Powerful president tests legal system

 

Gordon L. Weil

President Donald Trump singled out Maine Gov. Janet Mills to ask if she would comply with his executive order on transgender athletes.

“I will obey state and federal law,” she replied. 

“Well, I’m ...We are the federal law,” he told her.

 “See you in court,” she replied.

Trump concluded that he would win easily and taunted Mills, suggesting she has no future in politics.

Contrast Trump’s remarks with John Adams’ 1780 definition of the American republic as “a government of laws, not of men.”  Adams was later the second president.

Trump’s view follows his earlier statement that “Article II [of the Constitution] allows me to do whatever I want.”  The president is redefining his role.  If that holds, then check and balances among Congress, the president and the courts are dead. 

The avalanche of executive orders issued by Trump has raised at least two major issues, and both will inevitably end up in court. 

Has the president taken on powers that, under the Constitution, belong to Congress? 

Can the president selectively veto congressional spending by closing or reducing federal agencies or programs through forced staff cuts?

Trump may be encouraged by two factors.  First, he won the election.  His representatives claim that the majority vote victory gave him a mandate to carry out every promise or proposal he had made in the campaign.   This electoral endorsement would amount to a sweeping legislative act, making irrelevant both Congress and the courts.

The other support for Trump’s assertion of power comes from the Supreme Court decision in Trump v. U.S., issued last year.  The Chief Justice, on behalf of the Court, wrote, “the system of separated powers designed by the Framers has always demanded an energetic, independent Executive.”  The Court’s ruling implied that the president could defy Congress.

Presidential executive orders might amount to federal legislation that ordinarily would be under congressional control.  If Congress is dominated by the president’s allies, his solo lawmaking may go unchallenged.  Historically, limits on presidential lawmaking have resulted from the president’s need to compromise with a skeptical Congress, but that’s missing these days.

In the end, presidents may be lawmakers, but Trump is not the law.  The Supreme Court long ago made itself the judge of what the law is.  It can decide that, while Trump could issue an order, it cannot violate the Constitution or existing laws.  Mills implied that Maine could prevail in Court, possibly because Trump had ignored the powers that states lawfully retain.

Acting mostly through Elon Musk, who holds a temporary government position, the Trump administration has tried to shut down the U.S. Agency for International Development and to terminate or reduce federal government programs.  These actions came swiftly, stunning both federal workers and the private sector.

Presidents may dismiss federal employees, provided they respect employee rights set by law or labor contracts.  Musk may be using his business practices to dismiss people under an approving president, but it is doubtful that the Court has yet allowed presidents to go as far with public employees as Musk demands.

These firings amount to an “item veto,” by which a president can block a portion of spending that has been ordered by law.  Trump is not alone among presidents in wanting to have this power.  This move is called rescission and for 50 years it has been banned by law.  President Bill Clinton tried it, and he was overruled.

Just as Republican state attorneys-general brought cases against Biden policies, Democratic AGs are now lodging many legal challenges to Trump.  The courts have begun acting and mostly trying to stick to the law. That means both Trump and his opponents can win procedural points, but the full story has just begun to be written.

Former Maine AG and Harvard Law School lecturer James Tierney claims that the state AGs play “a vital role” in challenging the president.  But, he says, they know that “Donald Trump is the President of the United States.  They are not going to sue their way out of it.”  Plus, congressional Republicans can continue to allow Trump unchecked power.

Trump’s treatment by the same Supreme Court that accepted his assertion of power will be the most important test. Will it impose any limits on his actions and Musk’s?  If it approves his moves and appears partisan, a constitutional crisis caused by his view of presidential power will have arrived.

If it overrules Trump, some of his supporters say the president should ignore unfavorable court decisions.  He should rely on the almost unlimited power given him by the voters in 2024.  If he disobeys the courts, that would also bring the ultimate crisis.

James Harrington, a British philosopher, wrote in 1656: “The empire of laws is concerned with right; the empire of men, with power.”  Which do American voters want?

 

Presidents’ Day missed the point; George Washington ignored

 

Gordon L. Weil

Presidents set precedents.  Or break them.

At this time of year, we celebrate Presidents’ Day, but officially it is Washington’s Birthday in honor of George Washington.  The abandonment of a patriotic memorial for a bland, commercial holiday leads me each year to write a column to recall the greatest president. 

As the first president, Washington understood that he would establish precedents and practices that could influence American history, perhaps for centuries. Having been offered the chance to be king, he chose instead to focus on developing democracy.  Asked to pick his title, the general selected “Mr. President.”

