Published by The Lawfare Institute
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On Nov. 23—almost three weeks after Election Day, and two weeks after the press called the election in favor of the Democratic ticket—the presidential transition finally began with a letter from General Services Administrator Emily Murphy. Pressure had been building on Murphy after she refused to certify the transition following President-elect Joe Biden’s victory, a step that the General Services Administration (GSA) usually takes promptly following an undisputed presidential election in order to make government resources and information available to the victor. According to Murphy’s letter, she finally made the decision to unlock the resources to the Biden team “because of recent developments involving legal challenges and certifications of election results.”
The costs of a delayed transition are not just political. Business leaders warned that “[w]ithholding resources and vital information from an incoming administration puts the public and economic health and security of America at risk.” A statement from more than 100 Republican national security professionals found “significant risks to our national security” from the delay—particularly given the 9/11 Commission’s conclusion that the transition delay caused by election disputes in 2000 hampered the George W. Bush administration from recognizing and responding to the threat posed by al-Qaeda. With luck, the damage to the country in 2020 will not be as significant as in 2000.
In one sense, the delayed transition was a matter of political controversy that was appropriately resolved in the political sphere. Many assumed that any legal action on the part of the Biden team to accelerate the transition would have been ineffective, and the president-elect expressed reluctance to take any. In her letter, Murphy claimed the governing statute, the Presidential Transition Act of 1963, “had little to offer in the current case,” and that “’[u]nfortunately, the statute provides no procedures or standards for this process.” She urged Congress “to consider amendments to the Act.”
In light of the chaos of the past few weeks, changes to the Presidential Transition Act might well be in order. But are legal remedies really unavailable under the existing statute? In a future dispute, the Administrative Procedure Act (APA) provides tools that a winning candidate could use to force the hand of a reluctant GSA administrator. Any case would be an uphill battle, but it’s not one that should be dismissed out of hand.
There have been a number of instances throughout the Trump administration where norms proved to be unsupported by concrete authority. But the norm of a timely transition is not one of them. Any amendments to the Presidential Transition Act should take these potential claims into account and make use of what the Justice Department once described as the “statesmanship and wisdom” of the drafters of the APA.
The Presidential Transition Act and the Administrator’s Letter
The Transition Act was enacted “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.” It declares “the intent of the Congress that all officers of the Government” act “to take appropriate lawful steps to avoid or minimize disruptions that might be occasioned by the transfer of the executive power.”
The act provides that the GSA administrator “is authorized to provide, upon request, to each President-elect, each Vice-President-elect, ... necessary services and facilities” which include office space, salaries, and expenses. It also provides that “[t]he Administrator shall expend funds for the provision of services and facilities under this section” relating to expenses incurred by the president-elect and vice president-elect, during the period starting the day after the election and concluding 60 days after inauguration, and without a need for expense reimbursement requests. In other words, no receipts needed.
The Transition Act applies to a “President-elect” and “Vice-President-elect” which “shall 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 in accordance with [3 U.S.C. §§ 1-2].” As such, the administrator’s “ascertainment” is the key step to enable transition resources to flow. Prior to the release of Murphy’s letter, GSA stated, “An ascertainment has not yet been made.” The agency envisioned its task as to “ascertain the apparent successful candidate once a winner is clear based on the process laid out in the Constitution.” Reports indicated that Murphy was “said to be considering several mileposts that would give her a political comfort level in declaring Biden president-elect,” ranging from state certification to the Jan. 6 counting of electoral votes.
The administrator’s letter remains vague about the criteria actually used to reach this determination, referring to “recent developments involving legal challenges and certifications of election results” but also to precedent “involving legal challenges and incomplete counts.” The Washington Post reported Murphy’s feelings that “without a concession from Trump, she was hard-pressed to acknowledge Biden’s victory as the president demanded recounts and mounted legal challenges, and as battleground states had not yet certified their results.” Apparently, the two ultimate triggers were the failure of the president’s litigation in Pennsylvania and the certification of Michigan’s votes—but even before those two events, Murphy had informed the White House that she would be starting the transition on Nov. 23.
The letter does not use any of the key terms from the Transition Act, including “ascertained” or “apparently successful candidate,” nor does it refer to the president-elect by that title. But it is still effective to commence the transition. The act’s relevant language limits authorization of funding and services to “each President-elect” and “each Vice-President-elect,” defined as “such persons who are the apparent successful candidates” as “ascertained by the Administrator.” A 2000 Office of Legal Counsel memorandum, binding on the executive branch, determined there is only one president-elect at a time. By stating “I have determined that you may access the post-election resources and services described in Section 3 of the Act upon request,” the administrator necessarily made the required subsidiary findings.
