Lawfare Daily: The Military, Elections, and the Law

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of military involvement in elections over the course of time. It has never gone away.

It has never been questioned, and so it really reflects a significant value of Congress that has stayed constant. It's the law fair podcast. I'm Benjamin Wittis, editor in chief of law fair, with law fair executive editor Natalie Orpett, and senior editors Molly Roberts and Lauren Voss. So if there was an attack underway and attack occurred in some way, there's an inherent constitutional power to respond to that, and the argument would be, "Okay, yes, there's statutory limitations on specific things, but this is an inherent constitutional power

because I must take action to protect America."

“Today we're talking troops at the polls, can the president deploy them? What can he do with them?”

What kind of mischief can they make, and what laws restrict the president's power to make you show your ID to a guy with a gun? All right, Molly, I want to start with you. Why on earth would we be writing about and talking about the rather esoteric question of when and under what circumstances a president can and cannot use the military in connection with US federal elections? It seems like a wholly theoretical kind of question of the sort that law fair doesn't usually engage.

Right, it's not just that it's esoteric, I think it's also that it just seems kind of like a crazy thing that this could happen.

That's not just something that we contemplate, something that we imagine easily. Right, we usually don't just make up crazed scenarios and then write about them as though they're likely to happen.

“Is there some reason we're treating this as the sort of thing that you would write detailed legal articles about?”

I hope there's some reason I'll see if I can convince you. So one reason I think is that the administration members of the administration and people adjacent to allies of the administration have been talking about using troops in elections. So President Trump has said that he regrets not ordering the national guard to seize voting machines after 2020. And he has talked about calling up various divisions of the airborne. I think Pete Hegsef has not been super forthcoming when asked because people are worried about this.

Whether he would refuse in order to deploy troops. So all these things are happening. Democrats in Congress are a little worried about it too. They've tried to propose bills. Republicans have blocked the bills. We're not the only ones thinking about this. And what's really important as well is that this isn't just a matter of rhetoric.

There's concrete stuff that's happening that suggests that the administration might be interested in exploring these authorities. Namely, there've been a lot of domestic deployments in the National Guard is in the American cities. There's litigation going on involving the extent of the powers the President has to do that.

“So I think you combine that with indications that this administration is interested in messing about with elections in other ways, right?”

So we know about the investigations in Fulton County, Maricopa, where aware of the declassifying of various intelligence documents to discuss the possibility that the last election was stolen all that kind of stuff. If you put that together with what looks sort of like trial balloons in the form of these deployments, I think there is real reason to be concerned. All right, you had me at the President said he regrets not doing it last time.

And there are many ways to use federal troops in connection with elections.

“Federal troops can keep people away from the ballots.”

Federal troops could theoretically count ballots. They could give people rides to the polls. They could, you know, shoot people who want allowed to be there. When you say I regret not having called out troops before, what do we know about what to the extent this is being actively thought about what the troops would be for?

So the specific common that President Trump made about not ordering the national guard to involve itself after the 2020 elections had to do with seizing voting machines.

And the idea there was that he should declare a national emergency on the pretext of they're having been foreign interference in the election and then go get the voting machines to check that out.

“So that's one possibility, but I don't think that's the only way we should be thinking of this happening. I think that there's a whole range of ways this could play out.”

And some of them seem more innocuous than others. Some of them seem more insidious. I don't think any of them is entirely innocuous. And as we'll hear about in this conversation, I don't think any of them is very few of them are entirely legal. But, you know, one would just be having troops near but not at polling places that sort of the least scary version.

There was some election support from the National Guard during COVID. All of this is a lot easier when a state's governor asks for it, as I'm sure we'll go into.

But, you know, still that couldn't intimidate people discourage them from voting. Then there's troops at polling places, which is like that, but worse. And there's this seizing of equipment and ballots, which I just talked about. And then I guess there's the question of what does any of that achieve? And again, some of it would maybe just be discouraging people. So that the vote didn't really reflect what all the people eligible to vote thought. But another possibility in this goes to the sort of the seizing of equipment and ballots specifically is if machines are damaged say or if the chain of custody is broken on ballots, that could lead to a whole mess of issues involving certification.

