Emergency Authorities and the Constitutional Allocation of Election Power
The Washington Post reports that some activists close to the Trump administration are urging the use of emergency powers to change how US elections are run. That should set off alarm bells. A draft executive order reportedly invokes statutes including the National Emergencies Act, the Federal Information Security Modernization Act, and the Defense Production Act as legal foundations for more presidential control over mail-in ballots, voting machines, and other core election functions.
There are strong legal reasons to be skeptical. To begin with, the Constitution assigns election regulation to the states and to Congress—not the president. Article I, Section 4, gives state legislatures primary authority over the “times, places and manner” of elections, subject to congressional override. The president simply has no independent constitutional authority to redesign these systems.
While the National Emergencies Act allows a president to trigger statutory authorities during a declared emergency—and roughly 150 statutes provide such powers—I’m unaware of any statutory authority that the president could plausibly rely on to impose direct control over election administration. For instance, statutes such as the Federal Information Security Modernization Act and the Defense Production Act are aimed at cybersecurity and industrial supply chains in emergencies, with no mention of preempting state election law.
Over decades, Congress has given presidents immense emergency powers. But just last week in the tariffs case, Learning Resources, Inc. v. Trump, the Supreme Court instructed lower courts to view skeptically attempts to extract broad power from vague statutory language. There’s no plausible reading in which these federal emergency laws override the constitutional and statutory regimes clearly assigning election design to states and Congress.
Hopefully, the administration does not pursue this path. Elections are always high-stakes, and public trust in election processes is important. But invoking vague emergency statutes to exert more control over elections would raise the stakes—and reduce public trust in elections.