Could Trump Use the Virus to Stay in Power?

Since the moment he took office, Democrats—and even some Republicans—have worried that President Donald Trump just might be the kind of leader who tries to cling to power past November’s elections. Those concerns have sharply accelerated with the coronavirus pandemic, which raises the possibility that Americans might not be able to, or might not consider it safe to, vote in November—and, more darkly, that Trump would use that fear as an excuse to stay in office.

Anxious warnings about the elections are rife on Twitter, and the question has arisen in the Boston Globe, Politico and elsewhere. “[C]an one rule out an attempt to cancel or postpone the November election, justified on the grounds of preserving public safety?” asked Stephen Walt in Foreign Policy. In 2001, the president’s lawyer, Rudy Giuliani, reportedly sought to extend his term as mayor of New York, postponing the November election, after the September 11, 2001, attacks.

As most of those articles note, the legal answer is that he can’t: The Constitution empowers Congress, not the president, to select Election Day, so only an act of Congress could change it.

But Trump hasn’t exactly exhibited a profound understanding of the limits of his constitutional authority, and in recent days he’s made noises about expanding his power in new ways, on Monday declaring “total” authority to make governors reopen their states for business, or, on Wednesday, insisting he had authority to forcibly adjourn Congress.

So it seems worth at least considering the possibility that Trump—especially if the polls turned against him—would use our current public health emergency to cancel the 2020 election. What would really happen if he did, or tried to?

There are many unknowns in such a scenario, but the bottom line is that even if he does try to cancel the election, Trump can't be guaranteed that he stays in the White House. He would need either a great deal of luck or a coup to remain president. And the office might easily elude the likely Democratic nominee, former Vice President Joe Biden, too.

Here’s why.

The main thing to understand is that Trump and Vice President Mike Pence could not simply continue to serve beyond Inauguration Day. The 20th Amendment clearly states that “[t]he terms of the President and Vice President shall end at noon on the 20th day of January.” When the clock strikes 12 that day, Donald Trump and Mike Pence’s terms are over and neither has any more claim to the presidency than, say, Barack Obama or George W. Bush.

If that happens, the door opens to a wide array of scenarios, many of which are well within the complex rules set out in the Constitution for choosing presidents. Many of these rules have never come into play in American history, so the results might surprise Americans: There’s a slim chance Trump could emerge as the president, but we could also see a President Nancy Pelosi, President Elizabeth Warren, President Patrick Leahy, President Mitt Romney, or—who knows?—President Elaine Chao.

The bottom line is that if the 2020 presidential election is canceled and Trump wanted to stay in office past Jan. 20, he’d need to find some other way to get “elected.” Here are a few ways, some more likely than others, for how he might try to make that happen—or how opponents might try to block him.

Some states defy the president and hold elections anyway.

If the president declared the elections “canceled” without the support of Congress, some individual states could recognize that he lacks that authority and simply hold elections as scheduled. Elections are administered at the state level, anyway, so this wouldn’t require any special planning; it’s just business as usual for the states that hold them. It is difficult to see a court blocking such elections, or the military preventing them.

Which states would do so, however, is difficult to predict. Few Republican officials seem likely to defy the president, and which state official is crucial to that decision—the governor, the secretary of state or possibly even the attorney general—varies among the states. Democratic state officials could try to go this route, but it seems unlikely that enough states would do so that they could reach a total of 270 electors, the number ordinarily required to select a president.

Bottom line: Mostly Democratic states defy the president, but they do not produce enough electors to decide the election. Stalemate (for the moment—read on).

Some states use legislatures to select electors.

The Constitution requires electors to select the president, but it doesn’t mandate how states choose them—it leaves that decision up to state legislators. Since the middle of the 19th century, every state has chosen to appoint its electors by popular vote, but in the absence of a popular election the Legislature could reclaim the power to choose electors for itself, and it would be perfectly constitutional.

On the face of it, this could result in a resounding win for the president: The states in which Republicans currently control both chambers in the legislatures represent 300 electoral votes, while Democrats have solid control in states choosing 223 electors.

State laws, however, generally do not allow the legislatures to select electors by themselves, so to go this route the states would need to either break their own laws or amend them, plus avoid a gubernatorial veto. So if one excludes states with solid one party control of the legislature but a governor of the other party, we could wind up with 214 Republican electors and 195 Democratic ones. Democrats, however, have veto-proof majorities in the Maryland, Massachusetts and Vermont legislatures; if one assumes that they all passed laws allowing themselves to choose electors, overrode their Republican governors’ vetoes, and selected Democratic electors, the totals flip to 219 Democrats and 214 Republicans. In that version of state-vs.-state partisan hardball, Trump loses, barely. If, however, the nonpartisan legislature in Nebraska appoints Republican electors, we would have a 219-219 tie.

Although none of these numbers approaches the usual requirement of 270 electoral votes, Article II, section 1, clause 3 requires only “a Majority of the whole Number of Electors appointed.” So, if some states are deadlocked and unable to choose electors, a majority of those chosen might suffice. On the other hand, any single state’s failure to appoint electors would violate Article II, section 1, clause 2—which requires each state to appoint electors—casting a cloud over the whole process.

Bottom line: Trump probably loses.

The House of Representatives chooses the president.

If the Electoral College has not chosen a president when its votes are counted on January 6, Article II, section 1, clause 3, and the 12th Amendment require the House of Representatives to choose a president from those receiving the most votes from electors. But here’s the rub—if the November elections were canceled, would we even have a House of Representatives?

Presumably, we would at least until the beginning of January. Article I, section 2, requires elections for representatives every two years, but—unlike Article II, section 1—it does not prescribe finite terms. Some would argue that representatives who were elected by their constituents in the most recent election, and who played no part in aborting their constituents’ scheduled return to the polls, could not be deprived of legitimacy by the unconstitutional actions of the president.

