The Post has an article today, an exclusive they say, about a draft executive order purportedly being circulated between the White House and various conspiracy theorists and right-wing extremists in its broader circle. The proposed order claims that China has been found to be interfering in U.S. elections — specifically rigged the 2020 election in Joe Biden’s favor — and that as a result of that the president, as commander-in-chief, can and must directly take control of U.S. elections for the midterms and the 2028 presidential elections.
Two points merit saying on this. The first is that these are the rehashed, insane theories that were literally and figuratively laughed out of court in 2020. These are all absurd. Everybody knows they are absurd and false. The legal theory is what demands our attention. The authors of the order believe that if something is an emergency the president can invoke a kind of hidden dictator clause in the Constitution which allows him to assert powers which the Constitution explicitly forbids to him. This is not so. They secondarily believe in what we might call a “because” or “therefore” logic or clause. So because we have found that Threat X exists, the president can do whatever he wants to combat that threat. And as commander-in-chief, he can do anything he wants. This is also not so.
The Post, as is typical for most MSM publications, doesn’t quite know how to deal with a set of facts like this and treats it as a kind of mystery since such a non-existent power has never been claimed or litigated. So, for instance, down toward the bottom of the article we read this: “Article I, Section 4 of the Constitution assigns power to regulate elections to state legislatures and Congress, with no role for the president … A presidential emergency on elections has never been tested in court.” It’s true that this has never been tested in court. But lots of absurd things have never been tested in court.
Some people might get up in arms about this. And it’s definitely right to be up in arms in the sense of being vigilant or ready to fight over it. But this is a bogus theory and a bogus constitutional argument. I think there is little chance any judges will go for it. But more to the point, states, these subordinate but separate sovereignties, have their own standing to refuse unconstitutional invasions of their sovereign authority. Trump’s angle is always to keep others guessing about what he will do or what he’ll be allowed to do by this or that corrupted agency or court. Don’t do that. Every state should make clear proactively that an illegal military takeover of their state’s sovereign power to conduct its own elections will not be tolerated, accepted or submitted.
Period. End of story. The issue is not simply President Trump’s never-ending efforts to destroy the Republic, violate the Constitution, etc. Again, the Constitution is crystal clear about who runs and controls elections. States do that with guidelines set by Congress. Period. The issue is whether we — everyone, the opposition, everyone who purportedly needs to be in perpetual orbit around Donald Trump’s degenerate brain — need to always be allowing him the initiative. Does everyone have to be waiting and thinking how to respond to his actions? No. States are obligated to maintain their unchallenged and unchallengeable sovereign power to conduct elections, in line with laws passed by Congress. Nothing anyone says to the contrary matters. Not any executive order. Not any court. No one. Period. End of story.