and the ideas and culture they build during the transition period, follow them into the White House after inauguration. Presidential transitions lay the foundation for four (or eight) years of executive-branch governance. Despite their importance, presidential transitions have received almost no attention in the legal literature. This Note seeks to remedy that neglect by explicating the law of presidential transitions. And that law is sparse. Despite their similarities to the White House, presidential transitions are essentially ungoverned; the rules are largely left to the discretion of those bound by them. The asymmetry between thick presidential law and thin transition law creates significant governance and ethics risks, from conflicts of interest and foreign influence that infect policy-making to practices that strain the Constitution’s allocation of executive power. These risks are not just hypothetical: many of them were realized during the 2016 transition, and their effects continue to be felt years after the fact. After cataloging these problems, this Note concludes by suggesting several potential solutions to reform presidential transitions and create a body of law up to the task of governing this critical component of American government.