On the other hand, the 20th Amendment states that “the terms of … Representatives [end] at noon on the 3rd day of January, of the years in which such terms would have ended if this article had not been ratified; and the terms of their successors shall then begin.” One could argue that the availability of successors is an implied condition on terms ending, at least where the incumbents did not themselves prevent the selection of such successors.

But assuming that the current House stayed in place and were to choose the new president, Trump would start with a clear advantage. Article II, section 1, clause 3, and the 12th Amendment require representatives to vote as states, with each state having a single vote. In the current House, although Democrats hold a comfortable majority, Republicans control 26 state delegations to 22 for the Democrats (Michigan and Pennsylvania being evenly divided).

Of course, that could change if elections were held in some states in defiance of the president, if some members were to pass away (from Covid-19 or anything else), or if a few Republicans in closely divided delegations defect in protest over the president’s canceling the election.

Moreover, although the two most obvious candidates in the House would be Trump and former Vice President Joe Biden, the 12th Amendment allows the House to choose among the top three candidates in the Electoral College; a few electors defecting from their parties to vote for a conservative Democrat or a “Never Trump” Republican (Senator Mitt Romney?) could scramble everyone’s calculations.

Bottom line: Trump probably wins.

The Senate selects the vice president, who becomes president.

If the House cannot assemble a majority of 26 state delegations for one candidate, the 20th Amendment provides that the vice presidential candidate selected by the Senate would become acting president. The Senate could choose only among the top two finishers in the Electoral College, so no attempted compromise candidate would be possible.

The Senate’s continuation without an election would seem to be more assured than that of the House, because 65 senators—33 Democrats, 2 independents who caucus with the Democrats, and 30 Republicans—still have time remaining on their terms.

Two problems nonetheless arise. First, Article I, section 3, and the 17th Amendment both provide for a Senate composed of two senators representing each state; without an election in November, 33 states would have only one senator and Georgia would have none at all. Second, Article I, section 3, and the 12th Amendment require a quorum of two-thirds of the senators to elect a vice president; the holdover senators’ number falls two short. If a few states with expiring Senate terms held elections, the Senate theoretically could achieve quorum.

Both these problems could be addressed by governors appointing senators to fill the resulting vacancies. If current governors appointed members of their own parties to join the 65 holdover senators, the result likely would be a 51-49 Democratic Senate. (Republicans would take Democratic seats in Alabama, Massachusetts and New Hampshire; Democrats would replace Republicans in Colorado, Kansas, Kentucky, Louisiana, Maine, Montana and North Carolina.)

Here again, loss of a single governor or senator could shift the outcome. Even if 100 senators are elected or appointed, the party expecting to lose could declare the process illegitimate and decline to help the majority achieve the two-thirds quorum.

Bottom line: Democrats take a slim majority and would most likely elect the Democratic vice presidential nominee.

The speaker of the House becomes president.

If neither the House nor the Senate could produce a majority to resolve an impasse in the Electoral College, the 20th Amendment calls for Congress to designate by statute who would then serve as acting president. That statute is section 19 of Title 3 of the U.S. Code, and it designates the speaker of the House as next in line to the acting presidency. The speaker would cease to be president if either the House settled on a president or the Senate settled on a vice president.

Here again, it would be crucial whether the House would still exist in the absence of November elections in much of the country. If it did not, the president pro tem of the Senate would become acting president, assuming again that the Senate would continue to exist without elections this fall. If Senate control passes to the Democrats—either because of their majority among holdover senators or because governors appoint replacements for senators whose terms expire, tradition dictates that they elect the most senior member of the majority party, Vermont Senator Patrick Leahy, as president protTem.

Bottom line: Either House Speaker Nancy Pelosi or the Senate president pro tem, probably Patrick Leahy, becomes president.

The Secretary of State, or another Cabinet member, becomes president.

If the Electoral College deadlocks and neither chamber of Congress is functioning sufficiently to break that deadlock or even elect its own presiding officer, section 19 passes the acting presidency to confirmed Cabinet members, beginning with Secretary of State Mike Pompeo.

Section 19, however, also disqualifies any Cabinet members who are currently under impeachment. The Democratic-led House of Representatives is unlikely to regard a Pompeo presidency as acceptable, particularly given his roles in the cutoff of aid to Ukraine and seeking to obstruct key witnesses’ testimony during the House’s inquiry into that matter, and they could strike him from the line of succession by impeaching him before going out of session on Jan. 3. The impeachment would suffice to bar him from the presidency without any action by the Senate.

If Pompeo could not serve, section 19 next would pass the acting presidency to Treasury Secretary Steven Mnuchin. Mnuchin is one of the few top Trump Administration officials to have a functioning relationship with congressional Democrats, although his implementation of the coronavirus relief legislation is calling that into question.

The House could go further and conclude that any Cabinet member complicit in the unconstitutional cancellation of the November election merited impeachment. If so, the House could effectively select a president from among the sitting Cabinet members whom the Senate has confirmed. Democrats enjoy debating which Trump Cabinet member they think is worst; this could force them to decide which one they find most tolerable. Section 19 is silent on what would happen if the entire Cabinet were barred through impeachment or lack of Senate confirmation.

Bottom line: The Trump Cabinet member least objectionable to Democrats becomes president.

Notably, in only one of these six scenarios does Trump retain the presidency, and that scenario relies on every member of the House surviving the pandemic and individual members of Congress adhering strictly to their party line during what would be an extraordinary constitutional crisis.

So if Trump wants to remain president, there’s pretty much no way canceling the 2020 presidential election helps him do that, at least not constitutionally. If he wants to blow up the U.S. Constitution … well, that’s a whole different scenario.