January 2021 Law Wise

LAW WISE

PUBLISHED BY

JANUARY 2021 • ISSUE 3

Coordinators:

ethany J. Roberts, Chair, LRE Committee; B Lisa Leroux-Smith, Public Services Director; Nicolas Shump, Law Wise Editor; & Patti Van Slyke, Journal Editor

Greetings from the Kansas Bar Association (KBA).

Welcome to this third edition of Law Wise for the 2020-2021 school year.

IN THIS ISSUE Presidential Transition Overview...................... 1 The Origins of Presidential Transitions.............. 2 The Process of Presidential Transitions............... 3 Difficult Transitions of Power............................ 4 Leadership Transitions Around the World.......... 6 Presidential Transitions Terrific Technology for Teachers.......................................................... 7 First 100 Days Lesson Plan.............................. 9 Cabinet-Building Lesson Plan.......................... 10 Editor Bio and Contact Info............................. 11

Presidential Transition Overview

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eaceful transitions of power from one presidential administration to the next remains one of the hallmarks of American democracy since the initial transition from George Washington to John Adams over two hundred years ago. Though there have been contested and contentious elections in United States history, Constitutional guidelines and subsequent legislation have ensured relatively smooth transitions.

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This issue will explore the Constitutional origins of presidential transitions with particular attention to the Presidential Transition Act of 1963 (PTA) and related legislation that has continued to refine the legislative and governmental processes related to the issue of presidential transitions.

Other topics will include a brief look at some of the more historically important presidential transitions, a comparative look at leadership transitions internationally, as well as a look to the future of presidential transitions in American history and politics.

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The Origins of Presidential Transitions

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hough the founders declared their independence from King George and Great Britain in 1776, the first presidential transition under the U.S. Constitution did not take place until 1797 when George Washington retired, and his Vice-President John Adams took office. Like many political processes early in American history, no precedent or tradition existed until this initial act.

Historians note that John Hanson could be considered the first U.S. President since he served as the first President of the United States Congress Assembled under the Articles of Confederation. Seven other men served one-year terms after Hanson. However, Hanson and his fellow presidents served in a mostly ceremonial position as the Articles of Confederation purposely did not grant broad executive powers to those individuals who held this office. Hanson’s lasting legacy remains the establishment of Thanksgiving as holiday on the fourth Thursday in November. In fact, the lack of a strong chief executive became one of the many weaknesses of the Articles, which lead to the writing of the U.S. Constitution.

After George Washington chose to return home to his Virginia farm after serving two terms in office, John Adams and Thomas Jefferson both ran for the vacant presidency. By this time, the first political parties had emerged within the cabinet established by Washington. Adams and Alexander Hamilton, Washington’s Treasury Secretary, formed the Federalist Party, while Thomas Jefferson, Washington’s Secretary of State, formed the Democratic-Republican Party with fellow Virginian James Madison.

With the election of Thomas Jefferson, for the first time, the United States had a presidential transition from one party to another. Before leaving office, Adams made some judicial appointments including the appointment of John Marshall as Chief Justice of the Supreme Court. Additional judicial appointments resulted in the landmark Marbury v. Madison (1803) Supreme Court decision that established the power of judicial review for the Supreme Court. Given the bitter nature of the campaign between Adams and Jefferson, Adams chose not to attend Jefferson’s inauguration. Ultimately, despite their differences, John Adams did provide for a peaceful transition of power to Thomas Jefferson. As the contemporary writer and memoirist Margaret Bayard Smith wrote, I have this morning witnessed one of the most interesting scenes, a free people can ever witness. The changes of administration, which in every government and in every age have most generally been epochs of confusion, villainy and bloodshed, in this our happy country take place without any species of distraction, or disorder.

This tradition has continued for over two hundred years and remains a powerful symbol of American democracy and the rule of law.

Not anticipating the development of political parties, Article II, Section 1 of the Constitution stated the candidate with the most votes would be president and the candidate with the second most votes would be vice-president. In 1797, this resulted in John Adams winning the election and his electoral opponent Thomas Jefferson serving as vice-president.

Four years later, both candidates ran for the presidency, this time with Jefferson winning the election and presidency.