Today, many of his precedents continue, though they increasingly face challenges, not the least from Donald Trump, his latest successor.

The most well-known of Washington’s precedents was limiting his service to two terms.  Established in 1797 and only once challenged, this custom was enshrined in the Constitution.  It was a simple and direct statement that the U.S. wants no king.  Democracy is a greater good than the leadership of any person.  

When King George III, the British monarch who lost America, learned that Washington would voluntarily give up the presidency, he said, “If he does that, he will be the greatest man in the world.”

Upon leaving office, Washington set the precedent of an orderly transfer of power to his successor.  He understood that popular confidence in the American system of government depends on its reliable continuity.  Not only do elections have consequences, but consequences deserve respect.  That’s the fabric of the system.

Washington had chaired the negotiations on the Constitution, making him not only preeminent among the Framers, but an expert of the balance of powers within the federal government and between the federal government and the states.  He respected the leading role of Congress in making the laws, while emphasizing his own role as the chief executive.

He made it clear that he was in charge.  Executive orders began with him, but he did not use them as a substitute for legislation. He sent his own proposals to Congress, and he used the veto power.  He respected Congress and delivered the first State of the Union address in person.

In naming the heads of the executive departments and his Supreme Court appointments, he applied two standards.  Those named had to have shown high competence, and they should have already acquired a public reputation that would give them popular respect.

He saw the Court as the final judge of check and balances and believed that the justices had to be people of the highest standing with voters and have impeccable reputations.

Washington did not demand personal loyalty, though undoubtedly he received it.  He did require commitment to the constitutional system.  After all, he was leading the government of the United States not the government of George Washington.

Washington created the Cabinet.  The heads of departments would form a group of people to discuss proposed policies with him and one another.  There was no doubt that he would make the final decisions, but he did not let his self-esteem, as modest as he was, get in the way of listening to competing opinions.  He listened more than he talked.

The Cabinet was led by Thomas Jefferson and Alexander Hamilton, who were continually at odds, giving the president conflicting advice, which is just what he wanted. The key issue was the size and role of the federal government.

Washington favored a strong government, which he saw as necessary for the U.S. to prevent local uprisings.  He also favored the expansion westward of the country.  Jefferson sought an agrarian nation with weak federal powers and modest aspirations and quit the Cabinet.  As the third president, he ultimately adopted Washington’s views.

In his historic role, Washington wanted to conduct himself in ways that set a standard for his successors.  He remained open to contact with the public.  He met with foreign representatives both to impress upon them the growing power of the U.S. and to gain information from them.  Not surprisingly, the ex-general was the most active commander-in-chief in American history.

Possibly possessing the highest net worth in the country at the time, he did not flaunt his wealth. He put his business affairs entirely aside while he held office. Despite his international standing, surprising for the head of a new country, he avoided making claims to have special skills or talents.

Much of this history is forgotten.  To be sure, a state, a city, counties, and avenues are named for him, but he has become a two-dimensional figure, the portrait on the dollar bill.

Presidents’ Day has obscured the attention that Washington deserves.  What he did for the country could continue to serve as a model for his successors, if we took the trouble to remember.

 

Is Trump breaking the law?

 

Gordon L. Weil

“He violates international law.”  “It’s unconstitutional.”  “It’s against the law.”

That has become the usual response of opponents of new Trump-Musk public policies.  President Trump is accused of actions violating the laws he dislikes. Federal courts are already dealing with legal challenges to the Trump political whirlwind.  What are his chances of prevailing?

As for international law, it grows out of treaties and similar agreements among nations or their commonly observed customs.  Other than losers in war, countries seldom have international laws imposed on them without their consent. International law is somewhere between the law of the jungle and traditional national law.

An agreement like the U.S.-Canada-Mexico trade treaty or the NATO pact committing the U.S. to defend others create international law.  If the U.S. moves against other parties’ understandings of those accords, there’s no international court authorized to decide if it acted lawfully.  There’s a slim chance that a complaint might come before a U.S. court.

Enforcement of international law is mainly left to the other countries affected. They may accept a U.S. move, retaliate or simply quit the agreement.  Both sides may suffer from any of these actions.  If Canada or Mexico cannot afford to oppose Trump’s tariffs that override the trade accord, they may have to let him amend it unilaterally.

The U.S. has historically opposed international courts that could hold it accountable.  International law usually means whatever the American government says it does. If it can’t be held legally accountable, the greatest risk is that other nations will lose trust in the U.S.  If Trump doesn’t care, he could conclude the U.S. is immune from international law.