It could make it easier to contest you one. There's the possibility that there need to be a new election held in various jurisdictions. So there are a lot of ways that it could play out and there are a lot of downstream effects that could have. All right, let's talk about the law. I thought being a simple minded person who, you know, just read the Constitution and stuff that off your elections, mid-cycle elections were state run of fairs and knowing most states, you know, have county election boards that run the elections locally.

And nowhere in there does anything say anything about federal troops.

“So I want to start with the question, what positive authority does the federal government have to leave aside for a moment any restrictions on that authority to run or get involved in state level elections with federal forces?”

Yeah, so you are not wrong that the Constitution in fact does have an elections clause that that puts states in charge of effectively administering elections. It's actually not as broad in language as you might think. Other part of the Constitution also indicates that Congress can play some very limited role, but you are correct that there is nothing in the Constitution that suggests that the president plays any role whatsoever in elections. So we're not actually looking at positive authority certainly not in the Constitution for the president to do anything with the military for elections or to do anything for elections generally.

But what we are looking at in our pieces is the positive authorities that the president has under the Constitution to do things. And particularly to do things with the military where the effect might be that it has an influence on the elections, but where one might argue that any effect that something might have on the elections is incidental. And effectively that there aren't enough things protecting elections that those can overcome the president's broad authorities elsewhere to use the military.

All right, so help me out because I understand that the president can deploy the military to quel civil unrest or to subject to the limitations of the Pasi Commitatus Act.

And now we have an election in which nobody is you know, scheduled civil unrest right no one's we haven't scheduled a rebellion or an insurrection. We've just scheduled an election.

“What right does the president have to do anything that that would involve putting troops in the way of that?”

The problem is really that the definitions of the president's authorities to use the military are not particularly well defined.

You're correct that the Pasi Commitatus Act puts a limitation on using the military for law enforcement under most circumstances. And if you're in a certain direction act provides an exception to that under certain circumstances, though it does require some sort of as you were indicating some sort of rebellion or unrest that rises to a certain level.

“But again, part of the problem is not only that the authorities the president has with respect to the military are quite broadly worded.”

The practical effect of what this would look like. So if the president chooses to exercise authorities to deploy the military and we've seen this in case law and we see that this happening right now.

The reality is that the troops go out there is a legal challenge to them perhaps and the question that needs to be litigated in the meantime because of the way that jurisprudence in this area has worked out. But tremendous amount of difference to the president in making a determination about whether the standards have been met under whatever relevant statute to employ one of these sort of loopholes or exceptions. And so the troops are there and they remain on the ground and that's in fact what we're seeing in several cities in the United States right now not in connection with elections, but the same legal parameters are at work there.

Yeah, I mean to add to that the deployment in California, originally of the Marines in National Guard and then just a National Guard started in June of last year and then to get to the Supreme Court at a decision on that was December right and so it took that long before the troops were pulled back.

“And so when we look at this you know these different languages they are quite broad it's not just insurrection or rebellion and remember the administration did claim there was a threat of rebellion in Chicago.”

That was one of the claims that was most Chicago and so you know and the languages more broad than rebellion not just an insurrection act right like you have the ability to do it if there's.

In practical to enforce the law, you have these types of things and then we haven't even gotten a title 32 502F in which the federal government is currently arguing allows them to do any such mission as the president or sack deaf determines right and so we're not arguing there's a permissive authority specific to elections. But there are some broad authorities out there that could be that could at least be put on the table and then as we see from the California litigation in in the Chicago litigation and the Portland you know Oregon litigation it can take six months for this to funnel up to the Supreme Court and get a final decision.

All right, so let's figure out let's sketch the parameters of the law here as a preliminary matter what protections are there to keep federal troops out of elections this seems like. Stuff that we would have dealt with in the reconstruction era albeit for all the wrong reasons southern states wanted to keep federal troops out to prevent them from facilitating freedmen voting and eventually they won. How much of our existing regulatory framework for this stuff comes from that. You're actually a couple years off and that most of this actually started during the civil war.

