(This article was first published in Just Security)
By Mark Medish and Joel McCleary
The future of electoral democracy in the United States is, without exaggeration, at risk. While a global pandemic and economic meltdown could provide a pretext for this threat, it does not come from abroad. Instead the threat comes from our own elected leader, the President of the United States—and those who know him best, know this to be true.
President Donald Trump has made a series of comments that convey casual disregard, if not outright contempt, for our constitutional order. Last year, he told a conservative group, “I have an Article II, where I have the right to do whatever I want as president.” On February 18 of this year, he boasted, “I’m actually, I guess, the chief law enforcement officer of the country,” which even if technically true no president would dare assert in defiance of the independence of the Justice Department. On March 12, in the same breath as mentioning the availability of “strong emergency powers,” Trump declared, “I have the right to do a lot of things that people do not know about.” A week later he asserted, “When somebody’s the president of the United States, the authority is total. And that’s the way it’s got to be.”
In the spirit of total authority, Trump has claimed the power to adjourn Congress during the Covid-19 crisis to give him, among other things, free rein to make recess appointments. Despite bipartisan opposition, he has dismissed inspectors general in several departments because they dared expose fraud, waste, and political abuse that implicated him. He has claimed the emergency authority to open or close the country. He has undermined the authority of governors by inciting civil disobedience, urging citizens to “liberate” their states from pandemic shutdowns and making supportive statements of armed agitators who do so. Trump has also threatened to put the U.S Postal Service, on which mail-in voting depends, out of business. This pattern of overstepping authority and undermining institutions is too consistent – and the subject matter too serious – to be dismissed as innocent frivolity or ignorance.
Former Vice President Joe Biden has stated his concern about Mr. Trump’s intentions in regard to the elections in November. The presumptive Democratic nominee said he believed that the president might “kick back the election somehow, come up for some rationale for why it can’t be held.” The White House rejected the charge, yet Biden’s concern is warranted. Indeed, the threat is broader still. It includes the possibility of Trump’s abusing emergency powers to suppress voting in general, using other means to interfere with opposition party organizing, or adopting extraordinary measures to contest an election that he loses.
After years of fulminating against an imaginary “deep state,” Trump has waged war on the professional civil service in favor of a cabal of loyalists. He has shown a worrying preference for an executive-dominated state without meaningful checks and balances. He has stacked the courts, stonewalled Congress during his impeachment trial, and stymied all forms of accountability. His attorney general brushed aside clear findings of obstruction of justice by Special Counsel Robert Mueller. Trump is testing the limits of our well-developed democratic system. His willingness to break taboos, even in off-hand remarks, should be taken as a grave warning sign that he may break the constitutional order around the election and simply say “sue me.”
Legal scholars correctly point out that the Constitution firmly sets the date of national elections and also the date and time of the end of the president’s and vice president’s term. Does a president have the authority to ignore or modify this electoral calendar? As Professor Cass Sunstein has written, “The answer is clear. He does not.” Unfortunately, the risk in this cutthroat world of practice does not end with that crisp analysis.
Before we proceed, it is important to underscore one point. The issue here is not whether Trump has a sound legal basis for asserting some of these authorities. In many of the scenarios, all he needs is for courts to draw out the resolution of an issue or for five of the conservative Justices to break in his favor. Hence, the “sue me” strategy, which he has practiced throughout his private and public career, could succeed with catastrophic consequences.
We see three potential pathways to perdition at the whim of President Trump and his cohort of constitution-benders led by Attorney General William Barr.
A Reservoir of Emergency Powers
First, the president could invoke some form of emergency powers to respond to a national crisis and thereby declare the election a physical impossibility or otherwise impose severe constraints on how some Americans can vote. Such powers are constitutionally inherent in both the executive and legislative branches, and many have been delegated to the president by Congress. Most presidential emergency powers have been harnessed under a series of statutes such as the National Emergencies Act of 1976 and the International Emergencies Economic Powers Act of 1977.