Under the American legal system, his actions can be judged to see if they are in line with the Constitution or federal law.  The final decision is up to the courts, and the federal government, the states and the people are supposed to abide by their rulings. 

What if the president and the executive branch use powers not given to them by the Constitution or Congress or, even more seriously, openly violate the law?  In the recent case of Trump v. the United States, the Supreme Court closed the door on any legal charges against a president except for a purely personal act.  And it gave itself the power to decide what is purely personal. 

That leaves the only potentially effective way to determine if a president has violated the Constitution or laws entirely in the hands of the courts and, ultimately, the Supreme Court.  If the Court finds a violation of law, the president is expected to comply, and government officials need not follow an illegal order.

Trump has raised some major matters that will undergo court tests.  The Supreme Court previously ruled that anybody born in the U.S., except children of foreign diplomats, is a citizen, but Trump has tried to block that rule for the children of illegal residents or visitors.  He may hope that Republican judicial appointees will back him, but so far that’s not happening.

Trump and Elon Musk are closing federal agencies, created and funded by Congress, by depleting or suspending their personnel. The Supreme Court has previously found that presidents cannot refuse to spend appropriated funds or operate agencies simply because they disagree with the law.  

Vice President JD Vance, trained as a lawyer, rejects court control. He maintains that judges should not overturn the “executive’s legitimate power.”

Trump-Musk might receive a negative court order and simply ignore it.  That’s what one federal judge has already found.

If Trump succeeds, possibly helped by judges he put on the bench, it’s questionable if there are any limits on what he may do.  The Court has already moved to overrule Congress and allow the “unitary” presidency, potentially giving Trump power over the regulatory agencies Congress created. 

Trump and the Supreme Court limit Congress, originally intended to be the leading federal institution.  The last remaining legal obstacle would be for Congress to impeach and convict him. With Republican majorities in both houses, that won’t happen. No president has ever been convicted.

The president is trying to transform the government.  He halts the application of some existing laws and governs by executive order, relying on what he sees as approval by the voters of his campaign promises.  If Vance is correct, the courts are political, not legal, agencies and cannot object.  

At stake now is more than the fate of any agency, program or personnel.  If neither Congress nor the Supreme Court limits the actions of the president, then nothing Trump does would be illegal.

Will the balance of powers among the three branches of the federal government survive or have the people chosen to abandon the checks and balances that the Constitution created in favor of an all-powerful president?

 

Trump turns government around

 

Gordon L. Weil

President Trump is the new captain of what Longfellow called the Ship of State.  He tries to turn the federal government around completely – and quickly.

Captain Trump’s moves to reverse course are both bold and dangerous, creating tests that the captain of any huge vessel might encounter by acting abruptly to completely change direction.  The ship itself could be endangered.

Here’s a few basics about turning a supertanker, the largest vessel afloat, though it is a lot smaller than the U.S. government.

Normally, the ship slows and swings in an arc to reverse direction.  That’s made more difficult with an entirely new crew.  The captain doesn’t steer the ship; the person at the helm does, and they may be given a free hand in how the course change is executed.  They should turn carefully or they could damage the rudder, which is used to steer the ship.

In making the maneuver, the ship is supposed to follow the rules for navigation.  That keeps the ship and other vessels safe.  A careful turn also allows people on board to adjust.

That’s how it is supposed to work at sea.  How is turning the country around being managed by Captain Trump?

Trump changes directions fast, and his commands are causing some immediate problems.  He does not want the government to slow down, so the U-turn is both abrupt and potentially dangerous.

The shipowners’ representative, the U.S. Congress, worries about the sudden course change, but Trump has begun operating the government in ways that may violate laws passed by Congress.  He risks being held to account by it at some point, which may explain why he wants to execute the change in direction as quickly as possible, while Congress is muddled.

He has placed Elon Musk at the helm, giving him broad authority over changing the direction of government. The new crew, many with little government knowledge, is recruited based on their loyalty to Trump.  Musk runs his own businesses as he wishes, but he lacks experience with the more complex federal government or following congressional requirements.

Musk has swung the helm so hard that some people have been tossed overboard, maybe his intention.  The person who operated the multi-trillion-dollar federal payment system independent of politics is such a casualty.  Entire executive agencies are being pushed overboard, breaking through congressional lifelines.  Musk’s private-sector crew acts without restraint.