So our first law is from 1865 and this was actually based not off of what was happening in the south but in the border states specifically slave states that were part of the union so Missouri Kentucky Maryland and Delaware. And you had a senator from Kentucky Powell bring forward this bill that went through these examples and said you know this is what we've seen in these places so in Missouri there was you know anyone who was in acting against the US government could not vote. And there was an ordinance that said that but the military was enforcing it you can imagine how they might determine who had acted against the US government in Kentucky they said no disloyal people could vote and the military was enforcing that.

So you you can imagine the types of troubles at this this reach to and they said not prone to abuse at all that one there is a great discussion in the.

“The military committee that was asked to review this law in the Senate where they said well you know the military's not asking whether or not these individuals have rights under Kentucky law but their enemies of the United States so.”

You know it doesn't matter they're under military authority and so in Kentucky you saw this as well where they were you know literally stopping people from being able to vote. They actually. gave orders to strike certain candidates from the books at certain polling locations and then Maryland you actually had physical presence around the polls so you have all these things occurring in these order states.

And these were just direct federal troops intervening in state level election.

But they were in the case forms except for a don't believe Delaware had martial law but there was troop deployments but the other states were literally under martial law because while union states.

“There were a lot of southern sympathizers troops you know support going on there so martial law had actually been declared in those states in the you know the year or two prior.”

I think it's going to be a good news forward a bill and today it's in a couple different provisions one is 18 USC 592 named troops at polls but I will flag for everyone it's not just about troops right so anyone who is an officer of the army or navy because that's all we had at the time right or other person in the civil military or naval service of the United States either orders. That means that all things keep or has under his authority or control troops are armed men at a location where an election is to be held.

Gets find can be imprisoned for up to five years and is also disqualified from holding any office under the United States.

And that's five 92 there's three provisions and so you can kind of see how that's based on the examples I just gave you in those four states. So you can't see three which is the interference one right which is the idea that you cannot prescribe or fix the qualifications of voters. So you can't say no disloyal people can vote for example and you could out force threat or intimidate any qualified voter from exercising their right. And that's the direction within 593 which talks about you know compelling or having effects on election officers right to not receive votes to make different regulations to stop the discharge of your duties those types of things.

What are not seizing voting machines I mean there were no voting machines then but is there anything in that statute that if you were to send troops to seize a voting machine from an election official. That that would meet the statutory elements of that offense.

“Yeah, I mean I would call it interfering in any manner with an election officers discharge of his duties right like there's some pretty vague language in here that I think that would absolutely meet.”

And so I think that these are pretty decent there's also a civil provision that comes from this time period it's now codified as 52 USC 10102 which is that no officer of the Army Navy or Air Force cell prescribed fix. You know any qualifications of voters or any manner interfere with the freedom of an election in a state right so there's that civil provision as well. You're making me feel pretty good here you got it's a you got a criminal statute that basically says you can interfere with voters you can't prevent people who are qualified under state law from voting from voting.

And you can't interfere with the election workers using federal troops right in that catch all of like you just can't have troops or armed men at the election site generally. Now at at is a complicated thing because what if they take one step away but we're going to come to that in a minute I'm so far like I'm feeling pretty good about this. It seems like like you know the the pre reconstruction era the civil war era congress prepared us pretty well for for Donald Trump what am I missing. I'll say one more thing to make you feel good before we start to make you feel bad.

I like feeling good. Sorry to disappoint there's a part two to this. The the other thing to just emphasize is Lauren is correct the this 1865 law is now codified in three different statutes. The other point to make though is that this law has been on the books since 1865 and congress has only made it stronger and more restrictive of military involvement in elections over the course of time.

Yeah I mean I think it's important actually to to trace that through and say there was two exceptions in the law in 1865.

One for you know if it's necessary to repell armed enemies of the United States and then the other one was. Or to keep the peace at the polls and you know you can understand those those exceptions to be quite narrow but that to keep the peace at the polls was removed.

And so now the only exception within this statute is when it's necessary to repell armed enemies of the United States.