The thrust of these statutes has been to define and limit emergency powers, for example, by requiring formal declaration of emergencies by the president and mandating certain procedures for implementation. Yet as a 2020 Congressional Research Service report notes, “in the American governmental experience, the exercise of emergency powers has been somewhat dependent on the Chief Executive’s view of the presidential office.” Thus, despite statutory limits, there is room for maneuver with or without congressional assent. An example was Trump’s proclamation of a national emergency and redirection of funding to allow military construction of the wall at the Southern border over strong, but not veto-proof, bipartisan congressional objection.
Writing in early 2019, Liza Goitein, a leading expert on emergency powers mapped, in great detail, how President Trump could tap into these authorities to interfere with Americans’ ability to vote in the presidential election. She noted how the president could manufacture a national security crisis—e.g., hostilities with Iran—for those emergency powers that require such a military threat. But the coronavirus pandemic could offer Trump a ready pretext as well for a subset of those authorities. The menu of policy options, according to Goitein’s analysis, includes shutting down or selectively controlling internet communications, sending troops to suppress alleged rioting and angry mobs, detention of “subversives,” and imposing mandatory curfews—each of which could at least be enough to suppress voter turnout to historic lows to win reelection.
In addition to existing authorities, the Justice Department recently sought new emergency powers to ask a chief judge to detain people indefinitely without trial “whenever the district court is fully or partially closed by virtue of any natural disaster, civil disobedience, or other emergency situation.” Sure, the department’s effort involved going to Congress, but that’s hardly reassuring. That DOJ would seek congressional approval for this aggressive expansion of powers would amount to a sweeping suspension of habeas corpus.
Even more concerning, it appears that President Trump is correct that some claims to emergency powers are highly classified such that his lawyers have likely reinforced his confidence that he has “the right to do a lot of things that people do not know about.” As two legal experts have recently reported, these secret claims to authority “consist of draft proclamations, executive orders and proposals for legislation that can be quickly deployed to assert broad presidential authority in a range of worst-case scenarios. They are one of the government’s best-kept secrets. No presidential emergency action document has ever been released or even leaked. And it appears that none has ever been invoked.” It has also been reported that a set of highly classified emergency contingency plans relates to continuity of government in the case of “extraordinary circumstances” and these plans include some form of martial law. Goitein also references martial law options.
Overcoming Posse Comitatus
A second and related avenue of danger has to do with the Posse Comitatus Act of 1878. The Reconstruction-era statute generally prohibits the use of the U.S. military as a “posse comitatus,” literally a group of armed sheriffs, to execute the laws domestically. But it is not a complete barrier. The act expressly allows the U.S. armed forces to carry out a range of domestic missions, including law enforcement functions, when authorized by Congress or by the President if he determines that it is required to fulfill his constitutional obligations to respond promptly in time of war, insurrection, or other serious emergency.
Other legal scholars have explained that Trump could find a way past the Posse Comitatus limitations by invoking the Insurrection Act as the source of congressional authority if there were a breakdown in civil order in the course of the coronavirus. No one should take solace in the idea that such a breakdown will not occur. As we noted, the question is whether this president would claim it – enough to tie his opponents down in litigation.
Legal challenges for violation of Posse Comitatus, for example with respect to admissibility of evidence at criminal trial, have rarely been successful. A 2018 Congressional Research Service report concludes that “as a practical matter compliance is ordinarily a result of military self-restraint.”
An antecedent for this kind of emergency executive power grab was launched decades earlier and peaked under Vice President Dick Cheney who after 9/11 helped advance the radical theory of the “unitary executive,” a revisionist interpretation of the Constitution that would essentially subordinate the Article One legislative powers of Congress (including the “necessary and proper powers”) to the President’s Article Two “executive powers.” (Bill Barr is a notorious proponent of the most extreme version of it.) If followed, the theory would eviscerate the tripartite separation of powers in favor of a permanent national security state. The unitary executive theory cannot be correct, but this has not stopped the constitution-benders from pursuing their agenda.