Meanwhile, there’s turmoil on board.  Commands from the White House may miss operating realities and their full effect.  Trump ordered a halt to much federal spending without realizing that he had gone even beyond his own intentions.  When he issued the order, the ship shuddered. 

He rescinded his command, but the defunding may not have stopped.  A federal judge questioned whether the decision to cut spending is still in effect, even if the order has been recalled.  After all, this captain does not like to change his mind.

Not only does his swift course change violate international rules and U.S. treaties, but it can harm other countries.  Agreements exist to prevent conflicts, but the new American crew seems to dismiss treaties. Trump even changed the name of a major international waterway, calling it the “Gulf of America” without first talking with other nations using it.

Not yet having completed the change of course, Trump’s ship began lobbing missiles in the form of tariff threats at neighboring, traditionally friendly vessels.  He attacks Canada and Mexico and threatens Europe.  Inevitably, they would retaliate, while swerving away from the U.S., after a dangerous bluff that may cost America loyal allies.

Captain Trump not only wants to change the course of the U.S. government, but he wants to remodel the country itself.  Though his navigation correction may be short-sighted, he may also have long-range intentions for countries ranging from Panama to Denmark.  He has the absurd and insulting idea that Canada, a world player, can be reduced to becoming the 51^st state.

Just as was believed when the U.S. isolated itself after World War I, Trump believes that America’s power can control events worldwide.  Elected under the banner of “America First,” his message is translating into “America Most” at the expense of others.  He deploys tariffs, but doesn’t rule out the use of force. 

Just as before, this policy ignores the ability of other countries to change course, not always for the best.  His policy may turn into “America Alone” and the consequences are unknown.  The aftermath of the original “America First” was Pearl Harbor and World War II.

Even without planned globalism, nations have become interlinked over the last 80 years.  No matter Trump’s intentions, no single country can pull all others along in its wake.

But there’s even more at risk than overly aggressive Trump-Musk navigation. This rapid course correction could damage the rudder – the American political system. 

Trump uses power of purse to control states

 

Gordon L. Weil

Donald Trump promised that, if elected president, he would make big changes.  He claims to keep his promises, and he surely is keeping that one – and fast.  He interprets his win as the nation’s endorsement of massive change.  The speed and scope of his moves have stunned the country.

Among his lightning moves is one meant to reshape the relationship between his federal government and the states.  This could be huge, though it was not a prominent part of his package of promises.  Beyond using almost unlimited presidential power to remake the federal government in his own image, he also wants to bring the states into line.

Trump can pressure states, whether Democratic or Republican, to accept his priorities by using the power of the purse. If a state, especially one that has not backed him, wants federal funds that are doled out by his executive branch agencies, it might have to meet his conditions. 

Federal funds, appropriated by Congress for many programs, flow to all states.  Decisions on specific outlays under a federal program are left to individual states.  Each state can deal with its own problems in its own way and can be held responsible by its own voters.

Congress gives the president and executive agencies wide discretion in distributing the funds.  The agencies and their inspectors general are expected to make sure states spend the money as intended by Congress.  But last week Trump, jumping legal procedures, fired 18 independent, departmental inspectors general.

Visiting North Carolina, Trump promised federal aid to deal with hurricane impacts and extensive federal involvement in the recovery.  Then, in fire-stricken California, he conditioned federal emergency funds on changes to the state’s voter identification system and water management policies.

North Carolina backed him for president, while California remained loyally Democratic.  It looks like he rewarded one and punished the other.  About 42 percent of  the American population lives in Democratic states. While those states might resist Trump’s domestic policies, his administration could force them to follow his policies or lose federal funding.

Consistent with that approach, he proposed eliminating the Federal Emergency Management Agency and replacing it with direct grants to the states.  That way, states would assume lead responsibility for disasters.  They already have that role and FEMA supplements them, but his moves could give him political power over the states that FEMA can’t exercise.

Favored states might gain considerable freedom in spending federal aid.  To receive urgently needed support, Democratic states could be forced to adopt Trump’s policies, even if far removed from the intent of the funding, or lose out.

Kristi Noem, then governor of South Dakota and now Trump’s Homeland Security Secretary, provided the model.  She used a small part of Covid relief funds for state government costs and applied the balance at her discretion rather than helping people and companies that had suffered losses from the pandemic. 

She also refused federal funds, when she disagreed with Biden’s policies.  While Democratic states might similarly refuse Trump, they can’t afford to decline the massive aid necessary to meet enormous disasters.  California faces the choice between either accepting the president’s conditions or paying overwhelming emergency costs.

