Filed: Jan. 17, 2001
Latest Update: Mar. 03, 2020
Summary: As you have, acknowledged, before the Administrator could use any Transition Act funds to pay, any such obligation of the President-elect or Vice-President-elect, he would have, to confirm that the obligations were bona fide Transition expenses.The Administrator of General Services .
Reimbursing Transition-Related Expenses Incurred
Before the Administrator of General Services Ascertained
Who Were the Apparent Successful Candidates for the
Offices of President and Vice President
The General Services Administration can reimburse the Bush/Cheney transition for legitimate
transition-related expenses, as contemplated by the Presidential Transition Act of 1963, that were
incurred after the general election on November 7, 2000 but prior to December 14, 2000, when the
Administrator of GSA ascertained that George W. Bush and Richard Cheney were the apparent
successful candidates for the offices of President and Vice President.
January 17, 2001
MEMORANDUM OPINION FOR THE GENERAL COUNSEL
GENERAL SERVICES ADMINISTRATION
You have requested our opinion concerning whether, under the Presidential
Transition Act of 1963, as amended (“Transition Act,” or “Act”), 1 funds appropri-
ated for purposes of that Act can be used to reimburse the Bush/Cheney transition
for transition-related obligations they incurred after the general election but before
the Administrator of the General Services Administration (“Administrator”)
ascertained that they were the “apparent successful candidates for the office of
President and Vice President” within the meaning of the Act. As you have
acknowledged, before the Administrator could use any Transition Act funds to pay
any such obligation of the President-elect or Vice-President-elect, he “would have
to confirm that the obligations were bona fide Transition expenses.” Letter for
Randolph Moss, Assistant Attorney General, Office of Legal Counsel, from
Stephenie Foster, General Counsel, General Services Administration at 2 n.2
(Dec. 20, 2000). 2
The Act authorizes the Administrator to expend the funds appropriated to im-
plement the Act only for those services and facilities that are necessary to assist
the transition of the “President-elect” and the “Vice-President-elect.” Id. § 3(a).
The terms “President-elect” and “Vice-President-elect” are defined under the Act
to mean the individuals, “following the general elections held to determine the
electors,” that the Administrator ascertains are “the apparent successful candidates
for the office of President and Vice-President, respectively.” Id. § 3(c). We
recently concluded that “[s]ince there cannot be more than one ‘President-elect’
1
The Presidential Transition Act is set out in the notes to section 102 of title 3 of the United States
Code. See 3 U.S.C. § 102 note (1994). The Act has also recently been amended. For those amendments,
see Presidential Transition Act of 2000, Pub. L. No. 106-293, 114 Stat. 1035.
2
We also address only your question of whether the Act permits such reimbursements. We do not
consider whether there are other legal requirements that might relate more generally to transition-
related reimbursements.
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and one ‘Vice-President-elect’ under the Act, the Presidential Transition Act does
not authorize the Administrator to provide transition assistance to more than one
transition team.” See Authority of the General Services Administration to Provide
Assistance to Transition Teams of Two Presidential Candidates, 24 Op. O.L.C.
322, 322 (Nov. 28, 2000) (“GSA Authority”). This conclusion, however, does not
answer the question whether the Administrator may reimburse the President-elect
and/or Vice-President-elect for obligations related to legitimate transition activities
that they incurred beginning the day following the general election (November 8,
2000) but prior to the Administrator’s determination that they were in fact “the
apparent successful candidates for the office of President and Vice President,”
which in this election did not occur until December 14, 2000. Based on the
language and purposes of the Act, we conclude that the Administrator can
reimburse the President-elect and Vice-President-elect for such expenses.
The argument that funds appropriated to implement the Act cannot be used to
reimburse the President-elect and Vice-President-elect for post-election transition
obligations incurred prior to December 14, 2000 depends on a reading of the Act
that would limit such reimbursement only to those obligations incurred by the
President-elect or Vice-President-elect after they held that status as defined in the
Act. Under such a reading, because the Act defines both these terms as requiring a
determination by the Administrator that each candidate is the apparent successful
candidate, and because that determination did not take place until December 14,
2000, any obligations incurred prior to that time would not qualify for reimburse-
ment. We conclude, however, that this is not the best reading of the statute.
Section 3(b) of the Act specifies that the Administrator may not expend funds
for the provision of services and facilities under the Act
in connection with any obligations incurred by the President-elect or
Vice-President-elect—
(1) before the day following the date of the general elections held to
determine the electors of President and Vice President under section
1 or 2 of title 3, United States Code; or
(2) after 30 days after the date of the inauguration of the President-
elect as President and the inauguration of the Vice-President-elect as
Vice President.