“If I can add one thing as well I think something important that we go into in the piece is that it's not just that history shows that congress created protections for elections that history shows that.”

Congress created protections against domestic deployments not entirely but generally but it really really really cared about elections and it wanted the elections specific restrictions to be even more robust than the general restrictions.

And that's what we see with this 1865 law too and then congress kind of bringing it back recodifying it after the reconstruction period is.

They passed the policy comatatas act which is kind of you know the key text when it comes to domestic deployments but then on top of that they do this to suggest we're adding another layer here. Right so the other sort of a stress to what we've been saying is there actually was a brief period during reconstruction where there was some tension between the laws and this is in the broader context I think it's important to say of you know post conflict post civil war.

“How on God's green earth are we going to make this a coherent nation again project of reconstruction. But what happened is that congress passed the reconstruction act which established military zones in former southern states.”

And as part of that and a military officials were given the authority to do large swaths of what we consider civilian law enforcement now and governance tasks. And as part of that and also two of the three enforcement acts that were passed in the early 1870s. They're actually were under those statutes specific provisions instructing the military to do things around elections. That was while the 1865 law that we have been talking about was still on the books and so there are some scholars that point to that tension and say you know maybe we shouldn't understand the 1865 law to be quite as broad as some people might read it I think it's fair to say that that does not stand up as a legal argument in my mind at least.

And it is more reflective of this transitional period between the end of the civil war and the return to civilian control of southern states that had succeeded because there was literally a hand over going on from union troops who were responsible for governance and effectively

“imposing some form of martial law until that transition could happen to civilian control when the southern states rejoined the union after passing the 14th Amendment.”

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And what are the many ways in which despite this visionary fabric of law to keep federal troops out of elections we are at risk of having them in there anyway.

Also laws that affirmatively allow domestic deployments under specific sets of circumstances although maybe not all that specific some of them aren't as well defined as one might wish and could be interpreted by.

“You know as I was saying at the top of this episode this executive seems at least some degree of eager in a way that's fairly permissive and the range of.”

Authorities the president might say go from statutory to constitutional and I guess Natalie and Lauren can probably talk in more detail about all of those.

Yeah so like what can he certainly do let's start with that things that you know like okay you can't station troops at polls but you can do blank. Right so I think the most common one that everyone has been made aware of is the insurrection act which is a very broad statute that allows the president if he follows the correct procedures which is basically declare an emergency and then go take care of it with the military.

“It's very broad and it is not at all clear because it's never been tested how the insurrection act would come into conflict with this election protective statute.”

But we know generally that there's reason to be concerned because courts as I said before really defer to the executive on judgments of when the military is necessary for emergencies particularly if the United States is under some sort of threat from armed forces. I think that that discussion has been out there in the ether and people are sort of familiar with it there was a lot of discussion of you know the break last moment being if Trump were to invoke the insurrection act that's the real thing to be scared about.

The things that we actually wanted to accomplish with this article was to make clear that the insurrection act is in fact not the only mechanism by which the president could deploy troops in connection with elections.

“And I think really probably not even the best candidate including because it's in the public consciousness as a thing that would be really scary and dramatic.”

We're sort of low hanging fruit way of doing it perhaps is to utilize these authorities that the president has under statute which are relating to the national guard.

And we touched on this a little bit earlier, but the fact is that we've seen some of the sackening we've been following especially a lot there we have been following domestic deployments of the national guard in there somewhat federalized but asterisk I'll come back to that in a second capacity to American cities and that is a way to get to get boots on the ground of the military. And those authorities which we can go into in much more depth leave a lot of reason to think that they could be invoked we've already seen the president invoking them for a variety of purposes.

And there are two different ones I'm going to let Lauren speak to them in greater depth because she is the real expert here, but there are two different sort of general categories one is title 32 one is title 10. These are two different statuses that national guard are under so one thing that is a bit of a pet issue for me is I think oftentimes we don't think of the national guard as the military in the sense of being as concerned about whether the national guard is. You know, roaming the streets as we would be if it were, you know, Marines or the army or they are force I'm not quite sure why that is because they're demonstrably the military, but it may be in part because the national guard.

