The presidential inauguration: Does the U.S. have a ‘lame duck’ in office for too long? | Pro/Con

On Jan. 20, Joe Biden will take the oath of office to become the 46th president of the United States. His inauguration will end the nearly three-month “lame duck” leadership of departing President Donald Trump. The length of the presidential transition has changed in U.S. history, and with a particularly contentious transition in which Trump has refused to concede, some Americans are revisiting the idea of moving up the inauguration date again to shorten the interim period.

The Inquirer asked a constitutional lawyer and a historian: Should the presidential inauguration and official transfer of power happen earlier than they do now?

By Michael Gerhardt

Albert Einstein once explained his theory of relativity as follows: An hour sitting with a nice girl on a park bench passes like a minute, but a minute sitting on a hot stove passes like an hour. The same is true of the time between Election Day and the presidential inauguration — the roughly 2½ months of transition is passing slowly for those eager for Trump to leave office, but too quickly for those who want more of Trump’s anti-Democratic rampage. The purpose of the transition period fixed in the Constitution — allowing a reasonable amount of time for elections to be settled and new presidents to prepare for office — has long been obscured by the political tugs-of-war between old and new administrations.

Originally, presidential inaugurations were set for March 4. In 1789, the framers figured that much time was needed for each state’s electors to meet and for Washington to receive news of their decisions, for Congress to certify the results, for incumbents to plan to leave office or start another term, and for new presidents to plan their transitions and moves to Washington.

But in the 1800 election, this period proved both too long and too short: It was not resolved until the 36th ballot in the House in favor of Thomas Jefferson, who had two weeks before inauguration to plan the transition. However, the lag then allowed incumbent John Adams to stack the federal judiciary against Jefferson’s regime. In 1860, President-elect Abraham Lincoln had sufficient time to consider the staffing and priorities of his new administration — but so too did incumbent James Buchanan to allow the threat of secession to fester unimpeded.

These were just some of the reasons why the 20th Amendment was adopted, moving the inauguration to Jan. 20 and thus allowing 76 days for transitions. Advancements in travel and communication justified the change. Yet even that amendment has not always achieved its purpose. In 2000, George W. Bush did not know he was president-elect until the Supreme Court made him so in mid-December 2000, roughly a month before his inauguration. Bush thought that much time was too short; it now seems too long for Trump to make trouble and too brief for Biden to prepare fully to govern.

“The refrain sounded every New Year — out with the old and in with the new — is a resolution we cannot just live by but should govern by.”

The long-term solution is to shorten the transition further. The rise of political parties, along with the transformation of their contests into tribal warfare, risks more harm than good. There is still too much opportunity for mischief, as Trump and die-hard supporters in Congress are showing, while, as Ronald Reagan and now Biden have demonstrated, transitional planning can happen well before the official transfer of power. The same dynamic is true for Congress — once elections are over, the time for new governance has begun.

Trimming the interim to a month is enough to settle elections, even close ones, plan transitions, and minimize mischief. And, for those who believe in democratic values such as majority rule, it gives new majorities a quicker chance to govern. This is especially helpful amid a crisis, such as a pandemic or war. The refrain sounded every New Year — out with the old and in with the new — is a resolution we cannot just live by but should govern by.

Michael Gerhardt is Burton Craige distinguished professor of jurisprudence at the University of North Carolina, served as special counsel to the Senate Judiciary Committee for the nominations of five of the nine Supreme Court justices, and is the author of several books, including the forthcoming “Lincoln’s Mentors: The Education of a Leader.”

By Kate Andersen Brower

What Americans are witnessing now, watching mouths agape as a sitting president refuses to concede, is an aberration — a historical blip. Of course one-term presidents, including Jimmy Carter and George H.W. Bush, felt the sting of defeat, but they shared information with their successors and put their allegiance to the country above their own egos.

Just because one man has decided to value his own ambition above our sacred tradition of a peaceful transfer of power does not mean that tradition should change. The date of the inauguration should stay right where it is.

President-elect Joe Biden says President Donald Trump has created “roadblocks” that have hindered his transition to the presidency. Communication with the Defense Department and the Office of Management and Budget has been especially difficult, he said this week.

“All of it makes it harder for our government to protect the American people,” Biden said.

The “hollowed out” foreign policy and national security institutions that Biden must now rebuild would not be bolstered by a shortened transition period. As would any president, Biden needs as much time as possible to make his cabinet nominations thoughtfully. These weighty decisions must be made before he takes office so he can tackle our country’s problems head-on.

“Let’s not look upon this year as anything other than a nerve-racking anomaly within a functional transition system.”

The handoff between Trump and Biden is the most contentious in American history. The only period resembling this level of animosity occurred in 1932, when Republican President Herbert Hoover lost in a landslide to Democrat Franklin Delano Roosevelt as the country was battered by the Great Depression. Hoover was a lame-duck president for four months, until FDR was sworn in on March 4, 1933. Jan. 20 was not established as the legal Inauguration Day until after the 1933 passage of the 20th Amendment, known as the “lame duck amendment.” The change was an acknowledgment that four months was too long and FDR needed to get to work sooner.

Before 1933 it was thought the winning candidate needed time to travel to Washington, move his family into the White House, and select a cabinet. Modern transportation made a dragged-out four-month lame-duck period increasingly unnecessary. So since FDR’s second inauguration, every presidential swearing-in has been held Jan. 20. This move more than eight decades ago is sufficient.

At noon on Jan. 20 power will shift to Biden, but not a moment before, concluding a peaceful transfer of power that is critically important to our national security.

» READ MORE: Biden’s inauguration will look different. Meet the Philly woman who’s helping plan it.

Sometimes, presidential transitions even lay the groundwork for post-presidential friendships. In 2009 the country faced the worst financial crisis since the Great Depression. George W. Bush understood that he needed to work closely with his successor, whoever that would be, given the depth of the crisis. Two months before the election Bush directed his Treasury secretary, Hank Paulson, to keep both Barack Obama and Republican presidential nominee John McCain up to date.

In his memoir A Promised Land, Obama praised Bush’s passage of the Troubled Asset Relief Program, which created a $700 billion emergency fund passed a month before the 2008 election.

“I disagreed with just about every one of George W. Bush’s major policy decisions,” Obama wrote, “but I’d come to like the man, finding him to be straightforward, disarming, and self-deprecating in his humor.”

Biden is unlikely to ever say the same about Trump. Let’s not look upon this year as anything other than a nerve-racking anomaly within a functional transition system.

Kate Andersen Brower is a historian and bestselling author. Her most recent books are “Exploring the White House: Inside America’s Most Famous Home,” a children’s book, and “Team of Five: The President’s Club in the Age of Trump.”

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