Read the laughable legal memo behind the claim that Trump can declare a national voting emergency

Peter Ticktin, the Florida-based lawyer leading an effort to have President Donald Trump issue an executive order declaring a national emergency to enable a federal takeover of the upcoming midterm elections, shared his reasoning with Democracy Docket Thursday.

It was quickly torn to pieces by a leading expert on the president’s emergency powers. 

SCROLL DOWN TO READ THE FULL MEMO

Shortly after the Washington Post reported that the White House was taking Ticktin’s plan seriously, legal experts responded with ridicule, noting how blatantly unconstitutional it would be. 

But Ticktin’s reasoning appears more flawed still, relying on economic sanctions law that conveys no authority whatsoever to block mail-in ballots or seize voting machines. 

In response to a written inquiry by Democracy Docket, Ticktin provided a memo that explains why, in his view, the president has the constitutional authority to declare an emergency and seize control of elections. He declined to provide a copy of the draft order, which reportedly relies on the specter of an unsubstantiated threat of electoral interference from China. 

Ticktin’s memo may be what Trump was referencing when he wrote on Truth Social earlier this month: “I have searched the depths of Legal Arguments not yet articulated or vetted on this subject, and will be presenting an irrefutable one in the very near future.”

In the memo, Ticktin wrote:

“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).”

There are “four immediately obvious problems” with this, Liza Goitein, a senior director of the Brennan Center for Justice’s Liberty and National Security Program, and a leading expert on the scope of the president’s emergency powers, told Democracy Docket.

“For starters, there has to actually be an unusual and extraordinary foreign threat,” Goitein wrote in an email. “A bald assertion of foreign interference with the 2020 election doesn’t qualify.”

The NEA is the law Congress enacted in the wake of Watergate to codify and limit the president’s emergency powers. Notably, the NEA requires the president to specify what emergency statute he is invoking when declaring an emergency. Those specific statutes then govern what emergency powers the president holds. 

“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,” Ticktin added. “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,” Ticktin wrote, citing the statute and case law. “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.” 

What Ticktin writes there is true, and he goes on to cite Youngstown Sheet & Tube Co v. Sawyer, a famous case where “the 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.”

But then Ticktin concludes: “[T]he President may utilize emergency powers to address foreign interference in elections, provided the requirements of the NEA and IEfEPA are satisfied, and the actions taken fall within the scope of statutory authority.” 

But the IEEPA doesn’t authorize the president to do anything, at all, related to the conduct of elections, which are run by the states with Congressional oversight as established by the Constitution’s Elections Clause. 

The IEEPA is mostly focused on economic sanctions — it is what allows the president to issue a temporary embargo on a nation harboring terrorists, forbid banks from working with international drug smugglers, or freeze a Russian oligarch’s security accounts in the U.S. 

The IEEPA is also the law Trump used to justify his worldwide tariffs, until the Supreme Court struck that down last week, with Chief Justice John Roberts writing for the majority that the president lacked the peacetime authority to issue the duties during peacetime. 

When the president properly declares a national emergency under the IEPPA, he is then authorized to “investigate, regulate, or prohibit: any transactions in foreign exchange; transfers of credit or payments between, by, through, or to any banking institution, to the extent that such transfers or payments involve any interest of any foreign country or a national thereof; [and] the importing or exporting of currency or securities, by any person, or with respect to any property, subject to the jurisdiction of the United States.”

As Goitein noted, nothing in that would allow for the seizure of voting machines owned and operated by state or local election authorities. 

“The authorities provided by IEEPA extend only to property in which foreign countries or nationals have an actual property interest,” Goitein said. “Foreign persons have no property interest in voting machines owned by the states or in Americans’ mail-in ballots.”

Moreover, the IEEPA does allow the president to “confiscate” property… but only “when the United States is engaged in armed hostilities or has been attacked by a foreign country or foreign nationals.” And that property must belong to the foreign aggressors — voting machines assuredly would not. 

The IEEPA also explicitly excludes mailed items — like mail ballots — from the president’s powers.

“The authority granted to the President by this section does not include the authority to regulate or prohibit, directly or indirectly… any postal, telegraphic, telephonic, or other personal communication, which does not involve a transfer of anything of value,” it reads.

Finally, as Goitein noted, this law is simply inappropriate. 

“Nothing in IEEPA displaces or overrides federal laws prohibiting interference with elections,” she wrote. “Any attempt by this administration to seize or ban mail-in ballots or voting machines during an election would clearly constitute such interference.”

Ticktin is a longtime friend of Trump from his school days and an advocate for Tina Peters, the election denying former Colorado clerk currently imprisoned for her role in a voting machine breach.

Read the full memo: 

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.