Actual consequences
[O]ne thing Biden cannot do at this point is move into any government office space or receive government funding for the transition.
A key, if little-known Trump administration official has yet to determine formally that Biden won the election, holding up some crucial resources traditionally available to the president-elect.
Under the 1963 Presidential Transition Act, it’s up to the General Services Administration, or GSA, to determine or “ascertain” the winner of the presidential election, at least as far as starting the process of turning over the keys to the new administration goes.
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In a statement, the GSA said its administrator “ascertains the apparent successful candidate once a winner is clear based on the process laid out in the Constitution.”
Spoiler: the winner is clear.
The Associated Press and other news organizations reported that Biden gained the electoral votes needed to win the election on Saturday, but President Trump has so far refused to concede and has falsely claimed widespread voter fraud. His team has launched a wave of lawsuits challenging various aspects of the election.
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Being ascertained as the winner means the president-elect gets office space in each government agency to begin the transition process, along with computers and $9.9 million to begin hiring transition personnel.
In other words being able to get started on the actual work, as opposed to standing around wasting time and falling behind.
David Marchick, who directs the nonpartisan Center for Presidential Transition, said there are important real-world implications for a delayed transition. Marchick points to the delay in the transition to the George W. Bush administration after the Supreme Court ruling.
“That slowed the process of the Bush administration getting their national security team in place. Eight months later, we had 9/11,” Marchick said. “When the 9/11 Commission did their autopsy on what went wrong, one of the things they pointed to was the slow pace of the Bush administration getting their national security team in place. And they said it impaired our ability to react.”
But what does that matter compared to Trump’s ego?
“If there’s anything more important than my ego around, I want it caught and shot now.” — Zaphod Beeblebrox
Biden has a good case to file a writ of mandamus; the court can order the GSA to comply with its duty to start the transition. Normally, the GSA is not a politicized agency.
But since the statute confers discretion on the administrator to “ascertain” the winner, without declaring any particular standard, I’m assuming the standard of review would be something like “abuse of discretion,” wouldn’t it? Which is tricky, because it’s not like there’s a lot of precedent here. Biden should probably win even on that standard, but it’s murky enough that I can easily see a conservative court going the other way. And that might do more harm than good — imagine a SCOTUS ruling that Trump could wave around as “proof” that Biden is not President-Elect. (Which wouldn’t actually be the ruling, but good luck explaining that to people. You’re lucky if the media reports it even semi-accurately.)
As important as getting GSA approval is to an effective transition, if I were the Biden team I wouldn’t risk even a 5% chance of losing such a case.