Though Adams ran as the incumbent, he faced opposition from his own party as Alexander Hamilton urged Federalists to support Adams’ running mate, Charles Coteworth Pinckney. This resulted in Adams and Pinckney losing the election, while Jefferson and Aaron Burr received the same number of electoral votes. As mandated by the Constitution, the vote now went to the House of Representatives where Jefferson won on the 36th ballot. The 12th Amendment ratified in 1804 called for separate electoral counting for the president and vice-president.

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The Process of Presidential Transitions

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hen George Washington assumed the helm of the American government as the first president under the new U.S. Constitution, much remained unknown about how this experiment in democracy would go. When President Washington left office after two terms, every subsequent American president followed his example until Franklin Delano Roosevelt assumed office in 1932 for the first of his three full terms and the brief start of his fourth before his death in 1944. However, from the regulations and processes written in the Constitution to subsequent legislation, the process for presidential elections and transitions has continued to evolve over the course of American history.

Article II, Section 1 of the U.S. Constitution Not surprisingly, the original Constitution had little to say about how government would change hands after a president’s retirement or electoral defeat. Article II, Section 1 mandated that electors would meet in their respective states to cast ballots for two candidates. Then the President of the Senate, the Vice-President, would open these ballots and count them. The candidate with the most votes would be elected President, unless there were two candidates with an equal number of votes.

This scenario occurred in the Election of 1800 when Thomas Jefferson and Aaron Burr received the exact same number of votes. In this situation, the election goes to the House of Rep-

resentatives to determine who will become president. In this same Section 1 there are instructions for the election of the Vice-President. If there is a clear winner for the Presidency, the candidate with the next highest number of electoral votes will become Vice-President. If there is a tie for this position, the Senate will choose the Vice-President.

12th Amendment of the U.S. Constitution After the election of 1800 controversy, Congress passed the 12th Amendment. In this Amendment, electors had to cast separate votes for the President and the Vice-President. In the event of an electoral tie, each state delegation in the House of Representatives had one vote to cast for the Presidency. Twothirds of the eligible delegations had to cast a vote. Once again with a tied Vice-Presidential election, each Senator would cast a ballot for this position and two-thirds of the Senate would cast a vote. This amendment set the date for the end of a presidential administration to March 4.

20th Amendment of the U.S. Constitution This Amendment changed the end of the terms of the Presidency from March 4 to January 20. Section 3 of this amendment states “the Congress may by law provide for the case wherein neither a President-elect nor a Vice President shall

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have qualified, declaring who shall then act as president, or the manner in which one who is to act shall be selected, and such person shall act accordingly until a president or vice president shall have qualified.”

• Requires outgoing executive branch officials to provide the president-elect with a detailed classified, compartmented summary of specific threats to national security as soon as possible after the date of the general election.

Presidential Transition Act of 1963

• Expresses the sense of the senate that the senate should give expedited consideration to national security officials nominated by a president-elect.

As noted at the beginning of this legislation, the Presidential Transition Act served: “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.” The Act designated an administrator to provide office space, funds for staff, outside experts and consultants, travel, and communication resources to the “president-elect” once the administrator ascertains who has won the election. It also allocates services and facilities for the outgoing president and vice-president.

Presidential Transition Act of 2000

• Provides for expedited security clearance determinations for members of a president-elect’s transition team.

Pre-Election Presidential Transition Act of 2010 This Act provided for the General Services Administration to provide logistical and financial support to eligible presidential and vice-presidential candidates prior to the general election.

Presidential Transitions Improvements Act of 2015

This Act offers some amendments to the earlier 1963 legislation to have the administrator pay expenses to incoming presidential cabinet appointees during the transition period.

Intelligence Reform and Terrorism Prevention Act of 2004

This act directed the GSA to establish a White House transition coordinating council and an agency transitions director council consisting of senior career employees from the various federal agencies.

Presidential Transition Enhancement Act of 2019

Though not primarily concerned with presidential transitions, in response to the 9/11 Commission Report that noted the abbreviated transition resulting from the 2000 election, made the following provisions and recommendations:

In addition to extending the period of GSA support for the incoming president and vice-president, this act requires the GSA to enter into a Memorandum of Understanding (MOU) with eligible candidates regarding the administrative support and facilities available during the transition.

