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Appointing advisers no fast task—A Commentary by Jack M. Balkin

The following commentary was published in the Atlanta Journal Constitution on November 26, 2008.

Appointing advisers no fast task
By Jack M. Balkin

The constitutional period of transition between election and inauguration makes good sense. If there is a problem with the length of the transition, the solution does not require a constitutional amendment; the president and Congress can easily work around it.

In the original 1787 Constitution, the president did not take office until the March following the election. In the 20th Amendment this was changed to January. Perhaps the original reason for the gap was partly due to the difficulty of travel conditions, but this has little relevance today.

Ironically, a transition period makes more sense today than it did in 1787 because the federal government — and in particular the executive branch — has gotten much larger. Newly elected presidents must appoint a very large number of people in order to begin the work of governing. The Clinton administration famously took its time filling key positions, particularly White House staff and advisers, and this probably affected its first-term performance. The Obama team has wisely focused first on filling White House positions and then moved on to Cabinet slots. For all we can tell, the Obama transition is quite efficient, but even an efficient process takes lots of time when there are so many positions to fill.

Moreover, in today’s world it is necessary to vet every candidate more thoroughly than before. This takes enormous time and effort. Indeed, one needs to put together a significant apparatus just to stage a presidential transition. With the size of the executive branch, and the need to vet everyone thoroughly, two-and-a-half months may be cutting it close.

If anything is to blame for this, it is not the hard-wired Constitution, but rather the growth of the administrative state (including the growth of the defense and intelligence services) and the increasing power of media to derail candidacies that are insufficiently vetted.

But don’t we face a problem if the president-elect cannot act during a crisis that occurs during an election and the inauguration? Perhaps. But if there is a problem, there is nothing in the Constitution that prevents a new president from taking action.

Political reasons may cause presidents-elect from publicly inserting themselves into everyday decision making until they officially take office. Herbert Hoover begged Franklin Roosevelt to join him in declaring a bank holiday during Hoover’s last days in office. Roosevelt refused, and promptly called one shortly after he was inaugurated. The reasons were not constitutional but political. Roosevelt didn’t want to be associated with Hoover and Hoover’s policies, especially if the bank holiday failed. And if the bank holiday was a success, Roosevelt wanted all the credit. When there is a change of parties, new presidents may be particularly interested in freeing themselves from the perceived influence of the previous administration. Hence, the new president may want to influence matters behind the scenes (and nothing in the Constitution stops him from making such suggestions) but not take public responsibility for actions and decisions made during the current president’s watch.

If the country thinks it necessary to hand off executive authority to the president-elect during a transition — for example, because of a crisis — there are plenty of legislative solutions. Through the normal advice-and-consent process the sitting president and Congress can appoint the president-elect to the president’s Cabinet or make him a high White House official. Indeed, the president can appoint him to a White House position that does not require confirmation.

Finally, under the 25th Amendment, the sitting vice president can resign, and by vote of Congress the president-elect can become vice president. In each of these cases, the president-elect can be clothed with the power of the executive branch and, with the cooperation of the existing president, make all the important decisions necessary to deal with the crisis.

Jack Balkin is Knight Professor of Constitutional Law and the First Amendment at Yale Law School in New Haven, Conn.