Delay the Election? Presidents Often Do Things They Can’t Do

Trump Won't Steal the Election, but Your Governor Might | The NationThe stock response to President Donald Trump’s suggestion that the general election might be delayed because voting during a pandemic would involve a record number of mail-in ballots, a format he argues is unreliable and susceptible to fraud, is that he doesn’t have that power.

NBC News is typical: “The president has no power to delay an election.” [Emphasis is mine.]

What the president understands, and most mainstream commentators fail to accept, is that it is easier to ask for forgiveness than to get permission. That goes double when the powers in question are limited by a document that lies in tatters, repeatedly ignored.

            Liberal politicians and news outlets point out that the Constitution assigns the scheduling of elections exclusively to Congress. Republicans tepidly (and troublingly) stopped short of denying Trump’s power to push back the big day, while insisting that the election ought to take place on time. “Never in the history of this country, through wars, depressions and the Civil War, have we ever not had a federally scheduled election on time. We will find a way to do that again this November 3rd,” Senate Majority Leader Mitch McConnell said.

In an era of rampant cynicism it is sweetly naïve and the amusingly charming to see Americans put so much faith into the constitutional checks and balances they learn about in high school civics class. “‘Trump can’t delay the election,’ experts say,” reads a headline in The Washington Post.

            Since when has a 221-year-old piece of paper stopped presidents from doing anything?

I think first of war powers. Article 1, Section 8 of the U.S. Constitution clearly states that the right “to declare war” resides exclusively with Congress. Such key founders as George Washington, James Madison, Thomas Jefferson and Alexander Hamilton—men whose right to define original intent can hardly be questioned—believed that presidents could not dispatch troops without legislative approval except in cases of immediate self-defense. Congress signed off on sending soldiers and sailors to the Quasi-War with France in 1798, naval conflicts with the Barbary States of Tripoli and Algiers, and clashes with Native American tribes in the West.

Congress has since abdicated its war-making powers to the executive branch. Congress hasn’t issued a formal declaration since World War II. Yet we have fought countless wars. Presidents have launched military attacks against Korea, Vietnam, Libya, Grenada, Lebanon, Panama, Serbia, Syria, Iraq and Afghanistan. Some of these wars of aggression were legalistically constructed as “police actions” or “peacekeeping missions” under the aegis of the UN. The fact remains, this is not what the drafters of the Constitution intended. And it has never been amended. Presidents do what they want; lawyers twist logic to justify their illegal slaughters.

President Abraham Lincoln earns democracy points for holding the 1864 election during the Civil War. Yet he suspended habeas corpus and ignored a ruling by the chief justice of the U.S. Supreme Court saying that he didn’t have the power to do so. George W. Bush’s Military Commissions Act of 2006 also suspended habeas, for anyone the U.S. government arbitrarily defined as an “enemy combatant.” Until the Supreme Court ruled against him two years later, Congress was complicit with the MCA. Even after the court ruling, the internment facility at Guantánamo Bay remains open; 40 men remain there, not one of whom has ever been charged or tried under basic constitutional standards.

FDR almost certainly didn’t have the constitutional right to send 127,000 Japanese-Americans to internment camps during World War II. Yet he did.

From domestic surveillance by the NSA that violates the agency’s founding charter to asset forfeiture programs that allow the police to seize money and property from people who have never been charged, much less convicted of a crime, Americans live in a society oppressed by a political class that takes no notice of constitutional limits it deems inconvenient.

Does the president have the legal right to delay an election? No.

Does he have the power? Yes, unless We The People refuse to accept it.

(Ted Rall (Twitter: @tedrall), the political cartoonist, columnist and graphic novelist, is the author of the biography “Political Suicide: The Fight for the Soul of the Democratic Party.” You can support Ted’s hard-hitting political cartoons and columns and see his work first by sponsoring his work on Patreon.)


  • alex_the_tired
    August 3, 2020 7:58 PM

    What happens if, on the Monday evening before the election, Trump declares a 48-hour state of emergency (as he has the power to do) and orders a national curfew?
    Counting just the mail-in ballots? That’ll never fly. The Supremes will have to junk the whole election and pass it to the Congess to vote on the president and vice president. The lower-level elections can be redone. And with the usual voter disenfranchisement at the state level, the Republicans will probably win just enough seats to vote for Trump in 2021.

  • Does the president have the legal right to delay an election? No.
    Does he have the power? Yes, unless We The People refuse to accept it

    Alas, Ted, you won’t….


  • There I at least 4 levels of purposes – if any – one could ascribe here:

    1) Keep himself in the news. That just worked, d’oh!
    [as in 2016]

    2) Forestall discussions about voting irregularities: make people win the battle (well, we let you vote at all) but lose the war (we may have dropped your ballots by a deserted country road, our bad).
    [as in 2016 when he claimed voter impersonation to shift attention from vote suppression]

    3) Call on supporters to not go for health and safety reasons, ineffectually try to postpone election, then claim election is compromised.
    [he also tried to lose in 2016 – but failed…]

    4) Actual trial balloon to see who among the alphabet soup agencies will go along and prepare the public for outrage overload fatigue.
    [stumbling into a coup in the same way he stumbled into the oval office]

  • Trump ain’t no Godwin (the name usually used these days), he ain’t got no Black Shirts (or Black footer pants, as in the Wodehouse satire), so he could order the election delayed, and the people who run things would have it anyway, and he’d look even more the fool.
    My problem is, based on the record, Biden is probably worse. And Trump is much too terrible to vote for.
    Green, maybe?
    (Trump’s already tweeted he’s toast.)

  • I don’t think he’ll delay it. He will just delay the counting of the votes by defunding the post office, brownshirt intimidation and his pre-existing Covid bungling. Then when the voter is sufficiently delayed it will go the to the Supreme Court, where they will do just what they did in 2000. All nice and legal. And just like then, the Democrats will roll over for them. Maybe we’ll get some sarcastic clapping, but basically they will let it happen.