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Can Trump Suspend the Election

In the age of Trump and in the midst of the Covid-19 pandemic, Biden’s remarks about Trump’s electoral machinations deserve serious consideration.

Mark my words,” Joe Biden declared in a virtual fundraiser conducted on April 23 from his home in Wilmington, Delaware. “I think he [Donald Trump] is gonna try to kick back the election somehow, come up with some rationale why it can’t be held.”

Ordinarily, Biden’s warning would be dismissed as campaign hyperbole, the sort of overheated rhetoric that prods wealthy Democrats to open their checkbooks, but one that should not be taken literally.

In March and April, respectively, Trump cited his “strong emergency powers” and proclaimed that, “When somebody’s the President of the United States, the authority is total.”

These are not ordinary times, however. In the age of Trump and in the midst of the COVID-19 pandemic, Biden’s remarks about Trump’s electoral machinations deserve serious consideration. And while the consensus among legal scholars and political commentators is that Trump lacks the authority to suspend the election, some are genuinely troubled.

Among them are Mark Medish, who served as a senior director on the National Security Council in the Clinton Administration, and Joel McCleary, who worked as a deputy assistant to President Jimmy Carter. The veteran policy analysts outlined their concerns in a lengthy article titled “The Looming Crisis of Emergency Powers and Holding the 2020 Presidential Election,” posted May 4 on the Just Security website.

Medish and McCleary begin their analysis with a survey of Trump’s pretensions to unbounded authority, starting with his boast last July that under Article II of the Constitution, “I can do whatever I want as President.” In February, they note, Trump went further, referring to himself as the “chief law enforcement officer of the country” in defiance of the Justice Department’s post-Watergate commitment to political independence. In March and April, respectively, Trump cited his “strong emergency powers” and proclaimed that, “When somebody’s the President of the United States, the authority is total.”

Also in April, Trump asserted that he had the power to adjourn Congress at will to allow him to make recess appointments. In addition, he has called on supporters in Michigan, Minnesota, Virginia, and elsewhere to “liberate” their states from coronavirus-related shutdowns. Fanatical elements of his base have responded with armed protests replete with semi-automatic rifles, MAGA hats, and at least in Michigan, Confederate flags.

Medish and McCleary aren’t only concerned about Trump’s unhinged and incendiary statements. They’re even more alarmed by his dictator-in-progress actions, such as his firing of inspectors general from several executive-branch departments. They also cite Trump’s stacking of the federal courts with rightwing ideologues, and his redirection of Defense Department funds to construct his Southern border wall.

Above all, Medish and McCleary worry about what might come next in light of the expansive powers accorded to the President by the National Emergencies Act (NEA) of 1976.

This act, passed in the aftermath of Watergate to rein in presidential power, has in practice been a failure, in large part because it doesn’t define what constitutes a national emergency.

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According to experts including Elizabeth Goitein, co-director of the Liberty and National Security Program at the Brennan Center for Justice, the NEA accords the President complete discretion to issue an emergency declaration, as long as the commander in chief specifies at least one statutory power that will be used to address the emergency.

In February 2019, Trump invoked the NEA to redirect $2.5 billion in federal funds for his border wall, citing an obscure section of the United States Code dealing with deployment of the Army’s “Ready Reserve” units. In July 2019, the Supreme Court, in a 5-4 ruling decided along ideological lines, wth court conservatives in the majority, overturned a lower-court ruling that had blocked the funding transfer. In October, Trump vetoed a bipartisan bill that Congress had passed to repeal the emergency decree.

Although the Trump campaign has dismissed Biden’s prediction of electoral delay as “the incoherent, conspiracy theory ramblings of a lost candidate who is out of touch with reality,” there is no reason to rest easy with assurances offered on behalf of a President who has embraced such an expansive view of executive power.

Given Trump’s oft-repeated false allegations about election fraud in 2016, his musings about not accepting a loss in 2020, his opposition to voting by mail, and above all, his fear of losing the next election, it makes sense to think that Trump would deploy the NEA to stave off defeat, if he thought he could get away with it.

Fortunately, it’s doubtful that he could.

Under Article II of the Constitution, Congress sets the date for convening the Electoral College and counting the votes that determine who gets to occupy the Oval Office. By statute, that date is the “first Monday after the second Wednesday in December.” Another federal statute sets the date for the general election as the first Monday in November. No executive order or emergency declaration could legally alter those dates.

The Constitution also offers protections against a would-be autocrat who refuses to leave office. Article II stipulates that the President “shall hold office for the term of four years.” And the Twentieth Amendment states that “the terms of the President and the Vice President shall end at noon on the 20th day of January.”

Rather than delaying the election, Trump and his Republican cronies are more apt to engage in the tried and true techniques of voter suppression that have served them well for decades, including gerrymandering, purging voter rolls, and rigid enforcement of voter ID requirements. There is also a chance that if the popular vote totals in any states are disputed, the election could wind up before Congress like the election of 1876 or the Supreme Court in a sequel to the infamous Bush v. Gore decision, which handed the presidency in a 5 to 4 vote to George W. Bush in 2000.

Then again, we can’t entirely rule out the possibility that an increasingly paranoid Trump, behind in the polls, could declare martial law. As he might explain in a fevered address from the Rose Garden, he would do so because of the pandemic, or to stave off a coup by the ever-plotting “deep state,” or to thwart an invasion of “Asian murder hornets.”

As darkly comic as it might seem, with the backing of sufficient segments of the military and neo-fascist militia groups across the country, Trump might just decide it’s time to pull the ripcord on the Constitution once and for all.

DOJ

Bill Blum
The Progressive

Bill Blum is a Los Angeles lawyer and a former state of California administrative law judge.