But could this all have happened more quickly—and could a future president-elect have viable legal options?
Options Under the Administrative Procedure Act
Section 706(1) of the APA requires a court to order an agency to take action “unlawfully withheld” or “unreasonably delayed.” However, “a claim under § 706(1) can proceed only where a plaintiff asserts that an agency failed to take a discrete agency action that it is required to take.” A plaintiff cannot seek “general orders compelling compliance with broad statutory mandates.”
Because section 706(1) states a court “shall” compel agency action unlawfully withheld, a court should have no discretion as to whether to compel the action once it found unlawful delay. The other provision of section 706(1), relating to unreasonable delay, is less promising. Courts employ a vague “hexagonal”multi-factor standard known as the “TRAC factors.” Courts have been reluctant to order action under these factors even if an agency is acting at a “sluggish pace.”
An order compelling agency action has many attributes of an injunction, but it is rooted in common-law mandamus practice, rather than “the power of the Chancellor to do equity” when considering requests for extraordinary injunctive relief. Thus, the familiar four-part test for permanent injunctive relief does not apply. Rather, the U.S. Court of Appeals for the D.C. Circuit has characterized the appropriate relief—an order requiring action by an agency—as “the sort of mandate that courts commonly issue in final disposition of a case, pursuant to their authority to ‘compel agency action unlawfully withheld,’ 5 U.S.C. § 706(1).”
The duty that could have been alleged seems discrete enough: ascertain that Biden is the president-elect and thereby start the transition. A mandatory duty or requirement to act is hard to find, at least at first look. A “mandatory ‘shall,’ … normally creates an obligation impervious to judicial discretion.” . Examples of non-discretionary duties that courts will enforce include the Federal Records Act mandate that the National Archivist “shall request the Attorney General to initiate … an action” for redress of record destruction; a statute requiring “timber in an amount … not less than the annual sustained yield capacity … shall be sold annually”; or a regulatory “duty to warn.”
The Transition Act does not, however, have many of the kinds of “shalls” a 706(1) plaintiff would like to see. The cleanest is section 3(b), which provides the administrator “shall” spend funds regarding a particular period and in a particular manner. But is that really a mandatory duty, or is it more of a limitation? As the U.S. Court of Appeals for the Ninth Circuit observed, “when used in a statute that prospectively affects government action, ‘shall’ is sometimes the equivalent of ‘may.’” Similarly, the D.C. Circuit concluded language in the Clean Air Act requiring that the Environmental Protection Agency administrator “shall ‘take such measures, including issuance of an order, or seeking injunctive relief, as necessary’” did not create a mandatory duty.
Section 3(a) is no clearer, merely “authoriz[ing]” the GSA administrator to provide “necessary services and facilities” for “use in connection with the preparations for the assumption of official duties as President or Vice President.” Authorization is rarely—if ever—a command. And the definition in section 3(c), though it starts with “shall mean…the apparent successful candidates,” it is with the qualification “as ascertained by the Administrator.” The legislative history, to the extent it is informative, weighs against a finding of a mandatory duty. The chief proponent of the act, Florida Rep. Dante Fascrell, stated “if the administrator had any question in his mind, [he or she] simply would not make the designation in order to make the services available as provided by the act.”
Additionally, Section 3(a)(8)(A)(iv) of the act requires that transition activities “shall include the preparation of a detailed classified, compartmented summary by the relevant outgoing executive branch officials of specific operational threats to national security; major military or covert operations; and pending decisions on possible uses of military force.” And the act emphasizes the urgency of this task, directing that the summary “shall be provided to the President-elect as soon as possible after the date of the general elections held to determine the electors of President and Vice President.” Yet as with the rest of section 3, this still requires the ascertainment by the GSA that a candidate has triumphed in the election.
At times, agencies have been held to impose duties on themselves by statements in regulations, plans, or other binding actions, any of which can be enforced through section 706(1). The GSA’s own statements indicated it accepted an obligation to ascertain the apparent successful candidates “once a winner is clear.” While these statements may be helpful in interpreting the Transition Act, they seem sufficiently generalized and informal that courts would likely find them to be policy statements rather than binding regulations.