If the term “President-elect” in the phrase “incurred by the President-elect” was
itself intended to incorporate a temporal limitation on reimbursement—i.e., no
reimbursement for any obligations incurred prior to the time the Administrator
determines who the President-elect is—then section 3(b)(1) would serve little
purpose. As a practical matter, the Administrator cannot determine who “the
apparent successful candidate[] for the office of President” is “before the day
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Reimbursing Transition-Related Expenses of President and Vice President
following the date of the general elections held to determine the electors of
President and Vice President.” The separate prohibition of section 3(b)(1) thus
would have little function if the phrase “incurred by the President-elect” already
limited reimbursement to those obligations incurred after the designation of the
President-elect. 3 Because interpretations of statutes that render language superflu-
ous are disfavored, Connecticut Nat’l Bank v. Germain, 503 U.S. 249, 253 (1992),
we reject the view that the phrase “incurred by the President-elect” itself bars
reimbursement for legitimate transition obligations incurred by the person
ultimately ascertained to be the President-elect prior to the time that the Adminis-
trator designates an apparent successful candidate. Section 3(b)(1) evidently
recognizes that the person who eventually becomes the President-elect may incur
transition-related obligations prior to the election itself (or even within the very
brief period of time that may exist between the end of the election and the next
day), and the provision operates to bar reimbursement of any such expenses. 4
Further support for this construction is found in section 3(b)(2) of the Act,
which bars the Administrator from reimbursing transition obligations “incurred by
the President-elect . . . after 30 days after the date of the inauguration of the
President-elect as President.” Plainly, any transition-related obligations incurred
after the date of the inauguration cannot be incurred by “the President-elect”; they
would instead be incurred by the President. Thus, section 3(b)(2), like sec-
tion 3(b)(1), reflects Congress’s understanding that the phrase “incurred by the
President-elect” does not limit reimbursement to obligations incurred only by a
person who, at the time the obligation is incurred, actually is the “President-elect.”
Finally, our construction finds support in section 3(a), which sets out the ser-
vices and facilities that the Administrator is authorized to provide. This section
specifically states:
3
It is conceivable that the Administrator could determine that a candidate was the apparently
successful candidate after the polls had closed but prior to the day following the election. In such a
situation, if the term “President-elect” were understood to operate as a temporal limitation, sec-
tion 3(b)(1) could serve the independent function of prohibiting the Administrator from reimbursing
any transition-related obligations incurred by the President-elect in the few hours after the polls closed
but prior to the day following the election. This possibility appears so remote, the amount of
obligations that could be incurred so slight and the policy supporting such a distinction so unclear that
we consider such a potential independent function to be too insubstantial to support the view that the
term “President-elect” itself incorporates a temporal restriction on reimbursement.
4
This construction of section 3 is consistent with two provisions added to the Act in 2000 that
permit the expenditure of funds prior to the election itself. See Pub. L. No. 106-293, § 2, 114 Stat.
at 1036 (relevant provisions added as paragraphs (9) and (10) of the Presidential Transition Act).
Paragraph (10) expressly provides that the Administrator may consult with “any candidate for President
or Vice President to develop a systems architecture plan for the computer and communications systems
of the candidate to coordinate a transition to Federal systems.” See Presidential Transition Act,
§ 3(a)(10). Paragraph (9) involves the development of a transition directory prior to the election. Id.
§ 3(a)(9). Only in this narrow category of pre-election transition expenses does the Act authorize
disbursements, thus providing support to our view that transition expenses that might be incurred prior
to the day after the election are, generally, not reimbursable due to section 3(b)(1).
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The Administrator of General Services . . . is authorized to provide,
upon request, to each President-elect and each Vice-President-elect,
for use in connection with his preparations for the assumption of of-
ficial duties as President or Vice President necessary services and fa-
cilities, including [payment of compensation of members of office
staffs, payment of expenses for the procurement of experts or con-
sultants, payment of travel expenses and subsistence allowances,
etc.].
Although this provision authorizes assistance only to the “President-elect” and the
“Vice-President-elect,” it does not limit that assistance to expenses incurred after
the determination of that fact. To the contrary, the Act as a whole only limits the
assistance to obligations that are “in connection with his preparations for the
assumption of official duties as President or Vice President” and which were
incurred after “the day following the date of the general elections held to deter-
mine the electors.” This indicates a congressional intent to reimburse the Presi-
dent-elect and Vice-President-elect for any legitimate transition related expenses
incurred by them after the general election.
This reading of the statute is also consistent with its purposes, and promotes its
goals. Based on a recognition that “the orderly transfer of the executive power in
connection with the expiration of the term of office of a President and the inaugu-
ration of a new President” is in the “national interest,” id. § 2, Congress believed
that transition efforts are a public function that should be financed by government
funds rather than by private interests. See 109 Cong. Rec. 13,346 (1963) (state-
ment of Rep. Rosenthal); id. at 13,347 (1963) (statement of Rep. Monagan).
