Peter Ticktin, a Florida-based lawyer, has advanced a proposal for President Donald Trump to issue an executive order to declare a national emergency, aiming to facilitate a federal takeover of upcoming midterm elections. Ticktin shared his rationale with Democracy Docket.
Ticktin's Argument for Federal Election Takeover
Ticktin's memo asserts that the President may invoke emergency powers in response to an election emergency involving foreign interference, citing the National Emergencies Act (NEA) and the International Emergency Economic Powers Act (IEEPA). He notes that the NEA authorizes the President to declare a national emergency for extraordinary situations, requiring transmission to Congress and publication in the Federal Register, while also specifying the statutory provisions for exercising emergency powers.
The memo further states that the IEEPA grants authority to address "unusual and extraordinary threats" originating outside the U.S. that affect national security, foreign policy, or the economy, including the ability to regulate or prohibit transactions involving foreign property. Ticktin referenced Executive Order 13848, which declared a national emergency concerning foreign interference in U.S. elections under the IEEPA and NEA. He also cited Youngstown Sheet & Tube Co. v. Sawyer, which established that the President requires statutory authorization for emergency powers.
Ticktin concluded that the President could use these powers for foreign election interference if NEA and IEEPA requirements are met and actions fall within statutory scope.
Legal Expert Refutation
Liza Goitein, a senior director of the Brennan Center for Justice's Liberty and National Security Program and an expert on presidential emergency powers, identified several critical issues with Ticktin's argument.
- Absence of Threat: Goitein stated that there must be an actual "unusual and extraordinary foreign threat," and a mere assertion of foreign interference does not qualify.
- Scope of IEEPA: The IEEPA primarily focuses on economic sanctions and does not grant authority over election conduct, which is managed by states with Congressional oversight.
- Property Interests: IEEPA's authorities extend only to property in which foreign countries or nationals have a direct property interest. Voting machines owned by states or American mail-in ballots do not fall under this category.
- Confiscation Limits: While IEEPA allows property confiscation, it is limited to situations of armed hostilities or attacks by foreign entities, and applies only to property belonging to foreign aggressors.
- Exclusion of Communications: The IEEPA explicitly excludes the regulation or prohibition of postal communications, such as mail ballots, that do not involve a transfer of value.
- Non-Displacement of Laws: Goitein emphasized that IEEPA does not override federal laws against election interference, and any attempt by an administration to seize or ban ballots or machines during an election would constitute such interference.
Background Information
The Washington Post previously reported that the White House was considering Ticktin's plan. Ticktin is described as a long-time friend of Donald Trump. Trump reportedly referenced searching "the depths of Legal Arguments not yet articulated or vetted on this subject" on Truth Social, which may have been related to Ticktin's memo.
The Supreme Court recently struck down a use of the IEEPA by the former president related to worldwide tariffs, with the majority opinion noting a lack of peacetime authority for the duties.