In times of crisis, states may grant their executives emergency powers that can be expansive in scope often with few, if any, legislative or statutory safeguards. When elections overlap with emergencies, as happened in 2020 when the US presidential election coincided with the Coronavirus pandemic, state emergency statutes enable officials to modify the administration of elections, reshaping how Americans vote.
Author Dakota Foster takes a hard look at the use of state emergency powers during elections and the impact that the broad use of these powers can have on the democratic process. By examining the legal underpinnings of these powers in statute and court precedent, as well as their real-world application across Florida, Texas, and California in 2020, Foster explores an intersection—state emergency powers and elections—that is both under-studied and primed for abuse.
Foster argues that as election administration becomes increasingly politicized, and as governors face increased pressure from national parties, the emergency powers intended to safeguard democracy’s most vital instrument—elections—could be harnessed to democracy’s detriment.
Alden Fletcher analyzes the historical origins and intent behind the Constitution’s “Calling Forth Clause” that has served as a foundation for confiding vast military authority in the president and potentially allowing the use of military force against civilians. While scholars have interpreted the Clause’s original meaning as requiring violent resistance to the laws before military force may be brought to bear, Fletcher shows that evidence from English, colonial, and founding-era history reveals the Clause was designed without such narrow constraints.
But historical evidence also suggests Congress and the judiciary could be intimately involved in the decision of deploying military forces domestically. Fletcher thus concludes that the founding era history both supports broad permission of the federal government to use troops domestically, as well as a significant ability of Congress and the courts to check the executive’s use of military force, even in a crisis.
Article 37 of the Uniform Code of Military Justice (UCMJ) prohibits unlawful command influence (UCI) in military prosecutions. The prohibition of UCI, Vincent A. Marrazzo argues, is a critical component of the military justice system, ensuring both fairness and public confidence in the military prosecution process.
Marrazzo contends, however, that the Court of Appeals for the Armed Forces (CAAF) has expanded UCI doctrine far beyond the textual confines of Article 37. In particular, the development of “apparent UCI”—which allows CAAF to set aside a finding or sentence for the mere appearance of UCI even if the apparent UCI did not materially prejudices the substantial rights of the accused—directly contravenes the Article 37’s requirement that such prejudice must exist in order to set aside a finding or sentence of a court-martial and also Article 37’s requirement that UCI must be intentional.
Although the doctrine of apparent UCI serves laudable goals, it is also in direct conflict with the text of the UCMJ. Ultimately, Marrazzo, concludes, a doctrine of apparent UCI may be desirable, but it is up to Congress, not the courts, to revise the UCMJ.