Congress concluded that it was not fair to place the financial burden on the
President-elect, private individuals and the national political parties, see, e.g., id. at
13,347 (statement of Rep. Monagan) (“the country cannot reasonably expect that
[the costs of transition] will any longer be borne by individuals or even by a party
organization. They are an integral part of the presidential administration and
should be borne by the public.”), and that it was bad public policy for private
individuals possibly to feel that they were entitled to special consideration as a
result of helping to fund a cost of government. See, e.g., id. at 13,346 (statement of
Rep. Rosenthal) (“If someone is going to come forward and help pay what we now
recognize is a cost of government, which is actually what it is, during the transi-
tional period, that person may feel inclined to think that he is entitled to special
consideration from the government.”).
Those expenses incurred by the President-elect and Vice-President-elect after
the election but prior to December 14, 2000 (and in relation to transition activities
as contemplated under the Act) are precisely the sort of expenses that Congress
felt it was important to fund publicly because Congress viewed these activities as
“expenses that are necessary and pertinent to the job of the Presidency and the
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Reimbursing Transition-Related Expenses of President and Vice President
Vice Presidency,” 109 Cong. Rec. at 19,738 (statement of Sen. Jackson); “a public
function,” id. at 13,346 (statement of Rep. Rosenthal); “an integral part of the
presidential administration,” id. at 13,347 (statement of Rep. Monagan); and, as
President Kennedy expressed in his letter transmitting the proposed legislation that
was to become the Presidential Transition Act, “the reasonable and necessary costs
of installing a new administration in office.” Letter of Transmittal from the
President of the United States to the President of the Senate and the Speaker of the
House of Representatives (May 29, 1962), reprinted in H.R. Rep. No. 88-301, at 9,
12 (1963). As long as the transition obligations at issue were incurred within the
time frame specified by the Act, the Administrator’s inability, due to the closeness
of the election, to determine the President-elect and Vice-President-elect until
several weeks after the election itself should not operate to cut off reimbursement
of legitimate, post-election transition-related expenses.
To be sure, in our earlier opinion, we concluded that the Act prohibits the
Administrator from expending transition funds prior to a determination of “the
apparently successful candidates.” That conclusion, however, is consistent with
our determination here that, once the President-elect is determined, the Adminis-
trator may expend available funds to reimburse the now-designated President-elect
for legitimate post-election transition obligations his transition incurred prior to
that designation. The prohibition on expenditure prior to the determination of the
apparent successful candidate is designed to ensure both that public funds are not
disbursed in a manner that might influence the outcome of a disputed election, and
that those funds are expended only on obligations that are truly related to the
actual transition of the President-elect and Vice-President-elect. As Representative
Fascell, a sponsor and manager of the bill, explained:
The pending legislation does not seek to do anything about [the de-
termination of the election of the President and the Vice President]
or change it in any way, and we are not directly concerned with the
question of election, nomination, or the inauguration, for that matter.
But we do provide under this pending legislation, as we have provid-
ed in previous congressional actions, the right of the Administrator
to determine that funds shall be spent for certain services, supplies,
and other things for the benefit of the President-elect and the Vice-
President-elect.
109 Cong. Rec. at 13,349 (emphasis added). However, to construe the Act in such
a manner that it bars not only expenditures of funds prior to a determination of the
apparent successful candidate, but also reimbursement of legitimate transition
obligations that the transition incurs after the election but prior to the designation
of the President-elect, would have the perverse effect of denying the President-
elect and Vice-President-elect the very funds Congress made available for their
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benefit. Neither the language of the statute nor its legislative history supports such
a result. As Representative Fascell explained to the House, “this bill formalizes
[the process] by authorizing the funding procedures for the orderly transition of
executive power so that certain services will be available to the incoming Presi-
dent between the time of his election and inauguration.” 110 Cong. Rec. 3539
(1964) (emphasis added). 5 The Administrator’s determination under section 3(c) of
the Act confirms which of the candidates for President is entitled to receive
transition funds and when the Administrator may first begin expending those
funds; that determination does not also serve to establish the time frame within
which legitimate transition-related obligations must be incurred in order to qualify
for reimbursement. That time frame is set forth in section 3(b) of the Act.
In sum, we conclude that the General Services Administration can reimburse
the transition for legitimate transition-related expenses, as contemplated by the
Presidential Transition Act of 1963, that were incurred after November 7, 2000 but
prior to December 14, 2000.
RANDOLPH D. MOSS
Assistant Attorney General
Office of Legal Counsel
5
We noted, in the GSA Authority opinion, Representative Fascell’s statement that:
This act and the Administrator could in no way, in any way, affect the election of
the successful candidate. The only decision the Administrator can make is who the
successful candidate—apparent successful candidate—for the purposes of this particu-
lar act in order to make the services provided by this act available to them. And, if
there is any doubt in his mind, and if he cannot or does not designate the apparently
successful candidate, then the act is inoperative. He cannot do anything. There will be
no services provided and no money expended.
24 Op. O.L.C. at 325 (quoting 109 Cong. Rec. at 13,349). We read this and similar statements in the
legislative history to refer to when the Administrator is authorized to make expenditures under the Act
rather than to refer to the period in which obligations can be incurred by the transition for which
reimbursement expenditures can ultimately be made by the Administrator following his ascertainment
of the President-elect.
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