Trump's executive order (on voting) will fail.

Like tariffs, the Supreme Court will also strike this down.

If you liked this article, consider becoming a paid subscriber. It keeps this newsletter free for all. And if you sign up as a founding member you can access my 12-week Constitution course using my book, What Does the Constitution Actually Say?, starting March 14th. You can also sign up for a free preview class I’m doing March 7th with SwingLeft here.

I’ve previously covered ‘how elections work’ here. I also recommend watching two episodes of my PBS show, Civics Made Easy — on elections and voting rights (really, voter suppression). After viewing, I promise you’ll have a better idea of why Trump’s executive order on elections has no chance of making it through the courts (state attorneys general, across the country, are ready to sue).

Besides the clear constitutional issues, the legal justification is odd. When election lawyer Marc Elias asked the lawyer pushing this executive order, Peter Ticktin, for his reasoning, he shared this memo (it’s boring so I’ve bolded the relevant parts):

Actual image of the president’s proposed EO.

The President of the United States may invoke emergency powers in response to an election emergency involving foreign interference, provided certain statutory and procedural requirements are met. The authority to do so primarily derives from the National Emergencies Act (NEA) and the International Emergency Economic Powers Act (IEEPA).

Under the NEA, the President is authorized to declare a national emergency if an extraordinary situation arises that necessitates the use of special or extraordinary powers conferred by Congress. Such a declaration must be transmitted to Congress and published in the Federal Register. 50 USCS § 1621, 50 USCS § 1631. The NEA also requires the President to specify the statutory provisions under which emergency powers will be exercised, either in the declaration itself or through subsequent executive orders. 50 USCS § 1631.

The IEEPA further grants the President authority to address “unusual and extraordinary threats” originating outside the United States that impact national security, foreign policy, or the economy. This authority includes the ability to regulate or prohibit transactions involving foreign property or interests, provided the President has declared a national emergency under the NEA. 50 USCS § 1702, 50 USCS § 1701, United States v. Anvari-Hamedani, 378 F. Supp. 2d 821 (2005). For example, Executive Order 13848, issued under the IEEPA and NEA, declared a national emergency to address foreign interference in U.S. elections, citing such interference as an extraordinary threat to national security and foreign policy . Appendix A to Part 579— Executive Order 13848, EO 14024 Executive Order 14024 of April 15, 2021 Blocking Property With Respect To Specified Harmful Foreign Activities of the Government of the Russian Federation.

Judicial precedent also underscores the constitutional limitations on the President’s emergency powers. In, Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952). [T]he Supreme Court held that the President does not possess inherent emergency powers absent statutory authorization, emphasizing the need for congressional approval to exercise extraordinary authority. 50 USCS § 1622.

In conclusion, the President may utilize emergency powers to address foreign interference in elections, provided the requirements of the NEA and IEEPA are satisfied, and the actions taken fall within the scope of statutory authority. These powers are subject to procedural safeguards and judicial review to ensure compliance with constitutional and statutory limits.

I’ll respond quickly:

1. Neither the National Emergencies Act — nor the International Emergency Economic Powers Act — let the president regulate, oversee, or change elections. These laws give the president additional powers in emergency situations, but nowhere in the laws are elections mentioned. At all.

2. The author of the memo, Peter Ticktin, admits this. He says the laws permit emergency powers for national security, foreign policy, and the economy. If the laws granted election powers, he would’ve said so (since it’s his whole argument).

3. Ticktin also says the Supreme Court has ruled that presidents have no inherent emergency powers unless authorized, specifically, by Congress. As of this writing, that authorization doesn’t exist (and I don’t see it happening soon, thanks to the filibuster and the GOP’s hesitance to scrap it).

4. Ticktin acknowledges that, like any executive order, this would be subject to judicial review. “Judicial review” lets federal courts strike down laws and executive orders if judges find them unconstitutional. And the Constitution says, clearly, that elections are up to states (unless Congress wants to alter congressional elections, presidential Election Day, or the day the electors meet).

The irony is that, just days ago, the Supreme Court invalidated Trump’s tariffs under the IEEPA, the same law being cited here. Why? Because the justices noted the IEEPA doesn’t let the president set tariffs (only economic sanctions like freezing assets, halting imports/exports, or blocking transactions). If the International Emergency Economic Powers Act doesn’t apply to tariffs — which are very much economic — then it sure as hell doesn’t apply to elections (which are very much not).

If you want to know what I think (since you’re reading this, maybe you do), my gut is that the administration will try to use the Fulton County, GA election office raid to claim foreign interference as justification for the order. But again, neither of the laws cited in the memo mention elections. And it’s precisely because the IEEPA doesn’t mention tariffs that SCOTUS struck it down.

Lastly, if you think my bias is getting in the way of my thinking, here’s the Cato Institute — a very conservative think tank — saying the same.

As I mentioned on Substack yesterday, that Washington Post article ran hours after John Thune, the Senate majority leader, reaffirmed that Senate Republicans will not mess with the filibuster to pass the SAVE Act. Maybe the timing’s coincidental…or not.

DM me or comment with any questions. And if you want to support my work of deciphering the news in normal-person-speak (so we can all participate in our democracy and hold the government accountable), become a paid subscriber here (or just subscribe for free). Paying subscribers get access to invite-only Zooms and can email me personally with government questions.

Have a great weekend — and let me know what you think of the PBS episodes.