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Analysis

There Are No Extraordinary Powers a President Can Use to Reverse an Election

Trump’s supporters floated several ideas for how he could have tried to hold on to power after losing the election, none of them workable.

In the weeks lead­ing up to Pres­id­ent Biden’s inaug­ur­a­tion, Donald Trump’s support­ers urged him to take vari­ous drastic meas­ures to over­turn the elec­tion results, includ­ing declar­ing a national emer­gency, invok­ing the Insur­rec­tion Act, impos­ing martial law, and “tempor­ar­ily suspend­ing the Consti­tu­tion”. Talk of these poten­tial end-runs around demo­cracy even reached the White House, where indi­vidu­als who had the ear of the pres­id­ent seemed to believe that simply saying the words “emer­gency powers” would some­how allow the pres­id­ent to remain in office indef­in­itely.

Biden support­ers for the most part refused to be distrac­ted and kept their focus on the trans­ition. Some feared that discuss­ing these schemes, even to debunk them, could give them more currency. Now that the trans­fer of power is complete, however, it is import­ant to talk about why none of these plots would have worked. To be sure, emer­gency powers give the pres­id­ent a fright­en­ing amount of discre­tion in a crisis — but none allows the over­turn­ing of an elec­tion.

Take the rumors that Trump would declare martial law. This term does not have an estab­lished defin­i­tion, but it usually refers to the milit­ary taking over civil­ian govern­ment in an emer­gency. While state offi­cials have declared martial law many times and Congress has author­ized its use in the past, the pres­id­ent currently has no author­ity to declare martial law. Any attempt to do so would be barred by the web of laws that Congress has enacted to govern the domestic activ­it­ies of the armed forces — includ­ing the Posse Comit­atus Act, which prohib­its the use of federal troops to execute the law without express congres­sional author­iz­a­tion. Accord­ing to well-settled prin­ciples of consti­tu­tional law, the pres­id­ent cannot act in a way Congress has forbid­den unless the Consti­tu­tion gives the pres­id­ent “conclus­ive and preclus­ive” power over the disputed issue. Far from giving the pres­id­ent total author­ity over these matters, the Consti­tu­tion grants most of the relev­ant powers to Congress.

Nor could the pres­id­ent over­turn the elec­tion results by invok­ing the Insur­rec­tion Act. This stat­utory excep­tion to the Posse Comit­atus Act does give the pres­id­ent broad latit­ude to deploy the milit­ary domest­ic­ally. However, the purposes for which the Insur­rec­tion Act may be used are not infin­ite. Troops may be deployed to suppress armed insur­rec­tions or to execute the laws when local or state author­it­ies are unable or unwill­ing to do so. Their role is then limited to quelling the viol­ence or remov­ing the obstruc­tion to enfor­cing the law. The Insur­rec­tion Act has signi­fic­ant poten­tial for abuse in the form of federal troops being deployed to suppress polit­ical dissent. But invok­ing it does not put the milit­ary “in charge” or suspend the normal func­tions and author­it­ies of Congress, state legis­latures, or the courts. It certainly does not grant the pres­id­ent the power to change the outcome of an elec­tion or over­stay his term in office.

Some reports simply spec­u­lated that Trump might declare a national emer­gency to usurp the pres­id­ency. These rumors betrayed a funda­mental misun­der­stand­ing of how emer­gency powers work in the United States. The declar­a­tion of a national emer­gency is not a magic wand that allows a pres­id­ent to do whatever he or she wants. It’s merely a proced­ural step neces­sary to unlock a number of other stat­utory powers that Congress has gran­ted over time. A pres­id­ent would have to identify which of those powers he or she is invok­ing, and while there are well-placed concerns about what some of those powers might allow, none of them permit, for example, cancel­ling or rerun­ning an elec­tion.

More specific­ally, one of Trump’s attor­neys reportedly urged him to seize voting machines by rely­ing on a partic­u­lar 2018 national emer­gency declared in Exec­ut­ive Order 13848. That order invokes the Inter­na­tional Emer­gency Economic Powers Act to author­ize economic sanc­tions on any “foreign person” that the pres­id­ent (or his designee) deems to be inter­fer­ing in a U.S. elec­tion. The pres­id­ent has wide latit­ude to determ­ine that such inter­fer­ence has taken place, and he or she can then freeze the assets of the offend­ing person. But voting machines are presum­ably owned by the states who use them, not any foreign entity. And even if that weren’t the case, seiz­ing the machinery would do noth­ing to alter the vote tallies and the states’ certi­fic­a­tions, which already had been completed.

Perhaps the most off-base sugges­tion was that Trump should “suspend the Consti­tu­tion” or “suspend civil liber­ties.” Simply put, this is impossible. The federal govern­ment is always bound by the Consti­tu­tion and possesses only the powers it grants. The Consti­tu­tion allows Congress to suspend the writ of habeas corpus under certain condi­tions, but neither Congress nor the pres­id­ent has the power to set aside any other consti­tu­tional right. As the Supreme Court explained in the 1866 case Ex parte Milligan, “the Consti­tu­tion of the United States is a law for rulers and people, equally in war and in peace, and covers with the shield of its protec­tion all classes of men, at all times, and under all circum­stances.” In that decision, the Supreme Court affirmed that even during the Civil War — undoubtedly the most danger­ous emer­gency this coun­try has ever faced — the Consti­tu­tion still applied.

This brings us to the final barrier that would have kept Trump from stay­ing in office: the 20th Amend­ment. Noth­ing in the Consti­tu­tion is more clear than that the pres­id­ent’s term ends after four years. Had Trump some­how succeeded in prevent­ing Joe Biden from being inaug­ur­ated, he would still have ceased to be pres­id­ent at noon on Janu­ary 20, and Nancy Pelosi, as speaker of the House, would auto­mat­ic­ally have become acting pres­id­ent. In the end, no legal mech­an­ism was ever going to allow Trump to continue being pres­id­ent after he lost the 2020 elec­tion. The only path to a second Trump term would have been a full-blown coup d’état — some­thing the milit­ary’s top lead­ers made clear they would not support.

There is good reason to worry about the nature and extent of U.S. emer­gency powers. The unchecked discre­tion that some of them confer creates far too much poten­tial for abuse. Certain powers — includ­ing the Insur­rec­tion Act and the emer­gency sanc­tions author­ity — could indeed be used in ways that could under­mine demo­cracy and inhibit a fair and free elec­tion. But once an elec­tion has taken place and the votes have been tallied, there is no emer­gency power that enables a losing incum­bent to stay in the White House. Allow­ing a contrary narrat­ive to take hold would be just as danger­ous to our demo­cracy as the powers them­selves.