About the author: Kimberly Wehle is a professor of law at the University of Baltimore. She is the author of the book How to Read the Constitution—And Why.
As violent and tumultuous as the postelection period has been, imagining how much worse things could be is unfortunately all too easy. What if Mike Pence had gone along with Donald Trump’s gambit to thwart Congress’s counting of electors? What if both chambers of Congress were held by the president’s own party, and willing to overthrow the vote? No statute exists to prevent this, because pre-Trump, every outgoing president played by the rules. America can no longer bank on that sort of behavior. The newly minted Congress must pass legislation to deter similar—and potentially bloodier—constitutional showdowns in the future.
Trump and his enablers have disrupted the normative flow of virtually every stage of this election. Congress should accordingly revisit four particular pieces of legislation right away, as they all contain lapses that, taken together, made last week’s heartbreaking violence and toxicity possible: the statute establishing the date of the presidential election, the Electoral Count Act, the Presidential Transition Act, and—for terrifying reasons that have thankfully been, so far, only theoretical—the Insurrection Act.
Congress controls the date of the presidential election, which has been legislatively calendared for November since 1845. Because voters technically choose a slate of electors versus an individual presidential candidate, the current law states that “the electors of President and Vice President shall be appointed, in each State, on the Tuesday next after the first Monday in November.” Meanwhile, the Twentieth Amendment—which was ratified in 1933—provides that “the terms of the President and the Vice President shall end at noon on the 20th day of January, and the terms of Senators and Representatives at noon on the 3d day of January … and the terms of their successors shall then begin.” For this cycle, the November 3 date resulting from the statue left an 11-week “lame duck” period before the next president’s inauguration. Congress should shrink that period by moving the election closer to the inauguration date, thereby minimizing the opportunity for shenanigans and lasting damage by a disgruntled outgoing president.
Next, the possibility for any interference in the results of each state’s election must be minimized. Congress passed the arcane Electoral Count Act in 1887, after the 1876 presidential contest between Samuel Tilden and Rutherford B. Hayes produced dueling slates of electors from a number of states. The statute sets forth the process for counting Electoral College votes in Congress on January 6, a day that was bound for controversy this year due to multiple Republican members’ pledge to contest Joe Biden’s win in certain states.
If only one or two pieces had been in different positions on the chessboard these past two months—had Biden managed only a razor-thin margin of victory, for example, or had both houses of Congress been under Republican control—American democracy could have met its end. The act allows a single senator and House member to object to a state’s certification on any grounds. Moreover, as the election-law expert Richard Hasen argued in The Atlantic, if vote counts in crucial swing states had been especially close, Republican-controlled state legislatures might have felt more emboldened to employ a part of the statute that allows lawmakers to choose an alternative slate of electors if the election has “failed.” This would have meant canceling out the popular vote and handing the choice of president to the state’s party bosses. Scores of congressional Republicans showed themselves willing to thwart the will of the voters to hold on to power through procedural maneuverings. Without changes in the law, they could do just that. Congress should amend the Electoral Count Act to specify much higher thresholds for triggering these contingencies, such as compelling factual proof of fraud.
Once the outcome of the election is certain—which should be well before the certification on January 6—the transition must begin, without any political interference. That’s not what happened this round; instead, the administrator of the General Services Administration, Emily Murphy, insouciantly ignored her obligation under the Presidential Transition Act to release congressionally authorized federal funding and other support, such as office space and security clearances, that’s vital for a smooth transition from one administration to another. The statute arbitrarily empowers the GSA administrator to ascertain the “apparent” successful presidential candidate as a precondition to triggering transition resources. The law contains no definition or criteria for ascertaining the “apparent successful candidate,” which enabled Murphy to operate under the pretense that Trump’s bald rigged-election claims were sufficiently legitimate to keep the Biden transition team in limbo indefinitely.
Given the stakes, Congress needs to take that nominal power away from an unelected bureaucrat, and instead impose neutral, self-executing terms for unlocking transition dollars and access to information crucial to the transition effort.
The final—and exceptionally disturbing—legislative weakness lies in the statute that authorizes presidents to use troops domestically against civilians.
After the videotaped killing of George Floyd by a white police officer last summer, Trump threatened to “mobilize all available federal resources, civilian and military, to stop the rioting and looting” that followed widespread protests. Although the Posse Comitatus Act of 1878 generally limits the federal government’s power to use the military to enforce civilian law, Trump’s statement implicated an exception set forth in a different law. The Insurrection Act is an amalgamation of statutes dating back to 1792 that authorizes the president’s use of the armed forces to assist a state in a crisis, either at that state’s request, as happened in Los Angeles in 1992 following the beating of Rodney King, or unilaterally. The act also allows the president to call up troops when “any insurrection, domestic violence, unlawful combination, or conspiracy … hinders the execution of the laws of [a] State, and of the United States,” in a way that deprives “any part or class of its people” of their constitutional rights.
This obviously creates a possibility for enormous violence against American citizens. Military leaders appear to have been worried about Trump going down this path. In a rare letter published on January 3 in The Washington Post, all 10 living former secretaries of defense warned that “efforts to involve the U.S. armed forces in resolving election disputes would take us into dangerous, unlawful and unconstitutional territory,” and chided “civilian and military officials who direct and carry out such measures” that they would be accountable under criminal laws “for the grave consequences of their actions on our republic.”
The Insurrection Act contains only one clear prerequisite to calling out the armed forces, and it is a flimsy one: The president must first issue a proclamation ordering “the insurgents to disperse and retire peaceably to their abodes within a limited time.” Congress must amend the Insurrection Act to impose strict triggering criteria that can prevent its abuse. Under the original statute, the president had to secure approval from a federal judge, but that requirement was dropped when the statute was permanently enacted in 1795.
The past week was catastrophic, and the week ahead remains dangerous. If America makes it through this epic stress test, the next Congress must set aside the brutal partisanship that characterizes modern politics and establish some legislative protections against demagoguery. Or next time, we may not have that chance.