Following the 2000 presidential election, the GSA administrator did not determine that Bush was the apparent successful candidate until Dec. 14, the day after Vice President Gore conceded and two days after the Supreme Court’s decision in Bush v. Gore. Todd Zywicki, a law professor at George Mason University, has argued that the GSA administrator in 2000 lacked any discretion once the Florida secretary of state had certified Bush as the winner, even though litigation and contests were still ongoing. But in my view, the timing of an ascertainment is a practical rather than a formal standard.
The language of the Transition Act does not appear to impose a clear enough mandatory duty to bring a successful claim under Section 706(1) when the GSA Administrator fails to act.
Arbitrary and Capricious
However, section 706(2)(A) of the APA merits a closer look. This section instructs courts to “hold unlawful and set aside agency action, findings, and conclusions found to be … arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” In the classic formulation, agency action is arbitrary and capricious “if the agency has relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.” A decisionmaker is “required to consider the evidence and give reasons for [their] chosen course of action.” In sum, an agency “must cogently explain why it has exercised its discretion in a given manner.”
Ordinarily, this type of APA review is available only for “final agency action for which there is no other adequate remedy in a court.” It might seem that the issue at hand involves Murphy’s inaction, not action—after all, she merely declined to ascertain that President-elect Biden was the apparent successful candidate. But the GSA’s statements in the run-up to the certification, as well as press reports, indicated a decision had been made not to ascertain until some further event happened. For the period up to Nov. 23, the GSA made a final decision that Biden did not receive assistance. The decision would be final because it is both the “‘consummation’ of the agency’s decisionmaking process” at that time and one “from which ‘legal consequences will flow.’” And although the APA exempts from judicial review agency decisions “committed to agency discretion by law”, that exemption applies only in the rare instance that there is no meaningful standard to measure the agency’s discretion. Here, there are ample guidelines to judge the factual determination made by the Administrator.
This is no less final because of the short effective timeline. For similar reasons, an “interim” final rule can be considered a final agency action, where “‘Interim’ refers only to the Rule’s intended duration—not its tentative nature.” Finally it has long been the rule that “when administrative inaction has precisely the same impact on the rights of the parties as denial of relief, an agency cannot preclude judicial review by casting its decision in the form of inaction rather than in the form of an order denying relief.”
The merits would have presented substantial legal risk to the GSA administrator. The evidence that Biden was the apparently successful candidate was overwhelming. As Zywicki notes, the “apparently” qualifier accounts for situations where recounts or challenges unexpectedly change the outcome. No reasonable circumstance had been proposed where it could change. The bipartisan Center for Presidential Transition stated on Nov. 8 “the outcome is sufficiently clear that the transition process must now begin.”
The GSA’s statements prior to the ascertainment cited “precedent established by the Clinton administration in 2000” as one reason for the delay in finding Biden to be the apparent successful candidate. There are a number of reasons to be skeptical of this, both legally and practically. Legally, the ascertainment is much less important now than in 2000. Trump, as the incumbent, is ineligible under the Transition Act to receive transition assistance. In 2000, with no incumbent running, the ascertainment was a binary choice—especially once OLC advised that transition assistance could not be provided to two candidates at once. The political considerations were much more significant in 2000 as well, given that mere hundreds of votes separated the candidates in one pivotal state and the post-election proceedings were under close scrutiny. The 2020 election just wasn’t as close. Murphy’s letter presumably refers to 2000 when discussing “prior elections involving legal challenges and incomplete counts,” but this is strained. Unlike 2000, there was never a realistic probability that a recount would change the outcome. The margins of tens of thousands of votes in key states were not of the magnitude that recounts can reverse. Once the campaign attempted to throw out the votes of entire electorates, as in Pennsylvania, it quickly came to grief. The court felt compelled to state “[t]his is simply not how the Constitution works” and “[i]t is not in the power of this Court to violate the Constitution.”
To ascertain is to “discover with certainty, as through examination” or to “discover.” The Presidential Transition Act thus contemplates a factual examination, not a legal or political analysis. For this reason, the GSA’s statements that the agency couldn’t ascertain the apparent successful candidate were counter to the evidence—and subject to being overturned. As the Supreme Court decided in Motor Vehicles Manufacturers Association v. State Farm, it is not sufficient for an agency to merely recite the terms “substantial uncertainty” as a justification for its actions. The agency must explain the evidence which is available, and must offer a “rational connection between the facts found and the choice made.”
