All eyes are on the courts to see whether they will interfere with the election results under the guise of rectifying voter fraud, or delay things sufficiently such that multiple state legislatures find a way to step in and hand new Electoral College slates to President Donald Trump by December 8, the statutory deadline. Both options are extremely unlikely, which is very good news. In the meantime, however, the Trump administration is blocking the official transition process from proceeding.
There is an option for breaking the stalemate, and it must begin immediately: Congress should step in and perform its oversight function.
Speaker of the House Nancy Pelosi and Senate Minority Leader Chuck Schumer held a press conference today, focusing primarily on the out-of-control coronavirus. When asked about the transition lapse, Pelosi quoted former Vice President Dick Cheney, who in 2000 purportedly said of the delays occasioned by the recount in Florida, “We will pay a heavy price for delays in planning and assembling the administration.” Pelosi nonetheless distinguished President-elect Joe Biden’s dilemma, stating that “he knows the territory, so he’s gonna be just fine in the transition.”
Perhaps the Biden team has signaled to Pelosi that it doesn’t need Congress’s help in navigating Trump’s obstinance. But that’s not entirely Biden’s call. The American people are entitled to some action from their elected members of Congress, which is constitutionally charged with checking abuses in the executive branch.
[Richard L. Hasen: Trump needs three consecutive hail Mary passes]
Congress creates federal agencies by statute, pursuant to the necessary-and-proper clause. It gives them their authority and identifies their limits. Some have subpoena power, for example. Some have the power to promulgate regulations that operate like legislation. Others don’t. There are hundreds of agencies, each with its own powers and limitations, and the Supreme Court has been hawkish about Congress creating novel agencies that don’t follow traditional separation-of-powers norms. Federal courts also routinely reject agency actions that overstep legislatively endowed powers.
The General Services Administration is one of those congressional creations, and it’s pushing the scope of its authority. It controls the presidential transition, yet it is flatly refusing to do its job. Under the governing statute, the GSA administrator—Emily Murphy, a Trump appointee—is obliged to facilitate the transition of power to the president-elect by handing over millions of dollars appropriated by Congress, along with access to executive-branch personnel and information, once it is “apparent” who the winner is. With Biden’s overwhelming margins in swing states, the proper reading of “apparent”—to be “ascertained” by Murphy—is not ambiguous. Biden won. But so far, Murphy is pretending that she has discretion to ignore her statutory mandate at the direction of Trump.
Congress was clear and unequivocal in stating the purpose of the Presidential Transition Act of 1963: “The Congress declares it to be the purpose of this Act 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.” Congress went on to cite the “national interest” in ensuring “continuity in the faithful execution of the laws and in the conduct of the affairs of the Federal Government, both domestic and foreign.” And it added 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.”
That could very well happen now. As the coronavirus pandemic rages with record numbers of new daily infections and no meaningful federal response whatsoever, the White House has instructed federal agencies not to cooperate with Biden’s transition team. This means that as Biden’s people prepare to take over the sprawling federal government on January 20, they cannot discuss classified material, begin background checks for appointments that require top-secret clearances, access the $6.3 million that Congress appropriated for its use on behalf of the American people, and do whatever else they need to do to maximize the new president’s ability to address the pandemic. Pelosi’s pat assurances that things will work out are simply not good enough.
Democrats in the House sent a letter to Murphy demanding answers by November 11, a deadline that has come and gone. They should now initiate oversight hearings, with at least three objectives in mind: to inquire why Murphy is not executing her legislative obligation to facilitate the transition, to send a message that Congress backs Biden’s vital transition work for the sake of national security, and to show the public that Congress cares about constitutional norms and accountability.
[Read: What to expect next from Trump]
There’s recent precedent for congressional hearings without buy-in from Republicans. Over the summer, when Postmaster General Louis DeJoy, a major Republican donor and Trump appointee, made operational changes that slowed on-time delivery of mail by the Postal Service in the midst of a pandemic and the election season, Congress held hearings. No bipartisan legislation was passed. Nobody was held in contempt. No judge made a dispositive ruling. Hearings did the trick. The pressure of public opinion, as channeled through Congress, was enough, and DeJoy backed off.
Democrats also have an obligation to push back on the Republican fraud narrative, which has convinced eight out of 10 Republican voters that the election was tainted, and tipped the rest of the nation into ever greater anxiety.
To be sure, hearings would give Republicans a larger stage to claim fraud. But at this point, the stage has been theirs alone. There is no evidence of fraud, and skilled questioning of Murphy would quickly reveal the dishonesty of Trump’s efforts.
This is a job for Congress. Not the courts.
