We all know the problem. In order for the Biden transition team to begin working with federal agencies, access federal transition funds, and utilize government provided office space, Biden must be formally certified as the apparent President-elect by the administrator of the General Services Administration. But the administrator, Emily Murphy, refuses to do so. She has no colorable reason to refuse, as the legal standard for certification is not certainty or some official determination, but rather simply that the winner be “apparent.” Given that Biden has insurmountable leads in states with 306 electoral votes, there can be no serious argument that Biden doesn’t mee this standard.
But Murphy has refused to certify, and the Trump administration is reportedly instructing federal employees not to cooperate or even communicate with Biden’s representatives. Frankly, Biden is starting to look weak, having adopted the posture of hoping Trump will see the light and play nice, and attempting to work around the problem by meeting with non-government experts.
This is not enough! Biden needs to go on the offensive. Fortunately, there is a simple judicial remedy: Biden’s team should file an action for mandamus in the Federal District Court for the District of Columbia. 28 U.S. Code § 1361 gives federal district courts "original jurisdiction of any action in the nature of mandamus to compel an officer or employee of the United States or any agency thereof to perform a duty owed to the plaintiff.” Mandamus is an order from a court to a government officer ordering her to fulfill her official duty — in this case, certifying Biden as the apparent President-elect. This is a perfect case for mandamus, as it applies in the case of a clear duty. You can’t use mandamus to require a federal official to decide a discretionary act in a particular manner, but it does apply in a case like this, where the decision is cut and dried and under long historical precedent has always been treated as a formality.
The lawsuit could be drafted and filed overnight — hell, I’d volunteer to do it if Biden asked. And it could be accompanied by a motion for expedited hearing, given the emergency nature and public importance of the issue. As Biden himself said, the failure to commence formal transition proceeding means more people will die.
So please, Joe, get your administration off to an aggressive start. Don’t be a victim — you don’t need to be. You hold all the cards — you won a big victory, the law is on your side, and there is a clear and easy legal remedy. It is imperative that you appear strong and be strong — don’t let the Republicans get the idea that you are easily bullied, or you won’t accomplish anything in the next four years!
UPDATE: Wow! Lots of recs. Thanks, everybody. I could only hang around for a little while after I wrote it, then work called. Now I’m back, it will take me awhile to get through all the comments, but I really appreciate your interest and am interested in your reactions.