Legal Commentary

I would hope that all of us law-bloggers might burn off our excess energy in the next few months by giving serious thought to the legal issues that confront the incoming President.  I don't mean this in a triumphalist fashion, a la Clinton in 1993 -- now that we're in office, we're pulling out the laundry list!  I mean it in a more meta fashion -- what are the challenges involved in presidential transitions themselves, and perhaps legal transitions in general?

Let me offer a reading list on this issue.  I think Jack Beermann's work on presidential transitions is especially useful, and all but unique in the field.  You can find his SSRN page here, and I strongly recommend his articles "Presidential Power in Transition" and "The Law of Presidential Transitions" (the latter is co-authored with William Marshall).  Beermann certainly leaves many questions unanswered, but he provides an invaluable overview, along with a fine discussion of many specifics.  On the specifically administrative side of the ledger, Nina Mendelson's work is also fantastic, and I recommend her article Agency Burrowing: Entrenching Policies and Personnel Before a New President Arrives.  I have no idea what partisan leanings either person has, but I hope the Obama transition team will get in touch with both of them!  Finally, although its focus is a little different, I would recommend The Credible Executive, by Eric Posner and Adrian Vermeule.  I should add that there is a substantial poli-sci literature on these issues, but the legal academic literature is embarrassingly scanty.  I hope others will feel free to weigh in on some of the key issues involved in transitions, and to suggest other reading. 

Let me add three notes.  First, although it's too late to slot a discussion of these issues for publication in the next cycle of law reviews, I would strongly encourage law reviews with online supplements, like the Yale Pocket Part or Michigan's First Impressions, to set up a mini-symposium on these issues.  (And, yes, I'm definitely volunteering.  For that matter, I'm happy to corral the authors.)  This is an issue that deserves immediate and focused discussion.  Second, although it's still in the planning stages, I'm happy to say that my own law school will be hosting a conference on these issues next year.  I know, it's a little late, but I think it will be terrific and I look forward to it.

Third, there is one issue I think has not received enough attention, and that is what it means for questions of executive transition for the new President to take the oath prescribed to him in Article II.  I have a vested interest in this point, since I am working on a paper about the history and meaning of the federal judicial oath; but I think there is room for much more attention to the meaning and implications of all office-holders' oaths, including the Article II oath, and I hope and think that the increased attention to virtue ethics in the legal academy will lead to a greater interest in this subject.  Whatever candidate or President-Elect Obama might say, once he takes the oath I think he is subject to an independent set of obligations prescribed by the oath, and their precise meaning and implications are well worthy of serious attention.