Separation of Powers Stands between President and Delaying Election

president trump repeatedly called to delay election, rebuked by senators

By Jonny Lupsha, Wondrium Staff Writer

President Trump repeatedly suggested delaying the election last week, Politico reported Thursday. He cited concerns over mail-in voting fraud as a reason to postpone the election until voting can be done in a more secure fashion. Separation of powers requires Congressional support for such an action.

hand with voting ballot
The separation of powers of the three branches of the federal government stipulates that only Congress can approve postponing a presidential election. Photo by Melinda Nagy/Shutterstock

According to Politico, the president has persisted with a suggestion made last Thursday via Twitter that the general election should be delayed due to fraud concerns. “President Donald Trump on Thursday refused to back down from his suggestion earlier in the day that the November general election be postponed,” the article said.

It mentioned that his recommendation repeated his earlier predictions of “widespread voter fraud amid the coronavirus pandemic and [said] that large numbers of mail-in ballots might mean ‘you never even know who won the election,'” quoting Mr. Trump’s tweet.

As it turns out, Congress holds the power to delay an election, so the tweets caused quite a public stir.

The Dispatch editor-in-chief Jonah Goldberg called the president’s idea a distraction from the GDP’s record-breaking quarterly dip of 32.9%, which was announced just minutes before the president’s first tweet. Similarly, Meghan McCain said on The View that he was “just trolling the media.”

Meanwhile, The New York Times reported on reactions from prominent Republicans like Senate Majority Leader Mitch McConnell and Senators Ted Cruz, Marco Rubio, and Lindsey Graham, all of whom dismissed the idea of an election delay.

The fact that Congress, not the president, can delay the election, is an example of the separation of powers between the three branches of government, which was first defended in The Federalist Papers by James Madison.

Five Vital, Consecutive Essays

James Madison worked on several of the essays that were released in the compilation of articles and essays known as The Federalist Papers, which sought to explain the goals of the Founding Fathers in establishing the new nation of the United States.

Five of his essays, Federalist Paper, No. 47–51, specifically focused on proposed ideas for the separation of powers between the legislative, executive, and judicial branches of the federal government.

“In Federalist Paper, No. 47–51, James Madison discussed in detail the concept of separation of powers and explained why that concept, properly understood, was so important to the future success of the design that the Constitutional Convention delegates came up with for the new American federal government,” said Professor Joseph L. Hoffmann, Harry Pratter Professor of Law at the Indiana University Maurer School of Law. “Each of the five essays dealt with a different aspect of the separation of powers.”

Professor Hoffmann said that in Federalist Paper, No. 47, Madison “responded directly to” anti-Federalist concerns that the three branches of government failed to be separated absolutely. He defended his position in Federalist Paper, No. 48, arguing that the branches must be connected somewhat to prevent domination of the three by any one group.

Federalist Paper, No. 49 saw him rejecting the idea by Thomas Jefferson that disputes of power between the branches be resolved by the American people at conventions; while in Federalist Paper, No. 50, Madison denounced a similar suggestion that regular conventions be held by the people to resolve these disputes. “[Madison noted] that Pennsylvania had tried such an approach and it had turned out to be an utter failure,” Professor Hoffmann said.

Federalist Paper, No. 51 explained several aspects of the proposed federal government and what the separations and overlaps would be of its three branches. The legislative branch makes the laws, comprised of the Congress, which includes the Senate and the House of Representatives; the executive branch enforces the laws; and the judicial branch interprets the laws.

The Formula of 51

Professor Hoffmann referred to Federalist Paper, No. 51 as “one of the most important essays in The Federalist Papers.” So what does Madison cover in it?

“Madison began by explaining that ‘the defect must be supplied, by so contriving the interior structure of the government, as that its several constituent parts may, by their mutual relations, be the means of keeping each other in their proper places,’” he said. “In other words, the true solution to the problem of encroachment by one branch upon the others must be to create a system of government in which each of the other branches has the power to defend itself.”

To do this, Madison argued, each branch of government should have very little power in appointing members of the other branches. Additionally, he said, the members of each branch of government should be the least dependent on the others as possible for financial compensation.

“There were two special features of the proposed new system of American government that gave him reason for optimism,” Professor Hoffmann said. “The first feature was that the proposed new system also included the idea of dual sovereignty.” 

This meant that in the “compound republic” of America, power was divided between two distinct governments, which would be further subdivided among distinct departments, giving rise to a “double security” in which both governments controlled each other while controlling themselves.

The “second feature” of the proposed government was that of America as an “extended republic,” granting security for civil and religious rights both depending on the number of interests and sects of each.

“In essence, Madison firmly believed that America’s sheer size and rich diversity would help to ensure that a majority would never be able to coalesce in a manner that would enable that majority to oppress either individuals or a minority within society,” Professor Hoffmann said.

Edited by Angela Shoemaker, Wondrium Daily

Professor Joseph L. Hoffmann, J.D., contributed to this article. Professor Hoffmann is the Harry Pratter Professor of Law at the Indiana University Maurer School of Law, where he has taught since 1986. He received a J.D. (cum laude) from the University of Washington School of Law.