The GSA administrator’s bare references to the 2000 election, and to potential legal challenges, didn’t show this rationality. While APA review is deferential, a court cannot “defer to a void.” Nor is it “required to exhibit a naiveté from which ordinary citizens are free.”
What’s more, the administrator’s decision to wait until resolution of legal challenges and some certifications of results was also in tension with the Transition Act. The act states the apparent successful candidate will be ascertained “following the general elections held to determine the electors of President and Vice President in accordance with title 3, United States Code, sections 1 and 2.” These sections of the statute relate to the time for the general election, not the Dec.14 meeting of the electors or the Jan. 6 counting of the electoral votes, which are codified in 3 U.S.C. §§ 7 and 15. If Congress had wanted the GSA to wait that long, it could—and presumably would—have said so. Absent any serious prospect of a determinative election dispute, it appears the delay was contrary to law.
Ordinarily a court will remand determinations to the agency in a section 706(2)(A) case. But where the agency’s expertise is inapplicable, or “all of the legal questions” at issue are “settled,” a remand will be dispensed with. The APA also provides for interim relief, and preliminary injunctions are often issued in APA cases.
A straightforward APA claim under section 706(2)(A) appears the most promising avenue for litigation by an unrecognized president-elect, and has the advantage of focusing the court on the evidence of the electoral result.
What About Mandamus?
A writ of mandamus would be the traditional remedy to seek under such circumstances, but it may not add much to the APA claims. The Mandamus and Venue Act of 1962 gives the district courts “original jurisdiction of any action in the nature of mandamus to compel an officer or employee of the United States or any agency thereof to perform a duty owed to the plaintiff.” The All Writs Act further provides that “[t]he Supreme Court and all courts established by Act of Congress may issue all writs necessary or appropriate in aid of their respective jurisdictions.”
“A court may grant mandamus relief only if: (1) the plaintiff has a clear right to relief; (2) the defendant has a clear duty to act; and (3) there is no other adequate remedy available to plaintiff.” Mandamus is a “drastic” form of relief, “to be invoked only in extraordinary circumstances.” And even if the legal requirements are met, “a court may grant relief only when it finds compelling equitable grounds.” Although the statute need not be unambiguous, once the court interprets the statute, mandamus will lie only if the official has “a clear and indisputable duty” to act.
The APA will generally displace a mandamus claim by providing an adequate legal remedy. The statute “authorizes district courts to ‘compel agency action unlawfully withheld or unreasonably delayed’ without the need of a separate action seeking mandamus.” Section 706(1) will require a plaintiff to show “the agency’s legal obligation is so clearly set forth that it could traditionally have been enforced through a writ of mandamus.” Orders “in the nature of a writ of mandamus” have been long “employed to compel an administrative agency to act,” or “to compel an agency or officer to perform a ministerial or non-discretionary act.” Thus Section 706(1) “was apparently intended to codify these judicial functions.”
The potential for mandamus relief doesn’t appear to offer much beyond the APA rights of review. It would be most useful as a backup in the event that the court determined there was no final agency action. For example, allegations that EPA was improperly destroying records in violation of the Federal Records Act and APA were found to state a claim for mandamus where the extent of APA coverage was unclear.
Although litigation by a candidate could be used to trigger a transition, the Transition Act could easily be revised to avoid future impasses. Putting further guidelines on ascertainment is one possibility. Perhaps the apparently successful candidate could be the one projected to win by the Associated Press and major television networks. But which networks, and how many of them? Alternatively, there could be guidance regarding the number of states that have certified their results, but that would not accelerate the ascertainment any further than in 2020. Where one candidate has not conceded, there are few practical benchmarks that don’t simply rely on the agency’s common sense.
A more promising avenue may be to lower the bar for transition funding and assistance. If the definition of president-elect were changed to such person as “is substantially likely to be the apparent successful candidate,” along with clarifying that transition assistance is available to multiple candidates in a close election, this would greatly reduce the stakes of the ascertainment. With a lower threshold, a deadline of perhaps one week after the election would be workable.
Additionally, a provision for expedited judicial review could be included, so a logjam could be broken without the need to jump through as many procedural hoops. One example is the statute regarding border wall construction, which requires challenges to be brought within 60 days and provides for direct review by the Supreme Court of the district court’s judgment.
Though the path is neither straight nor narrow, the APA offers a potential avenue toward resolution of transition quandaries. But this circumstance shows the transition framework has gaps that need to be addressed by Congress, sooner rather than later.