Our state militias and they are not federal troops unless and until the president uses one of these two sets of authorities. So title 32 is an authority where.

The national guard remain under the command and control of their state governor, which is the default for a national guard, but they are paid by and to some degree directed as to mission by the federal government. This presents a lot of complications actually, it sounds a little more innocuous because the governor retains command and control technically, but Lauren can explain in more detail why this is actually really tricky authority.

Yeah, so let's run through some of these for second starting with the statutory ones interaction act just because that's everyone's favorite one to talk about.

One of the reasons we think it's important to think about the interaction act and how that interacts with 592 the so-called troops at polls statue is because OLC wrote a one and a half page memo back in 1968 saying they've looked at 592 they don't think it applies to the president and you could use the interaction act to have troops at polling locations in specific circumstances. That opinion doesn't really give any legal analysis page and a half, but it basically says, you know, we don't think it meant to apply to the president himself.

We did our homework the actual introducer of the bill of 592 back in in 1864 when the bill was introduced gave us speech and basically said it applies to the president he said whoever he may be maybe he you know he'd be president or general if he should you know interfere with our right to vote.

“He shall be the enemy of the United States and you should be punished I'm paraphrasing right so but this is the type of language that goes around it we also have you know a couple different other pieces after that.”

I just did try in 1879 a couple times to modify 592 and make it stricter and so they wanted to remove that to keep the peace language which they eventually did in 1909 and during that time when they tried to remove it president Hayes actually vetoed that removal twice because he actually wrote about how he thought it would take away his power to use the predecessors to the insurrection act. You know the only exception is armed enemies of the United States that he wouldn't be able to overcome this so you know we think there's a very strong argument that the the insurrection act does not overcome these limitations it cannot be used in these circumstances.

Then you know we were talking about title 32 502f which is as you know Natalie outlined this hybrid status so the national guard is still in state malicious status even though it's a federal mission and so by the language of.

“Five ninety two and five ninety three they are not a part of the army or navy at that point however one of the reasons why read you the language earlier is because it says whoever.”

Five ninety two is a part of the civil military or naval service of the United States and order is these things to happen. The argument would be that the sect of or the president who ordered these to happen would still be in violation of five ninety two because they have brought armed men or troops to the polls even if those are not members of the military.

But it seems like under 502f it would still potentially be a violation but just you know pointing out that this administration has really argued that 502f.

Has no mission limitations and so that argument might still be made even though we don't think that you know it can easily be overcome.

“The title 10 side of the house it's kind of interesting you know besides the insurrection act what else you could use 12406 we've talked about extensively right that was what was used in California or didn't Chicago.”

We think you know the third provision of that when the president's unable with regular forces to execute the laws seems to be fairly closed off at this point right we've we found that that doesn't get around the posse commentatus act according to the Supreme Court.

There are other provisions under 12406 right it was we talked about you know threat of rebellion.

I mean though that like that very vague text would also overcome five ninety two. So before we turn to the heaviest hitting authorities which are of course broad claims of inherent constitutional power. Are there any other statutory new polls or you know camels through the eye of a needle situations that we should be aware of. Learn hit the broad categories there are a couple of other things I wanted to add on those though just to sort of emphasize the way in which they could be used really broadly.

So title 32 Lauren was explaining although the president and the secretary of defense and any other federal officer would be liable for violating five ninety two which is a criminal statute that prohibits federal officials from doing the list of things.

I don't believe it's actually ever been educated in court but I could be wrong about that.

“And just to be clear that's because they have unless they are federalized they are state instruments correct.”

So in that sense the possibly comatatus act that forbids the federal military from performing law enforcement acts actually doesn't apply to any national guard who are in state malicious status under title 32.

And what that means is that although Lauren is right that the president the secretary of defense whoever else in the chain of command on the federal side would be liable under this criminal statute.

And that of course is setting aside the the possibility that the president could pardon any such criminal violations.

“And or the fact that in order to prosecute violations of federal law you have to have a justice department that wants to do that.”