The problem with refusing the money is that California’s federal government contribution could go to other states, while it gets little.   It may have to raise state taxes for emergencies, while Trump’s elimination of FEMA may provide him with money he needs to extend costly federal tax cuts.

That’s how Congress does business.  States vie for as much money as they can get at the expense of other states.  After Sen. Susan Collins became the chair of the Senate Appropriations Committee, attention in Maine focused more on the added dollars she can bring home than on her increased ability to influence national priorities.

Maine gains large federal subsidies, being a winner like almost all small states.  Most small states are Republican, so that could work for Trump.  Collins is the sole GOP member of Congress from New England, so Republicans might want to help her with the state’s voters by meeting Maine’s needs with other people’s money.

Making states more dependent on the president and less able to act independently steps away from the original constitutional formula.  The states intended to cede limited powers to the federal government, but they have become its dependents.  This change plus the fading role of Congress, has increased presidential power.  Checks and balances don’t matter.

As much as Trump may wish that he could serve a third term, his use of presidential power and his reshaping the ways the federal government adopts and executes policies could extend his reach well beyond his current term.  Change has come.  His successors in either party are likely to accept and continue many precedents he is creating in the name of MAGA.

 

 

Foreign policy by threats has high cost

 

Gordon L. Weil

Donald Trump conducts foreign policy by threats.   If you don’t do as I demand, he implies, I will simply take you over.  Forget about pursuing traditional diplomacy with friendly nations.

Bullying may work on real estate competitors in New York City, where Trump gained his education in his father’s business, and the volatile world of local commerce allowed him to crush competitors.  

Real estate moguls may come and go, but sovereign nations tend to hang on tenaciously.  Look at Ukraine.  Still, you may dream of your place in history by expanding American territory.  Meanwhile, your diplomats can demand concessions from others by warning them about the president’s unpredictability if they don’t yield.

Trump’s threats may be false, but he uses intimidation as the shortest path to getting what he wants.  Beat up Denmark about Greenland, Panama about its canal and Canada for its supposed dependence on the U.S.  Even if his real goals are unknown, as the powerful leader of a powerful nation, he tries to pressure friendly nations to bend to his will.

In one aspect of this approach, Trump seems to believe that when one country sells more goods to another country, their margin represents a subsidy – getting something for nothing.  In fact, each country gets paid for its products.  It looks like the U.S. should always have a favorable trade balance with others and not “subsidize” anybody.

That policy doesn’t account for trade in services and cross-border investments. It also ignores the mutual benefits that can flow from trade, but measures only money and even that only partially.  It is virtually impossible for a country to have a neutral or favorable trade balance all the time with everybody else.

Trump’s remedy is to boost the prices of imports by imposing tariffs.  If foreign suppliers want to avoid being priced out of the market, they must swallow the tariff.  Otherwise, when tariffs boost their prices in the export market, domestic producers can raise both their prices and their sales.  Either foreign producers’ incomes are cut or American customers pay more or both.

Trump bullies Canada, which he claims without evidence that the U.S. “subsidizes” by $100 billion a year.  He threatens to raise tariffs on imports from Canada to cut the subsidy, and force it to increase its military spending and border controls. 

Trump’s crude and insulting solution is that Canada should become the 51st state.  One Canadian counters that Canada should absorb some U.S. states, including Maine.

Does the U.S. pay more to Canada than it receives? 

In 2023, the U.S. bought about $64 billion more goods from Canada than it sold there.  Canada paid $23 billion more for American services than flowed the other way.  That left a U.S. trade deficit of $41 billion.  But Canadian investment into the U.S. was $77 billion more than U.S. investment into Canada.  (There’s no U.S. foreign aid to Canada.) 

The net result was a favorable U.S. balance of payments with Canada.  Trump chooses to ignore the full facts, the essential details showing there’s no $100 billion “subsidy.”

Canada’s vast territory provides a protective buffer for the U.S., like the Atlantic and Pacific Oceans.  But it needs to boost its military spending.  Trump is right in saying it leans too much on the U.S.  And he has already succeeded in inducing increased Canadian border protection.

To accomplish his objectives, Trump has alienated many Canadians by devaluing their loyalty to their own country. You don’t have to be American to think your country is great. By insulting a close ally and its leaders, Trump may prevail on some current issues, while sacrificing a highly valuable partnership for the long term.

If Trump raises tariffs on Canadian goods, Canada has plans to retaliate dollar-for-dollar.  A trade war only leaves victims and no real winners.  It would harm the relationship for many years, reducing Canadian trust in its “neighbour” (even their spelling is different).  Trump dismisses cooperation to confront China, their common adversary. 