Naked Power Grab
Third, a power-hungry president – in this case, one who does not enjoy a popular vote majority and faces uncertain reelection — could act first and take a gamble on the courts. Executive overreach is subject to legal challenge, but the question of enforceability of court judgments would remain. As Trump’s hero President Andrew Jackson supposedly quipped, the court can rule against the president but how will it enforce its judgment?
The constitution has poorly understood implications for a failed or unresolved national election due to implementation problems. Several scenarios for throwing a spanner in the works have been mooted. And we should not assume that Trump will try to thread the needle of invoking a congressional statute or using a specific loophole left in the Posse Comitatus Act. He may simply act outside the boundary of law or ethics.
The case of Bush v. Gore (2000) set a perilous precedent of the Supreme Court effectively deciding a disputed national election. A technical ballot glitch in Florida opened the door for the third branch to cast the deciding electoral vote. In that 5-4 decision, the constitutional calendar for seating the electors became the basis for suspending the Florida recount and certifying an incomplete and incorrect state result, thereby throwing the entire election. It was a case of conflicting constitutional precepts. The narrowest majority of the high court allowed the form of the electoral process to trump the substance of election integrity.
Bush v Gore was an accident waiting to happen. The next iteration may not be an accident. An unscrupulous president could grab first – for example, declaring an emergency that suppresses voting in key states – leaving others to litigate later. This would have profound implications for an election. Assuming judicial review were still possible, the ultimate check on such a bad faith overreach would hinge on the highest court, which we know from cases such as Bush v. Gore is fallible under pressure. The country cannot afford another judicial failure on that scale.
Call to Democratic Action
In the aftermath of Watergate and President Nixon’s resignation in disgrace in 1974, Congress launched a series of key investigations to shed light on the anti-democratic abuses of a secret state both at home and abroad. The Church Committee in the Senate and the Pike Committee tried to restore accountability and public trust that had been eroded during the Cold War under cover of national security exigencies. Congressional participants in those historic hearings viewed their mission as a check on the surreptitious but steady power grab by the executive branch. Our late friend Ambassador William Miller, who served as a senior staffer on the Church Committee, liked to remind us that the fight against absolutism and secret powers went back to the English civil war and “the party of parliament vs. the party of the king.”
There are many constitutional debates about “original intent” of the American founders — including whether the idea of original intent makes any sense at all. What is absolutely clear is that the drafters’ intent could not and did not advocate presidential tyranny. The spirit of 1776 and the bill of particulars against the abuses of King George III would not allow it. The system of checks and balances was designed to prevent it. The supervening purpose of the constitutional contract among the new states was precisely to guard against despotism at any level.
Exiting the Constitutional Convention in Philadelphia, Benjamin Franklin was supposedly asked by fellow citizens, “What do we have, a republic or a monarchy?” He replied with a warning: “a republic, if you can keep it.” Of the American presidency, Franklin further observed, “The first man put at the helm will be a good one. Nobody knows what sort may come afterwards… The executive will be always increasing here, as elsewhere, till it ends in monarchy.”
We still have the chance to take Franklin’s warning not as a prophecy but as a call to democratic action.
Safeguard Americans’ Right to Choose the Next President
Could our analysis be overstating the risks and seeing ghosts? After all, President Trump has said many outrageous things before only to back down. We believe it is safer to take him at his word and fall prey to a degree of alarmism than to be complacent and sleepwalk into authoritarianism.
What is to be done? In a sense, our republic’s immune system of checks and balances urgently needs a booster shot. On our view, a civic action plan should include the following elements:
Education of the public and political leaders of the coming risks, including briefing the House, Senate and Governors alike on plausible, worst-case scenarios and urged to begin planning
High-level bipartisan statement of opposition to unbridled emergency powers
Congressional hearings on the Church Committee model to reveal any classified executive powers
Congressional action to ensure a free and fair election including prohibition of voter suppression and protection of the United States Postal Service
Convening leading legal scholars to prepare for a Bush v. Gore-style court challenge.
All small-d democrats and small-r republicans should take the present danger with utmost urgency and start to prepare for it.