The the fact is that the loophole there might be that for example one could claim that the order came from a governor not from the president I think that would be dubious under the statute given that the mission authority is for the president or for the federal government I should say at that point. You can see various ways in which mischief could be attempted there and there is a bit of a inherent loophole to the fact that the possicomatatus act doesn't apply by its terms and therefore even things that are just just look like straight up law enforcement like crowd control or whatever technically wouldn't apply to these national guard members operating in that status.

Let's turn to the mother of all authorities as Saddam Hussein might say, which is the authority to say, you know, to help with these peddley civil warrior statutes and their linear descendants anything that interferes with my ability to defend the country as I understand defend and the country interferes with my inherent article to authority to be me.

And I think we need troops to surround all the polling stations and only give voters ballots who are my supporters.

Lauren what stops a broad claim of inherent constitutional authority from trumping pun intended all of these pitally statutory constraints that make me feel good. I'll say like let's modify your hypothetical little bit you can't say I am using the military to only allow my supporters to vote.

“You have to say I am using the military to deal with some threat and somehow the only voters.”

And Tifa is going to attack the polls and so we have to keep all the bad people out and only the US military armed to the teeth can do that and so I'm deploying etc etc. Yeah, I mean into one of the things that we saw come up in California and in Chicago was for the mission justification for those military deployments was the protective power. Right, and so this is that like mythical inherent article to power because it's not written, but that you can use the military if the goal is to protect federal property federal persons and federal functions.

And you know is not only started us off, but you know elections aren't federal right their state controlled, but I mean these elections will be for federal offices and in you know 2017 DHS did designate all election infrastructure that supports federal elections as US critical infrastructure. So there is some tie to try to say that like this has some federal purpose federal function going on here. That inherent power is not really clear on what it is the Supreme Court did write on it a bit in in the Chicago case to say that it does not overcome posse comatatus.

But that does not limit it from being used to do various other things that aren't technically enforcing the law right and we just don't have a lot of case law specific on on the protective power and what those limitations might be. We also just you know have the idea of the commander and chief power under article two right you can you can tie this to the idea of. There's a pretty widely accepted you that if there has been an attack on the United States the president has the ability to use the military to respond to that threat.

So if there was an attack underway and attack occurred in some way there's an inherent constitutional power to respond to that and the argument would be.

Okay, yes, there's statutory limitations on specific things, but this is an inherent constitutional power because I must take action to protect America right and that is. But argument that then becomes very factual on like what actually was the threat right did a threat indeed exist didn't attack indeed exist and and you go down this rabbit holes we talked before of trying to prove the facts and how much difference the president has and those circumstances.

“I think you know there's also been some some claims to you know the take care clause and how those might interact more broadly I mean it is a justification for the protective power but maybe even more broadly than the protective power.”

Especially when it comes to elections and what that means for the country so these are you know more nebulous powers where the exact bounds have an exactly been defined.

But you know do have limitations that have to do with with protecting either federal functions or the security of the United States so there has to at least be some type of justification to make that happen. All right, Molly how plausible is all of this I mean it seems like you could certainly get away with some degree of deployment in and around areas in which they're reporting for some limited set of purposes.

“Or if you were lucky enough to have antifa blow something up in real time to defend everything but there are actual limits to what the people could do.”

And so at the end of the day does this seem like a useful to you anyway if you were Trump does it seem like a useful thing to do a lot deploying the national guard all over DCs so they can stand around picking up garbage or planting flowers or is it something that you think realistically.

The regime is permissive enough that it's going to be attractive to do a lot more than that what what did you come away from this I'm curious for each of your reactions.

What did you come away from this thinking the balance of the law encourages. Yeah, I came away from this thinking that the balance of the law encourages not messing with elections but that that really does assume good faith on the part of the executive because again as Natalie mentioned the problem here is that to a certain extent it doesn't matter what the law says it doesn't matter what the courts eventually say. But president practically can do a lot of these things we still tell the courts eventually say no, but that's going to take a while I mean how long is it going to take to challenge it how long is it going to take to ultimately have it decided it can be quite a while and the damage can be done particularly if it's just a matter of deploying troops in a way that's going to intimidate people and also if it's going to create.

