Unindicted war criminal and Trump’s new best friend, torture memo author John Yoo visited the White House last Thursday. Nothing good can come of this unholy alliance. Trump, new legal guru meet at White House:
John Yoo told the Las Vegas Review-Journal on Saturday that he met with Trump in the Oval Office for about an hour.
[B]ut he declined to say what they talked about. He said Trump was not “Nixonian in the bunker and paranoid and dark.”
The law professor told the Review-Journal that White House counsel Pat Cipollone also was present.
Their meeting comes after Yoo wrote a piece for National Review in June asserting that the Supreme Court ruling that blocked Trump’s plans to end the Obama administration’s Deferred Action for Childhood Arrivals program (DACA) could help the president institute future policies without congressional approval.
In the piece, Yoo said Chief Justice John Roberts’s ruling “makes it easy for presidents to violate the law, but reversing such violations difficult,” adding that the Administrative Procedure Act would need to be used to undo presidential actions.
Yoo told the Review-Journal that he spoke to Trump over the phone about his article and commented that the president “was really on top of things.”
During his “Fox News Sunday” interview last month, Trump said he intended to write his own immigration and health care plans in the next few weeks because of the Supreme Court ruling.
“The Supreme Court gave the president of the United States powers that nobody thought the president had, by approving, by doing what they did — their decision on DACA,” Trump said.
My guess is that it is John Yoo who put this damn fool idea into Trump’s head: Days After Floating Election Delay, Trump Threatens Mail-in Voting Executive Order:
President Donald Trump on Monday erroneously claimed that he had the authority to issue an executive order to restrict the growing number of states that are moving towards universal mail-in voting for the 2020 election due to the ongoing pandemic. Legal experts were quick to point-out that any such order would undoubtedly be unconstitutional, as presidential elections are run by individual states.
During Monday’s coronavirus press briefing, One America News reporter Chanel Rion — who recently theorized on the possibility that the coronavirus was created in a North Carolina lab — asked the president whether he was considering an executive order “addressing mail-in ballots.”
After stating that his administration planned to sue Nevada for passing a law allowing universal access to mail-in voting ballots — a system that’s already in place in five U.S. states — Trump said he was planning on issuing an executive order.
Note: Nevada joins seven states that plan to automatically send voters mail ballots amid the coronavirus pandemic, including California and Vermont, which moved earlier this summer to adopt automatic mail ballot policies.
“Well, I have the right to do it. We haven’t gotten there yet, but we’ll see what happens” Trump said in reference to the order.
“The President has no power—none—to change individual *state* rules regarding mail-in voting by Executive Order,” wrote University of Texas law professor and constitutional scholar Steve Vladeck. “As usual, this is just bluster—designed not to lead to any actual action, but only to further create a cloud around an election potentially decided by mail-in ballots.”
The President has no power—none—to change individual *state* rules regarding mail-in voting by Executive Order.
As usual, this is just bluster—designed not to lead to any actual action, but only to further create a cloud around an election potentially decided by mail-in ballots. https://t.co/kQleqAGRxm
— Steve Vladeck (@steve_vladeck) August 3, 2020
Democratic lawyer Marc E. Elias similarly contradicted the president’s claim about having the right to issue an executive order on mail-in voting.
“Donald Trump does not have the power to affect how states run their elections. He is a pathetic man trying to cling to power in a country that wants him gone,” he wrote.
Donald Trump does not have the power to affect how states run their elections. He is a pathetic man trying to cling to power in a country that wants him gone. https://t.co/YjBmOgszg9
— Marc E. Elias (@marceelias) August 3, 2020
Trump also continued draw a false distinction between mail-in ballots and absentee ballots, claiming the former will lead to rampant fraud while the latter “is great.” However, election experts have repeatedly debunked the notion that there is any substantive distinction between the two methods of voting, as all ballots that are sent through the mail undergo the same rigorous verification process before being counted.
Due to the widespread practice of mail-in ballots, not just here in Arizona but in many other states for years, and other states now accommodating absentee (mail-in) voting to make voting safe during the coronavirus pandemic, At least 77% of American voters can cast ballots by mail in the fall:
As part of his diatribe against mail-in ballots (which again, are the same as absentee ballots), Trump also cited to the delayed reporting of election results in New York as evidence of voter fraud. This was also not true, as CNN fact-checker Daniel Dale pointed out.
Trump cited the slow count of mail votes in NY primaries as evidence of voter fraud, saying there were "fraudulent ballots, I guess." There has been no evidence of voter fraud, much less widespread fraud; rather, administrative and planning problems. https://t.co/aGRNyYsBva pic.twitter.com/QlXNJMB2Yf
— Daniel Dale (@ddale8) August 3, 2020
Trump also awkwardly referenced an election fraud prosecution in West Virginia — “they indicted a postman for doing something bad, you know that” — which Trump suggested (without reference to specific additional cases) was a widespread problem. The West Virginia case involves ballots that were altered from Democrat to Republican.
Trump went on to say the U.S. Postal Service won’t be able to handle the unprecedented surge of mail-in ballots—a claim the USPS contradicted in a statement Monday night:
“The Postal Service has ample capacity to adjust our nationwide processing and delivery network to meet projected Election and Political Mail volume, including any additional volume that may result as a response to the COVID-19 pandemic,” the agency said.
Law & Crime explains, Here’s Why Donald Trump Doesn’t Have the Legal Authority to Ban Mail-In Voting:
When asked by a member of the press about whether he was or wasn’t contemplating an executive order restricting mail-in voting, President Donald Trump responded,“Well, I have the right to do it. We haven’t gotten there yet, but we’ll see what happens.”
Although President Trump seems absolutely convinced that he has the authority to ban mail-in voting via executive order, those familiar with election law know otherwise.