Difficult Transitions of Power

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hroughout American history and politics, most presidential transitions have been uneventful, although at particular points in time, some transitions held the possibility for conflict, if not the potential for civil war. The fact that violence did not take place is another testament to the strength of the American system of governance.

The Election of 1800 The election of 1800 in which Thomas Jefferson and his Democratic-Republican Party defeated the incumbent John Adams and his Federalist Party served as the first election that might have created enough political instability to threaten the relatively new American republic. Adams and his running mate Charles Coteworth Pinckney finished third and fourth in the Electoral College while Thomas Jefferson and Aaron Burr received the same number of electoral votes. Since neither Burr nor Jefferson had earned a majority within the Electoral College, the decision now rested with the House of Representatives.

According to the Constitution, each state delegation had one vote. With 16 delegations, the winning candidate needed to earn nine of these votes. In 1801, the Democratic-Republican Party controlled eight delegations, the Federalists held six, and two delegations were evenly split. The Federalists favored Burr over Jefferson. For six days, the Representatives slept on cots and had meals brought into the chamber. The possibility that the Federalists might deprive Thomas Jefferson of the presidency had some Republicans nearly up in arms. Pennsylvania Republican John Beckley warned such a result would mark “the first day of revolution and Civil War.” Republican governors in Pennsylvania and Virginia made plans to mobilize their state militias to install Jefferson as President. Others considered the possibility of calling a convention to rewrite the Constitution to their favor. Finally, on the 36th ballot, Federalist delegates from Delaware, Maryland, and Vermont abstained which allowed Jefferson to control 10 delegations and to win the election.

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Election of 1860

Election of 2000

While the Election of 1800 threatened to plunge the United States into a civil war, the election of 1860 actually did. Within a month of Abraham Lincoln securing enough electoral votes to win the presidency, South Carolina voted to secede from the Union. Six other southern states joined South Carolina within a short period of time. Outgoing President James Buchanan did not support the actions of those southern states but did not offer any solution to this brewing crisis. Political leaders including former President John Tyler convened what was known as the “Peace Convention” to attempt to find a compromise to keep the United States from erupting into civil war. Called by Virginia, eventually 21 states took part, though the seven seceding states refused to take part. Six additional states did not send delegates. The Crittenden Plan which had proposed an additional six Constitutional amendments to protect slavery in the South were drawn up.

Concern over a timely transition in the 2000 presidential election between Democratic Vice-President Al Gore and Texas Governor George W. Bush ultimately drew the Supreme Court into the determination of the winner of this extremely close electoral vote. Network forecasts had called the state of Florida for both Al Gore and then George Bush. Believing he had lost the election, Gore called Bush to concede. Shortly thereafter at the insistence of his campaign aides, Al Gore mounted a legal challenge to the vote, which led to a recount in Florida. When the Supreme Court in a 5-4 decision ordered a stoppage to the recount, Gore conceded the election in a nationally televised address.

President Lincoln and the Republican Congress refused to accept this plan and felt Buchanan should not have undertaken these actions as a “lame duck” president. The attack on Fort Sumter in April of 1861 signaled the start of the Civil War. Election of 1932 The election of 1932 marked another historical milestone in American history as Franklin Delano Roosevelt prepared to assume office as the United States dealt with the devastation of the Great Depression. The banking industry suffered greatly, and unemployment reached nearly 25 percent. The candidates campaigned on widely divergent ideology and policy decisions. Hoover favored what he called “cooperative volunteerism”, while Roosevelt’s New Deal promised massive government intervention. Hoover attempted to get Roosevelt to cancel his proposed public works program, but Roosevelt refused to collaborate with Hoover on his proposed plans. Privately, Hoover referred to Roosevelt as a “gibbering idiot.” This transition marked the end of the extended “lame duck period” which had stretched to March 4. The 20th Amendment moved the presidential inauguration to its current date of January 20.

Allegations of widespread vandalism—including the removal of the letter W from White House keyboards—surfaced, though Clinton Administration officials denied many of these reports. Given the close nature of this election, the General Services Administration could not “ascertain” the winner of this election as mandated by the Presidential Transition Act. While both candidates did receive classified briefings, the 9/11 Commission concluded this outcome “hampered” the Bush administration’s ability to fill national security positions.