Does Trump really believe that Canada’s ten provinces would readily join the U.S. as a single state, and that Canada would simply drop its own national identity, foreign policy, health care system, gun control, and abortion law, just to avoid high American tariffs or confrontation with him?

Trump’s policy of “America First” must inevitably turn into “America Alone.”  Canada would focus increasingly on trade with other countries.  The European Union, which includes Denmark, might either build its own defense arrangements or see the rise of anti-American nationalism in countries there, leaving the U.S. with fewer reliable allies in either case.

Whatever may be gained by bullying rather than negotiating could come at the loss of long-term trust among allies.  That would be a high price to pay by the U.S., long after Trump’s “America First” has faded.

 

 

Trump ran parallel presidency as Biden faded

 

Gordon L. Weil

A change in the political system is happening, but we are paying little attention to it.

Donald Trump, an agent of political change, has challenged the belief that the U.S. can only have one president at a time. Since the election, he has operated a parallel presidency.

A formal transition process exists in law, allowing for the incoming president and his appointees to be subject to specific ethics rules, to use federal office space and to receive financial support.  They can become current on department policies and actions. But the president-elect does not have to accept this process.

While the incoming president is not bound by previous policies, awareness of the current administration’s latest moves could enhance the chances for a smooth transition. But Trump wants to symbolize change, and cooperation may not suit his image.  He spurns transition and acts as if he is already in the White House.

Three reasons stand out.  First, Trump has already served as president so he can hit the ground running, without needing a basic White House education.  Second, Trump will head probably the most personal presidency, relying less than usual on precedent and advice than on his own instincts.  Third, President Biden is fading, creating an opening for his successor.

Biden has readily let him dominate the scene.  His departing administration is cloaked in the aura of its defeat rather than pride in its principles.  His cabinet has melted away, failing to react to Trump’s assertions. Biden failed to make his presidency the promised bridge – a real transition.

Though Biden still uses his inherent powers to deal with disasters, pardon people and issue executive orders setting his parting benchmarks, Trump has taken over large pieces of foreign and domestic policy.  Biden’s cabinet and actions are overshadowed, if not downright ignored.

Few resist the need to deal with Trump’s upcoming presidency as if he were already in office.  From Republican House members to foreign leaders, they have sought to curry his favor and divert any possible concerns he has about them well before his ability to take office, beginning next week.

Trump has moved decisively to transform the period between Election Day and Inauguration Day.  The so-called lame duck government of that transition period has become almost a rare bird.  By his actions, rather than through a formal constitutional amendment, Trump is redefining the transition for the second time in American history.

Originally, the presidency and the new Congress began on March 4, following the previous year’s November elections.  Given slow communications and travel, the delay was necessary to allow for vote counting and the arrival of newly elected officials in the capital city.

The result was that a president who might be slated to leave office and the sitting Congress could remain in power for months even if they had suffered election defeats.  That lame duck period could allow a departing administration and Congress to push through policies that might already have been rejected by a majority of voters. 

Newly elected presidents and members of Congress waited their turn and prepared to take office. That had to change.

Following the 1932 elections, voters clearly demanded action by the federal government in dealing with the Great Depression.  They had become impatient with the transition.  President Franklin D. Roosevelt used the time to ready measures he could put in place rapidly once he took office – the famous first 100 days. 

The delay also brought the end of the long-legged lame duck.  Under a new law, Congress would begin on January 3 and the presidential term would start on January 20, dates now set in the Constitution.

Twenty years later, President Truman offered to provide intelligence briefings to President-elect Dwight Eisenhower.  Truman’s first move led to a formal transition process, which has been expanded under the law.  

Because it is voluntary, Trump refused its ethics requirement or to be fully informed on current administration actions.  He chose to make the break between administrations both disruptive and preemptive.  In effect, he has improperly moved the government from Washington to Mar-a-Lago.  He has led the alternate government, not the government in waiting.

The refusal of the incoming president to participate in a transition comes at a price, especially when it relates to foreign policy.  The failure of an incoming administration to exchange information on its foreign contacts or its attempts to blindside the incumbent can be harmful to the conduct of delicate and complex relations.

Trump has drastically shortened the transition, which may have been inevitable.  But he has also made a mockery of its useful aspects.  Transition should not be left to the president-elect’s choice. The country would be better served, without limiting the incoming president’s discretion, by making their full participation mandatory.

The U.S. really should have only one president at a time.