Irregularities in the election that would be challengeable and then could lead to.

“Issues certifying or could invite more litigation about the fact that it wasn't the legitimate election so I think there's a real threat regardless of what the law says and that sort of the problem here.”

And specifically I'm really concerned by how interested the administration seems in pursuing these conspiracy theories about foreign interference I think that the most dramatic version of this is the version where the president sends in the troops to take over election infrastructure. Basically and this kind of goes along with the article 2 claim that Lauren was talking about the end here the idea of claiming there's an attack against the United States and saying well I need to do this to. Protect against foreign interference against cyber attack and any impact it has on elections well that's just incidental that's not my purpose I'm doing the military purpose of protecting the United States.

But it will have a huge impact on elections again that's the scariest version I'm not saying it's going to happen but I think that it's possible and I think that everything ranging from that to the sort of less dramatic but still really damaging stuff is possible to even if the law doesn't want it to be. Natalie did you come away more persuaded by the good news here or more persuaded by the bad news are you a cup half full person or a cup half empty.

Terry being used for elections this year or in 2028.

I do think that the work that we did on explaining the 1865 law and its descendants in the form of 592 593 and 10102 was important because those are really little known laws and they are actually very meaningful not only because of how long they've been on the books.

“But because they like the Pussy Comitatis act actually are just criminal statutes.”

But it does have an impact and it is meaningful and history shows that it is more powerful than one might think based on how little known those statutes are in sort of the popular discourse.

And that's true even with respect to the many conversations that people have been having about being concerned that Trump might invoke the interaction act around elections to somehow interfere. But I also think to return to my pessimism the administration has shown a real willingness and I think we can say a real delight in pushing for the most maximalist interpretations of executive authority including and especially on constitutional authorities.

And so if you're going to buy into the most maximalist interpretations of constitutional authorities these statutes are completely irrelevant because they're on constitutional.

“And I think the likelihood that that prevails in court is very unlikely or is very little, but I also think as we've stressed many times on this that the way this would play out is that troops would be deployed.”

And there might be legal challenges and if litigants are lucky they might be able to secure interim relief in the form of preliminary injunctions that order the president to withdraw the troops, but it's pretty likely I think that they wouldn't be able to get interim relief because of the amount of difference that is given to the executive and making determinations about whether to deploy troops. So I worry as Molly was explaining that there are all sorts of follow on impacts that might come from military being deployed for elections and it could be things like intimidating voters so they don't go to polling sites because there are armed people standing there outside the doors and they look scary.

But it could also be that the military does seize voting machines afterwards and you know two days later a court orders them to give them back but by then there's so much rhetoric around how everyone should be suspicious of tampering or look something must have been wrong for the troops to have taken these voting machines we can't have faith in the integrity of these elections. And that's another type of interference that maybe people aren't thinking about for the military because it's it's not you know people with guns shooting them at people but it is a way that could have a really really significant impact negatively obviously on the elections.

Lauren you get the last word are you more encouraged by the good news or more worried by the bad news. I mean I think I'm more worried by the bad news depending on the actor right like as a as a veteran you know I always want there to be an exception for you know to defend the united states and I think that's a good thing right and we want to have the ability to use the military domestically when the president needs to defend the country. Even when five ninety two as an exception for armed enemies of the united states like it depends on how you define these terms and how you justify them and is Natalie said you know if you miss use these exceptions and you miss use constitutional power the amount of difference given.

That means that a lot can happen and elections are short you know there are there are day and person and then you know so long you know weaker so counting after and you know that timing really really matters and we didn't even get into the fact of what all this means that potentially you know a governor is could do under state active duty like there's a lot of exceptions here.

“I think should make people nervous like we want we want to have exceptions to defend the country but you have to have good people interpreting those exceptions in knowing when to use them and when not to.”

Folks, you can read these two pieces by yourselves on your own one the first one is the good news the second one is the bad news and you can make your own decision whether you are more encouraged by the good news or more worried by the bad news Natalie or pet Molly Roberts Lauren Voss.

Thank you. Thank you.

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