The contested nature of the 2020 presidential election resulted in the GSA waiting to make the ascertainment of a winner before declaring Joe Biden the President-Elect and beginning the formal transition process outlined by the Presidential Transaction Act and subsequent legislation. The GSA official, Emily Murphy, charged with ascertaining the winner of the 2020 presidential election had noted the need for greater clarity and standards to ascertain the winner of the presidential election. As it has done from the initial presidential transition at the turn of the 19th century, Congress will continue to assess and refine the process to ensure effective electoral transitions going forward.

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Leadership Transitions Around the World

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hough the United States formed the first democratic government after declaring independence from Great Britain in 1776, in the intervening two hundred plus years, other democratic governments have followed suit. Some nations still maintain monarchical, authoritarian, and other nondemocratic regimes. Below is a brief exploration of elections and leadership transitions in six other nations: China, Iran, Mexico, Nigeria, Russia, and the United Kingdom.

China When the Communist Party under Mao Zedong assumed power in 1949, Mao, as Communist Party Chairman, assumed control of the government. Chairman Mao remained in power until his death in 1976. Since Mao’s death, the Chinese Communist Party has continued to wield political power in China.

The current leader of China is Xi Jinping, who holds the offices of General Secretary of the Communist Party and President.

He began the first of what was to be two five-year terms as President in 2012. However, in 2018, Xi had the Chinese government remove the two-term limit for presidency, allowing for the possibility that Xi Jinping could remain president for life.

Iran In 1921, Reza Khan seized power in Iran. Four years later, he declared himself “Shah” and changed his name to Reza Shah Pahlavi. His son Mohammad succeeded him in 1941 and remained in power until the Iranian Revolution of 1979. The Ayatollah Ruhollah Khomeini returned from exile and was named the Supreme Leader. Upon his death, he was replaced as Supreme Leader by Ayatollah Ali Khamenei, who had previously served as President from 1981 to 1989.

Iran is an Islamic theocratic government under Sharia law.

Though Iran does have a president, all leadership positions are controlled and chosen by the Supreme Leader. The President may serve two four-year terms. For nearly 40 years, Iran has been governed by the Supreme Leader who holds this position for life.

Mexico After the conclusion of the Mexican Revolution in 1917, a new constitution was instituted. In 1929, the Partido Revolucionario Institucional (PRI) was established. Ten years later, the Partido Acción Nacional (PAN) became the opposition party. For 70 years, PRI won every presidential election in Mexico until the election of Vicente Fox as the PAN candidate in 2000. Though Mexico has a presidential system, with one party in power for an extended period of time, it remained a democracy in name only.

After a widely fraudulent election in 1988, the Mexican government instituted changes by creating a Federal Election Institute and Federal Electoral Tribunal. Though the president is popularly elected, there are no provisions for a candidate not winning a majority of the votes which has resulted in successful candidates winning only 36 percent of the vote. With several parties successfully electing a presidential candidate in the last 20 years, there is hope that Mexican politics are finally becoming more truly democratic.

Nigeria After a long history of British colonialism, Nigeria achieved independence in 1960. For most of the first 40 years of independence, a series of military leaders and dictators ruled

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Nigeria, though some serve as president. Under the Fourth Republic which began in 1999, Nigeria has held five successful elections resulting in four peaceful transitions from one civilian government to another. 2015 marked the first time an incumbent candidate lost and turned over the government to an opposition party.

Given Nigeria’s ethnic and religious diversity, a successful presidential candidate must not only win a majority of the national vote, but most also win 25 percent of the vote in at least two-thirds of Nigerian states. If these benchmarks are not achieved, the top two candidates participate in a runoff election. Though Nigeria experienced a long transition to democracy, recent elections demonstrate the possibility that Nigeria is on the path to political stability.

Russia For the majority of the 20th century, the Soviet Union found itself led by an authoritarian dictator supported by the Communist Party. This system collapsed in 1991 and Boris Yeltsin replaced Mikhail Gorbachev as president of an independent Russia. In 1999, President Yeltsin appointed Vladimir Putin as Prime Minister. Since that time, Putin has served as either president or prime minister of Russia. Officially, Russia has a semi-presidential system. Since 2012, the Russian president serves a six-year term and cannot serve more than two consecutive terms. The president can also be impeached. Despite these formal constitutional measures, Vladimir Putin is the acknowledged and unchallenged leader of Russia. That is not likely to change for the foreseeable future.

