In his seemingly endless efforts to thwart a robust democratic participation in November’s election, on Thursday night President Trump told Sean Hannity that he planned to send law enforcement to polling places on election day. He told the Fox News host, “We’re going to have sheriffs, and we’re going to have law enforcement. And we’re going to have hopefully U.S. attorneys, and we’re going to have everybody and attorney generals.”
Rest assured, he can’t do this.
As usual, Donald Trump was not entirely clear what he was talking about here. But, based on what he said, it appears he might be talking about sending federal troops or law enforcement of some sort to election sites on November 3rd and/or doing the same with state law enforcement. Either way, he runs up against significant legal barriers.
For federal law enforcement, there’s a very clear federal law that bars the President (or any other person in the United States government) from sending “any troops or armed men” to any polling place in the country. Thus, this law prohibits, for instance, the troops that were sent to Portland (or any other military troops) from being deployed on election day at the polls. It also prohibits the President from sending non-military law enforcement, such as United States marshals, FBI agents, or U.S. attorneys to election sites if they are armed, which marshals and FBI agents usually are.
The law provides for one exception — when “necessary to repel armed enemies of the United States.” Though President Trump has repeatedly repeated complete lies about the threat of election fraud, he has not (yet) claimed that armed enemies of the United States are threatening November’s election.
What’s more is that this is a criminal law, so anyone violating it would be subject to up to five years in prison and would also be disqualified from holding any office under the United States.
For state law enforcement, such as the sheriffs and attorney generals that Trump mentioned last night, there’s no federal statute banning the practice, but there is a very clear command from the Supreme Court that this isn’t allowed. In 1997, the Court ruled that Congress cannot force local law enforcement officials to implement federal law, in that case, gun background checks as part of the Brady Act. The Court’s opinion, written by conservative Justice Antonin Scalia, was clear in its conclusion: “The Federal Government may [not] command the States’ officers, or those of their political subdivisions, to administer or enforce a federal regulatory program.”
The reasoning the Court used was based on the idea that state and local officials work for an entirely different government than the one the President controls. That is, state officials, including law enforcement, don’t work for two governments at once — the state and the United States. Rather, they work for one government alone — state government — and only those in control of the state can dictate their work. Moreover, the Court said that the President can only exercise authority over the federal administrative branch. Over that branch, the President has extensive authority. But, beyond that, the President has almost none.
This case makes the issue of the President using state sheriffs and attorneys general (or any other state law enforcement or state official) a non-starter. Doing so would clearly violate this constitutional principle.
So what’s left for Trump’s idea? Very little. No troops, no armed federal officials, and no state officials of any sort. That leaves him with unarmed civil agents of the federal government standing at polling places. And maybe that’s what he’ll do on Election Day, but that’s a far cry from sending what he said last night about sending law enforcement to polling places.
Of course, there’s always one more possibility — he ignores federal criminal law and the Constitution. Unfortunately, with this president, we’ve seen that happen almost as frequently as we’ve heard him make statements, like the one on Thursday night, that show he has no understanding of either.