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What Are Trump's Options to Better His Chances in the Election? Part 1

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What Are Trump's Options to Better His Chances in the Election? Part 1

2020-06-11 18:50:46

By Laura Tucker,  Image: Donald Trump (Image source: Screenshot)

Donald Trump is used to exerting his control to get what he wants. With his poll numbers tanking more and more each day, his presumptive Democratic challenger, former Vice President Joe Biden, suggested Trump may try to postpone the November election, using the coronavirus pandemic as an excuse. Is this possible? Can he postpone it under the guise of fears of the pandemic, with the thought that he could delay it long enough to improve his poll numbers?

In two words: not really. 

The Constitution states, "The Congress may determine the time of choosing the Electors and the day on which they shall give their votes: which day shall be the same throughout the United States."

So this is not a decision that's left to the president. This makes it appear as if only Congress can postpone the election. This makes sense, as if a president running for reelection could choose the election date, he could set a day that was favorable to him. To have only Congress be able to change the date, it keeps it fairer for all parties involved. 

In 1948 Congress used that authority to set the following law: "The electors of president and vice president shall be appointed, in each state, on the Tuesday next after the first Monday in November, in every fourth year succeeding every election of a president and vice president."

Of course, voters aren't really choosing the president, per se, but selecting members of the Electoral College in each state. They in turn select the president, but generally, the popular vote and the Electoral College coincide. But in 2016, Trump won the Electoral College, while former Secretary of State Hillary Clinton won the popular vote by 3 million. That was the largest margin ever between the Electoral College votes and the popular vote. 

The specification of "the time for choosing the Electors," however, is for the most part the same day as the popular vote, as we just cast one vote each.

While Congress could change the date, it would take both the House and the Senate to approve it, and with Democrats having the majority in the House, that seems unlikely. 

Besides, the 20th Amendment states, "The terms of the president and the vice president shall end at noon on the 20th day of January." So while Election Day could be changed, Trump would still have to vacate the White House and Oval Office at noon on January 20.

There is still discussion about an "emergency power," however, which Trump discusses often, as he is of the belief as president he can do what he wants. But the Constitution does not award him that. 

The closest the country has come to a question of that power was in a case the Supreme Court eventually decided. The Steel Seizure Case came up in 1952 when the late President Harry Truman issued an order that directed the seizure of United States steel mills. He argued that a possible work stoppage could create a national catastrophe in the midst of the Korean War.

The closest we have come to that was when Trump ordered meat processing plants to stay open amid the pandemic. Plants were shutting down because they were losing too many employees to the virus. As president, he issued an executive order, invoking the Defense Production Act. There were many people really upset about forcing plants to stay open, knowing more people would become ill, but nothing really ever came of it. It just seemed like there were bigger fish to fry, so to speak. 

While Trump announced his executive order via a tweet, Truman explained in a national address, "Our national security and our chances for peace depend on our defense production. Our defense production depends on steel."

The government argued that under the Constitution, Truman had "inherent power" to issue this demand, that the government felt was "supported by the Constitution, by historical precedent, and by court decisions." 

The Supreme Court, however, turned the order over: "The Founders of this Nation entrusted the lawmaking power to the Congress alone in both good and bad times. It would do no good to recall the historical events, the fears of power, and the hopes for freedom that lay behind their choice."

Justice Robert Jackson said the following of the authors of the Constitution: "They knew what emergencies were, knew the pressures they engender for authoritative action, knew, too, how they afford a ready pretext for usurpation. 

"We may also suspect that they suspected that emergency powers would tend to kindle emergencies. Aside from suspension of the privilege of the writ of habeas corpus in time of rebellion or invasion, when the public safety may require it, they made no express provision for exercise of extraordinary authority because of a crisis. I do not think we rightfully may so amend their work."

What this may say about Trump's power to force essential workers to go to work even if they fear getting sick is irrelevant at this point. But there's much that can be gleaned here in terms of what Trump can do to prevent an election from taking place in November. 

Again, not much. He cannot issue an order and change the date willy nilly. That's not up to him. That's up to Congress, and they would have to agree, and frankly, that is never going to happen. Even if it did, Trump would still have to vacate the Oval Office and the White House on January 20, whether a new president has been elected or not.

It's also not up to him to do this as an emergency order, as seven decades ago, Truman was told he couldn't override Congress. Everyone knows what an emergency is, and Trump can't issue an emergency order that dictates what an emergency is. 

Is there anything Trump can do to change the trajectory of this election season? We'll explore that in part 2 tomorrow.

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