United Kingdom Famous as the home of the Magna Carta, often cited as one of the first acknowledgements of the primacy of the law, even for rulers, when the United States declared independence in 1776, England’s form of government consisted of a constitutional monarchy with a king and a strong legislature known as Parliament. Today, the power of the monarchy is greatly diminished, and the Prime Minister is the true head of government in the U.K. From the end of World War II to the 1970s, the Conservative and Labour parties earned 90 percent of the popular vote. Since the mid 1970s, the Liberal Democratic Party and other parties have emerged. Today, the United Kingdom has what is known as a “two-and-a-half-party system” with the Conservative and Labour parties dominating national elections.

In a general election, all 650 seats in the House of Commons are contested. The 2011 Fixed-term Parliamentary Act established five-year terms for elections. British voters decide which party should govern, and if one of the parties earns a majority of the seats in the House of Commons, that party forms a government, and its leader becomes prime minister.

There are two mechanisms within British politics that allow for a change in leadership. First, a two-thirds or “supermajority” can vote to override the Fixed-term Parliamentary Act to call an early election. Secondly, Parliament or the Prime Minister can call for a vote of no-confidence. When this occurs, the cabinet can either resign or new elections can take place.

In the past 100 years, only two British governments have been removed as a result of a vote of no-confidence.

TERRIFIC TECHNOLOGY FOR TEACHERS

Presidential Transitions Terrific Technology • Center for Presidential Transition https://presidentialtransition.org/

Sponsored by the Partnership for Public Service, this center is a nonpartisan resource serves as a resource for presidential candidates to help both new administrations and existing administrations entering a second term.

• GSA’s Role in Presidential Transitions https://www.gsa.gov/about-us/mission-and-background/gsas-role-in-presidential-transitions

A brief explanation of the role played by the General Services Administration in ascertaining the winner of a presidential election and the subsequent process for a presidential transition.

• Lawmakers seem to agree the Presidential Transition Act could use some work https://federalnewsnetwork.com/congress/2020/12/lawmakers-seem-to-agree-the-presidential-transition-act-coulduse-some-work/

An article from the Federal News Network highlighting some of the ambiguity of the PTA especially regarding the standards for the GSA to ascertain a winner of an election. www.ksbar.org/lawwise

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TERRIFIC TECHNOLOGY FOR TEACHERS (Cont’d)

• Pre-Election Presidential Act of 2010 https://www.congress.gov/111/bills/s3196/BILLS-111s3196enr.pdf

This legislation amended the PTA and took effect for the 2012 presidential election.

• Presidential Transition Act of 1963 (PTA) https://www.govinfo.gov/content/pkg/STATUTE-78/pdf/STATUTE-78-Pg153.pdf

The text of this legislation passed by Congress after the assassination of President Kennedy and the transition of Lyndon Johnson to the presidency.

• Presidential Transition Act: Provisions and Funding https://crsreports.congress.gov/product/pdf/R/R46602

A report from the Congressional Research Service outlining the funding and other relevant support and provisions authorized by the PTA and other subsequent legislation related to the presidential transition process.

• Presidential Transition Act Summary https://presidentialtransition.org/publications/presidential-transition-act-summary/

An excellent resource explaining the major elements of the Presidential Transition Act of 1963 and subsequent legislation produced by the Center for Presidential Transition.

• Presidential Transition Directory https://www.gsa.gov/governmentwide-initiatives/presidential-transition-directory/external-transition-resources/guiding-legislation-presidential-transition-directory

A helpful list of legislation regarding presidential transitions from the Presidential Transition Act of 1963 to the Presidential Enhancement Act of 2019.

• Presidential Transition Enhancement Act of 2019 https://www.congress.gov/bill/116th-congress/senate-bill/394?q=%7B%22search%22%3A%5B%22Presidential+Trans ition%22%5D%7D&s=2&r=1

The most recent legislation dealing with presidential transitions covering issues like a Memorandum of Understanding (MOU) with each eligible candidate and the extension of GSA support to the President and Vice-President Elects for 60 days after the inauguration.

