Updated April 30, 8:30 am PST.
“Mark my words, I think [Trump] is going to try to kick back the election somehow,” said Joe Biden recently during an online fundraiser.
On April 29, the Wall Street Journal reported:
To “try” is one thing. But there are constitutional and legal reasons why a president can’t delay a federal election or extend his term of office, which should dispel any worries.
Start with the text of the Constitution. The 20th Amendment is exceedingly clear: “The terms of the President and Vice President shall end at noon on the 20th day of January.” There’s no clause that allows presidents to remain in office beyond Jan. 20 or to invoke some emergency power to extend a term of office.
With polls showing Trump trailing former Vice President Joe Biden—his likely Democratic opponent in the November election—it is widely rumored that the president might seek ways to postpone the election in order to remain in office.
Such a move would be blatantly illegal: It would place the government of the United States in the hands of one man, abridge the cherished right of those in the U.S. to choose their leaders, and threaten democracy itself.
The Power to Control Elections Lies with States and Congress
The Constitution entrusts the timing and conduct of federal elections entirely to Congress and the states. According to Article I, states prescribe the times, places and manner of selecting senators and representatives—although Congress may change those rules.
The president has no role to play in their election.
Election of the president is a bit more complicated, but here again the Constitution is clear. Under Article II, the President’s term is limited to four years—although she may be reelected for a second four-year term.
The same article gives Congress the job of determining a time for “chusing the Electors,” who are appointed by each respective state, and whose role in selecting the president is spelled out in detail in the 12th Amendment.
The process is entirely out of the president’s hands.
The 20th Amendment to the Constitution says the President’s term ends on January 20th, and the term of her successor “shall then begin.” It also says that if a president has not been chosen by that date, and no vice president has qualified to serve instead, Congress may either designate someone to act as president or may prescribe a new procedure for selecting one.
Invoking this provision, the Presidential Succession Act of 1947 states that if no one has qualified to serve as President, the Speaker of the House—or others in a specified line of succession—shall serve instead.
Once again, the constitutional text and statute rule out any indeterminacy in the length of the President’s term (even if cut short by death or disability).
On March 13, President Trump declared a national emergency to combat the coronavirus. His declaration triggered more than 100 standby legislative authorities, enabling him to provide financial support to states, deploy FEMA resources around the country, waive interest payments on federal student loans, and buy oil for the strategic petroleum reserve.
Yet, while some states allow their governors to postpone an election during an emergency, neither the Constitution nor any of the federal emergency statutes provides a similar power for the President.
Nor could the President rely on any inherent constitutional power to act in an emergency like the one we now face: The Constitution grants no emergency powers to the President.
Justice Jackson famously warned in 1952 that such power “either has no beginning or it has no end. If it exists, it need submit to no legal restraint. I am not alarmed that it would plunge us straightaway into dictatorship, but it is at least a step in that wrong direction.”
If President Trump ordered a postponement of the November elections anyway, he might try to deploy federal troops to keep the polls closed. Yet, in the absence of insurrection or domestic violence—like the unrest that followed the Rodney King verdict in 1992—no statute would permit him to do so.
In fact, Congress has otherwise barred him from using federal military forces this way. The prohibition comes, ironically, in the 1878 Posse Comitatus Act—passed in response to claims that troops were used to intimidate voters and help the election of Rutherford B. Hayes two years earlier.
Could the President Use Martial Law to Postpone the Election?
One other possibility must be considered. California Governor Gavin Newsom has suggested that martial law might be declared in his state. So Donald Trump, the self-proclaimed “wartime” President, might be tempted to declare martial law nationally, and order the military to ensure that the election was delayed.
Martial law is not mentioned in the Constitution or any statute. Its precise contours are unknown and unknowable, for when it is declared, all the laws are suspended and the president or a military commander may do whatever seems appropriate at the time.
Martial law has only been declared in this country a handful of times, and then only locally. The Supreme Court has indicated that it may only be declared when civil government and the courts are overwhelmed because of an invasion or insurrection.
Even in the ongoing pandemic, those conditions are not likely to exist anywhere in this country.
In one 1866 decision, the Court warned, “Civil liberty and . . . martial law cannot endure together; the antagonism is irreconcilable; and, in the conflict, one or the other must perish.”
Ultimately, President Trump might—like President Lincoln at the beginning of the Civil War—decide to ignore the law, take matters into his own hands to stop the election and face the political music later on.
It would then be up to Congress, the courts, and perhaps the military to stop him—all fulfilling their oaths to protect and defend the Constitution and laws of the United States.
A better solution now is to convince Trump not even to seriously consider such a flagrant abuse of his presidential powers. He needs to stay entirely focused on leading the nation out of the current crisis as best he can. Then he can face the music.
The coronavirus pandemic and the response by federal, state and local authorities is fast-moving.
During this time, Ms. is keeping a focus on aspects of the crisis—especially as it impacts women and their families—often not reported by mainstream media.
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