Let’s break it down. First, we’ll discuss executive orders generally.
Executive orders are one type of written instruction that a president can use to act. Other methods of action are available too – like memoranda or proclamations. There are some differences among these different kinds of presidential directives. Most notably, executive orders are usually what are used to direct government officials and agencies (as opposed to private businesses or individuals), and executive orders are usually published in the Federal Register, while other kinds of directives may remain unpublished.
Majestic as executive orders may sound, they only allow a president to exercise power that the president already has. The founders of our nation were sticklers about that. The president only got the powers specifically granted to him by the Constitution, or powers that were delegated to the president via Act of Congress. (Sometimes those are the subject of litigation: congress can’t delegate too much of its authority to the president without breaking the constitution.)
As the chief executive, the president’s function is to enforce laws – not to create them. And giving a law a new name (like “executive order”) doesn’t change the rules.
Things can seem a little confusing when we begin talking about federal administrative agencies. The executive branch is made up of more than just the president. Presidents often use executive orders to direct executive agencies to do or to not do certain things (such as President Barack Obama’s DACA order, which directed DHS to de-prioritize certain immigrants for deportation). When those directives to agencies have great effect on the lives of individuals, they seem a lot like the passage of a law. However, for an executive order to survive judicial scrutiny, it must stay within the scope of a president’s existing authority. That’s why the DACA order was legal (the president already had authority to direct DHS how to allocate its resources), and why Bill Clinton’s order prohibiting federal contractors from replacing striking employees wasn’t (it conflicted with federal labor law).
Bottom line: President Trump cannot legally issue an executive order banning mail-in voting unless he already has authority (either directly from the Constitution or secondarily through an Act of Congress) to ban mail-in voting. And it’s clear that he has no such authority. Here’s why.
The Constitution creates the often-criticized, always-complicated method of the electoral college for electing the nation’s president. Complex as the method is, though, it contains no role for the executive branch in elections.
Individual states make their own laws and create their own systems for allowing citizens to cast votes, and then “presidential electors” ultimately deliver those votes to Congress. Under Article II, §1, cl. 4, the “Elections Clause,” Congress has the authority to choose the time and day on which members of the electoral college cast their votes – but no authority to set up election rules for the states. That’s why elections can look markedly different from state to state.
It’s noteworthy that the Constitution has separate clauses for Congressional elections and for presidential ones. Congress’s power to regulate presidential elections is less than its power to regulate House and Senate elections. Again, though, the Constitution lays out exactly zero power for the executive branch – and there has been no subsequent Act of Congress to change things.
Experts in election law typically agree that Congress has at least some power to protect the integrity of a presidential election by postponing or other methods in the face of a national emergency. That’s Congress, though; not the president.
Some believe that Congress could delegate a portion of its authority regarding elections to the president; however, there is significant disagreement among experts as to what Congress could constitutionally delegate to the executive branch. In the case of President Trump and mail-in voting, this is purely an exercise in hypotheticals. Congress hasn’t delegated to him any power to ban mail-in voting. He has no constitutional authority to override state election laws.
Plus, there’s the Fourteenth Amendment, which guarantees the right to vote to all Americans, thereby limiting even the states’ rights to adopt overly-burdensome election laws. It’s not even entirely clear that individual states could entirely ban mail-in voting – but what’s absolutely certain is that whatever authority the states have, the federal government has less.
So where does this leave us with respect to Trump’s boast about unilaterally banning mail-in voting when he finally gets around to it? If he does issue the executive order he mentioned, everyone from individual voters to state secretaries of state to members of the electoral college would likely have standing to challenge that order in court. Once litigation begins, the outcome wouldn’t be much of a nail-biter: there is no legal basis for Trump president to override state election procedures, and the order would be struck down on that basis.
As Jennifer Rubin of the Washington Post says, It’s time to short circuit Trump’s attack on voting by mail (excerpt):
In [news] coverage, it is essential to debunk each of these [claims] rather than present them as legitimate positions and proposals.
It is not acceptable for Republican flacks to propagate the false idea that “absentee voting” is fine but “voting by mail” is not. The two are essentially the same. Some complain about states automatically sending absentee ballots to all voters, but only a few states do this, and they have no history of fraud. (The Post notes, “Democrats are not seeking mail-only elections in most states, in part because many of their voters, especially people of color and younger Americans, have historically been less likely to vote by mail.”) When Trump or his surrogates make these phony claims, it is critical to cut them off and correct the record — just as reporters should do with phony claims about the covid-19 pandemic. Social media outlets have an obligation to mark tweets and posts that spread untrue voting propaganda as “false.”
The Post reports that Trump’s attacks are undermining his own party: “President Trump’s unfounded attacks on mail balloting are discouraging his own supporters from embracing the practice, according to polls and Republican leaders across the country, prompting growing alarm that one of the central strategies of his campaign is threatening GOP prospects in November.”
Normally, one would think that this would deter the president from making false claims. It seems, however, that he does not care whether Republicans lose; instead, he cares about constructing a narrative in which he can undermine the results and claim to have had the election stolen. It is evidence he is increasingly concerned about losing.
All elected officials, including state election officials, have an obligation to defend the systems they are operating. They would be advised to undertake a massive information campaign, as should legitimate news outlets, with a fairly simple message: Voting by mail has been in existence since the Civil War and has been used exclusively in some states and as a non-excuse option in others. The evidence of fraud is virtually nonexistent, and when it has occurred, it has been easy to detect (as was the case with Republicans’ fraud in the North Carolina’s 9th Congressional District in 2018).
These are facts. Trump’s refusal to believe them is evidence of his bad faith, not of legitimate concerns with voting. Attorney General William P. Barr’s “common sense” objection to mail-in voting is neither common nor makes any sense. It is time to defend voting by mail — well before the election.