The Looming Crisis of Emergency Powers and Holding the 2020 Presidential Election
May 4, 2020 | Mark Medish and Joel McCleary | Just Security
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. …
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. …
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
- Overcoming Posse Comitatus
- Naked Power Grab