From Lawfare: The Military and Elections, Part I: The Legal Wall

What are the president's constitutional powers regarding elections? 

What are the limits?  

- Click here for the article.

Just this year, President Trump said he regrets that he did not order the National Guard to seize voting machines after the 2020 elections. Steve Bannon urged Trump to “call up the 82nd and 101st Airborne” in 2026 to “get around every poll” and make sure that only citizens are voting. Secretary of Defense Pete Hegseth, when asked whether he would refuse an order to deploy troops to polling places during the midterms, avoided answering—and falsely claimed that troops were deployed to polling places in 15 states under Joe Biden.

Critics are alarmed. They see these statements as harbingers of attempts to interfere with the midterm elections in November. “He’ll just claim that there’s some problem with an election—and then he’s got troops on the ground that can take control,” said Illinois Gov. J.B. Pritzker. “Let’s be clear,” said Sen. Tammy Duckworth (D-Ill.), “we know Trump is laying the groundwork and planning to send troops to polling places to intimidate Americans and interfere in our elections.”

Whether these fears are justified is not just a question of politics—it’s also a question of law. Does the president actually have the legal authority to use the military in connection with the elections?

Yes, there are limitations on using the military for elections, both because there are specific laws protecting elections from military interference and because there are broader (but still uncomfortably vague) legal restrictions on domestic deployments of the military. But the laws have exceptions, and the president’s Article II powers can serve as the basis for claims of inherent authority. That means that evaluating the threat of military interference in elections requires analyzing an intricate patchwork of statutes and constitutional powers—whose interaction is mostly untested.

This article describes the relevant limitations on the president’s use of the military for elections. In a companion article, we discuss the authorities the president may cite in support of his efforts to deploy troops notwithstanding those limitations. The pull and push between these restrictions and the powers the administration may insist it has to overcome them is where the uncertainty lies.

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- Click here for a summary from ChatGPT.

Main Argument

The authors make five central points:

- Federal law strongly disfavors military involvement in elections.
- Several statutes specifically prohibit troops from interfering with voting or election administration.
-  The Constitution does not expressly forbid domestic military deployments.
-  Presidents possess significant constitutional and statutory authority over the armed forces.
-  Because these authorities have rarely been tested in court during election-related disputes, legal uncertainty remains.