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UH Law Center panel analyzes how customs can supersede legal methods in presidential transfers of power

Feb. 22, 2021 - Experts from the University of Houston Law Center and a guest speaker from the UH Hobby School of Public Affairs discussed the presidential transfer of power in a recent continuing legal education session that was held virtually.

The opening speaker was Dr. Richard Murray, the Director of the Center for Public Policy’s Survey Research Institute and Lanier Chair in Public Policy at the UH Hobby School of Public Affairs. He provided a historical perspective of previous presidential transfers of power.

"The emergence of traditions have been powerful since the 1890s,” Murray said. “What really improved the process was the loser conceded. In 1896, two days after a hard-fought election, William Jennings Bryan telegrammed William McKinley congratulating him, wishing him the best and established a terrifically important tradition in American politics.

"Very often we have this ritual after the advent of radio and television, we watch the votes be counted and very frequently we see the media project a winner. Their opponent usually quite quickly concedes, and that makes for a far smoother transition."

Murray said the tradition was tested in 2000 during the presidential election between George W. Bush and Al Gore, and in 2020 between incumbent Donald Trump and his opponent Joe Biden.

"These are all informal arrangements, and to a great degree function because of the agreement that the loser concedes," Murray continued. "When you get someone that doesn't accept the basic traditions of American democracy, you've got a problem. What happens when a loser won't only not concede but falsely claims he was cheated of an election he claims to have won in a landslide?

“The system works to a great degree not because of the formal structure, but a set of important traditions that enable power usually to be handed off even when one party defeats another and there's a change of administration in partisan terms."

The second speaker, Associate Professor of Law Daniel Morales, discussed the racial implications of the fatal Jan. 6 storming of the Capitol building in Washington D.C. that took place during a joint session of Congress to certify the presidential election's electoral votes. He reflected on what he thought were some of the deeper forces that caused the violence.

"We are in the midst of an incredible transition," Morales, the George A. Butler Research Professor, said. "In recent history, Barack Obama became president in 2008. For a lot of America, it felt really good to see an African-American man take a position of power. Nonetheless, I think at this point it's undeniable that having that in some people's minds was deeply distressing.

"We have a lot of white and minority Americans who are ready to enter into this brave new world of multi-racial political power. A significant portion of the populous that either consciously or unconsciously feels extremely nervous about that prospect. A lot of what we're seeing today is symptomatic of that deeper anxiety."

The following speaker was Associate Professor Emily Berman, who teaches Constitutional law, foreign affairs law and national security law discussed a trend she referred to as "policy whiplash,” which results from the more frequent unilateral exercise of power by the executive branch to form policy.

"It is not unique to this transition, but it has surfaced this time in some particularly problematic ways," Berman said. "Increased polarization of our politics in recent decades has led to presidential administrations increasingly relying on unilateral executive action - but what one executive gives, the other can take away. Outgoing administrations are trying to find ways to embed their preferences in way that the incoming administration can't easily undo. This happens with both people and policies.

"There are also significant foreign policy implications. Whether you're talking about allies or adversaries, it's difficult to generate and maintain relationships if countries don't know from which presidential term to the next where the U.S. stands. Agreements are signed onto or withdrawn from and there's no consistency."

Law Foundation Professor of Law Seth Chandler, who specializes Constitutional law and the application of mathematics and computer science to law, discussed several areas where he believes change is needed from an election security and Constitutional standpoint.

"Some states may attempt to diminish popular franchise, because the Constitution does not require direct democracy when it comes to presidential elections," Chandler said. "I wonder if this isn't going to happen more if the For the People Act, which is H.R. 1 in the current Senate gets passed, which is a distinct possibility. That's going to make some massive changes with how we do elections in the U.S. It also requires additional election security procedures. There will likely be massive litigation about whether this intrudes on the state's role of selecting a president.

"People who believe they were victimized by election fraud may well attempt to retaliate in kind and exploit bugs in the existing law and technology that exists, and we need to be very concerned in 2022 and 2024. We've seen concerted actions facilitated by the Internet, and I can imagine coordinated ways to attack the voting system. Like the Capitol police who thought they were prepared to deal with the usual uncoordinated small-scale levels of violence, but turned out to be unprepared to deal with a coordinated mass attack of the kind the Internet facilitates."

The final speaker, Cullen Professor of Law David R. Dow, discussed several episodes in Constitutional history that are germane to the impeachment trial of Trump which concluded on Feb. 13. He addressed the 1876 impeachment trial of Secretary of War William Belknap, an instance where Congress acted, and the resignation of former President Richard Nixon, where Congress did not act. He also examined the 1992 impeachment trial of former U.S. District Judge Walter Nixon, who was convicted by the Senate and appealed his case to the Supreme Court.

"The Supreme Court unanimously held that what the Senate did was perfectly fine," Dow said. "Seven justices indicated that the question of an impeachment trial is always a political question - which means that it is a question beyond the competence of the judicial branch to decide; instead, the final word on so-called political questions lies with either the President or the Congress."

"In addition, the language in the Chief Justice's opinion and concurring opinions suggests that the Senate has broad power to decide what the procedures are going to be, and if indeed whether a trial will go forward at all. In short, the question of whether the Senate has the power to try a former president is a question that the Senate gets to decide without interference from or review by the judicial branch; and that question was decided when 55 Senators voted that they do have the authority to go through with the trial."

In short, Dow noted the final word on whether the Senate may conduct an impeachment trial lies with the Senate, and they decided that the answer to that question is yes. 

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