On February 26, the Washington Post reported that allies of President Trump are urging him to declare a national emergency so that he can issue rules and regulations concerning voting in the 2026 election. The alleged emergency arises from the threat of foreign interference in our electoral process.
That threat is based on now fully debunked reports that China manipulated registration and voting in 2020. The National Intelligence Council explained that there were “no indications that any foreign actor attempted to alter any technical aspect of the voting process in the 2020 US elections, including voter registration, casting ballots, vote tabulation, or reporting results.”
With respect to China, the NIC concluded that it “ did not deploy interference efforts and considered but did not deploy influence efforts intended to change the outcome of the US Presidential election.” Moreover, the report made it clear “that it would be difficult for a foreign actor to manipulate election processes at scale without detection by intelligence collection on the actors themselves, through physical and cyber security monitoring around voting systems across the country, or in post-election audits.”
The Post says that those conclusions do not seem to be dissuading the president and his supporters from their plan for an executive order to “mandate voter ID and ban mail ballots in November’s midterm elections.”
The declaration of a national emergency of the kind Trump might invoke would be unprecedented and extraordinarily disruptive. But it is just the latest expression of a long-standing shift of power from Congress to the president.
It is time for Congress to stand up for democracy by reversing that trend. To start, it should undertake a comprehensive review of all legislation that now grants the president emergency powers of the kind that the president might use to take control of the November election.
It should repeal those grants except where it is demonstrably necessary for the president to retain the ability to declare emergencies and to act on the basis of such a declaration. And the bar should be set very high for identifying those instances.
Writing in 2023, University of Virginia Law professor Saikrishna Prakash explained that “the Constitution… does not grant the president much in the way of emergency authority. The executive power,” he adds, “was not understood to authorize the presidency’s predecessors to act contrary to existing law or to take whatever measures they deemed necessary to handle some perceived crisis.“
From time to time, Congress has stepped in to fill the void, authorizing presidents to respond to emergencies when they arise.
As Prakash observes, “most emergency authority rests on statutes passed by Congress. There are two sorts of statutes: ex ante delegations, passed before a crisis, and ex post delegations, passed in the wake of an emergency… (e.g., the Patriot Act).”
“The modern emergency regime is regulated, in the lightest of ways,” he notes, “by the 1976 National Emergencies Act. Among other things, the act requires publication of emergencies in the Federal Register and certain reporting by the president. The rules limit the duration of an emergency to one year, but they also contemplate the president extending the declaration for another year. That is one reason why some emergency declarations never terminate.”
The open-ended quality of those declarations is one of the reasons Congress needs to step in. Emergency declarations, like loaded guns, should not be left lying around waiting for a power-hungry president to use one to advance an agenda that could not be advanced in any other way.
The Brennan Center for Justice has identified “150 statutory powers that may become available to the president upon declaration of a national emergency.” At the time, Elizabeth Gotein, a Brennan Center staff member, told NPR that “emergency powers are a little bit scary because the entire purpose of them is to give the president a degree of flexibility and legal leeway that Congress does not think would be appropriate during non-emergency times…. “
“What Congress does,” Gotein explained, “is grant the president this really extraordinary degree of power or discretion or flexibility in order to temporarily address the emergency until it passes or until Congress has time to enact legislation if the crisis becomes actually more of a new normal.”
This works if Congress is judicious in doing that. Alas, it has not been.
It has been eager to delegate its authority and, in so doing, to shift responsibility for guiding the country in times of crisis to the executive. The scope of the emergency powers the president can exercise is vast and not well understood by most lawmakers or citizens.
Gotein offered many chilling examples of what a president can do with those powers. To mention just one example, she points out that “there is a provision from the Communications Act [of 1934, amended in 1942] that allows the president to take over or shut down radio or wire communications facilities if he declares a national emergency or a threat of war. That provision was last invoked during World War II, when wire communications meant telephone calls or telegrams.”
“Today,” she notes, “it could arguably be interpreted to allow the president to exert control over U.S.-based Internet traffic.
During his service in the White House, President Trump has shown an unusual proclivity for extending executive authority and for declaring emergencies to do so. The New York Times describes his usual way of doing this as follows:
“The United States is a nation in crisis, President Trump says. The problems are both profound and urgent. He knows how to fix them, but his ideas are hard to implement: They require new legislation or lumbering legal petitions. But there’s a way around that. The law often gives the president new and broad powers in a state of emergency.”
Last June, NPR said that “Trump invoked emergency powers more times in his first 100 days than any other modern president has in that time.” Nothing has changed since then.
With respect to the 2026 midterms, Peter Ticktin, one of the people pushing for a declaration of emergency, argues, “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).”
Recalling the danger that dormant emergency powers pose for democracy, he argues that a precedent was set by “Executive Order 13848, issued under the IEEPA and NEA (during Trump’s first term), (which) 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.”
In Gotein’s view, that is all nonsense. For example, “Nothing in IEEPA,” she suggests, “displaces or overrides federal laws prohibiting interference with elections. Any attempt by this administration to seize or ban mail-in ballots or voting machines during an election would clearly constitute such interference.”
If she is right, that may make a good argument in court. But it may not reach the Supreme Court in time to prevent the president from dictating the terms on which elections are conducted six months from now.
Meantime, Congress should do its work and help preserve democracy by restricting the occasions for the kind of mischief that we might see this year.
Austin Sarat is the William Nelson Cromwell professor of jurisprudence and political science at Amherst College.