• Three Terrible Presidential Transitions That Hurt America https://www.cnn.com/2020/11/17/opinions/terrible-presidential-transitions-hurt-america-balcerski/index.html

An opinion piece by a presidential historian who looks at three crucial presidential transitions in American history.

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The First 100 Days Lesson Plan iCivics Grades 6-12 Overview: Since President Franklin Delano Roosevelt’s historic response to the Great Depression in the first 100 days of his presidency, subsequent presidents have attempted to institute meaningful changes in the first few months of their presidency. This lesson will allow students to understand the importance of this period of a presidential administration.

Time Period: One or two class sessions Learning Objectives:

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Explain the origin of the concept of the president’s first 100 days

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Identify and explain what may impact the success of the president’s first 100 days

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Analyze presidential quotations to determine attitude towards the expectations of the first 100 days

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Define the term “mandate” as it applies to presidential terms

Materials: Student handouts Lesson Activities:

1.

Students will read Side A and Side B of the student handouts.

2. Students will read the Presidential Perspectives passages on Lesson Activities Side A.

3.

4. Assign students to groups to discuss their answers from the Lesson Activities.

5.

Students will complete the Influencing the First 100 Days and Mandates Matter Too? sections of the Lesson Activities Side B.

Organize a discussion with the whole class to share their work and to assess the importance of the first 100 days of a presidential administration. www.ksbar.org/lawwise

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Cabinet Building Lesson Plan iCivics Grades 6-12 Overview: The president isn’t alone when it comes to the day-to-day work of the Executive Branch. This lesson takes a look at the history of the presidential cabinet, how the cabinet is built through the confirmation process, and why this elite group of people matters to you.

Time Period: One or two class sessions Learning Objectives:

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Identify the origin and purpose of the president’s cabinet

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Describe the process of becoming a member of the cabinet

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Identify the 16 cabinet positions and the general topics for which they are responsible

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Explain how politics can impact the success of presidential nominations for the cabinet

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Track nominations and confirmations of the new presidential administration

Materials: Student handouts Lesson Activities:

1.

Students will read Sides A-D of the student handouts.

2. Students will complete the Activities A-E on the Lesson Activities Side A and B.

3. Students will complete the Tracking the New Cabinet Activity on the Tracking Template Side A and B.

4. Organize a discussion with the whole class to share their work and to explore the importance of the Cabinet in a presidential administration.

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JANUARY 2021 | LAW WISE 11 iCivics Resources for Getting Involved & Taking Action

www.icivics.org

This site provides teachers with free resources that improve students’ civic knowledge, civic attitudes, and core literacy skills.

Fun Learning Opportunities

Provides wonderful tools for educators and students. Take advantage of this great resource!

The KBA also has resources for teachers. Visit: https://www.ksbar.org/page/educator_resources About the Law Wise Editor: Nicolas Toledo Shump Nic teaches courses in American Electoral Politics, Design Thinking and Creativity, Film Studies, AP Comparative Government and Politics, AP European History, AP Psychology, AP US Government and Politics, AP US History, and AP World History for Constellation Learning. He also teaches English 110: Introduction to Academic Writing at the University of Missouri-Kansas City (UMKC) where he is a MFA student in Creative Nonfiction. He is a columnist for the Topeka Capital- Journal and other Gannett Kansas publications. He has served since 2012 as a Discussion Leader for the Talk About Literature in Kansas (TALK) program for Humanities Kansas.

Is Law Wise Helpful to You? We are always open to receiving comments, ideas and suggestions.

Please reply to awoods@ksbar.org .

Please let us know:

• Topics you would like to explore; • Projects and lessons you have developed that you would like us to feature; • Questions you would like to ask an attorney or judge.

We look forward to hearing from you.

He can be reached at nicshump@gmail.com

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The Kansas Bar Foundation, with Interest on Lawyers’ Trust Accounts (IOLTA) funding, provides support for this publication. Law Wise provides general information about law-related matters of interest to teachers, students, and the public in Kansas, but does not provide any legal advice, so readers should consult their own lawyers for legal advice. For further information about any projects or articles, contact Lisa Leroux-Smith, public services director, llerouxsmith@ksbar.org or 785) 234-5696. Law Wise is published by the Kansas Bar Association, 1200 SW Harrison St., Topeka, KS 66612-1806, during the school year.

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