President Donald Trump signed an executive order to limit mail-in voting on Tuesday in the Oval Office with Secretary of Commerce Howard Lutnick. Trump cites mail-in voting fraud as a basis for his claim that the 2020 election was stolen from him. 

With hotly contested midterms upon us and a power-hungry president suggesting “we shouldn’t even have an election,” we all should be worried.

On Tuesday, President Donald Trump signed an executive order he described as “foolproof” to restrict mail-in voting. It followed on his thus-far failed attempt to pass the SAVE America Act, which would mandate proof of citizenship as a precondition of voting.

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Trump is trying to steal the midterms. Can he leverage his ‘excursion’ in Iran to help?

These efforts are almost certain to fail in time to impact the midterms. But to guarantee the safety of the election, it’s imperative to battle test other ways Trump could meddle.

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Our wannabe dictator has previously cited a fictional and debunked account of Chinese meddling in the 2020 election, suggesting he may try to invoke imaginary and unlawful “war powers” to cancel or seize control of this year’s elections.

Trump’s public musings surrounding canceling elections have come as he has tightened his grip over the military by unilaterally ordering them into undeclared wars (he calls these “excursions”) against Venezuela and now Iran. Trump tested the waters for giving illegal orders by killing unarmed sailors clinging to a disabled boat in waters off Venezuela, something literally cited in U.S. military training manuals as a “crime.”

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Following the execution-style killings of Renee Good and Alex Pretti in Minneapolis, also by federal agents, many are asking, and rightfully so, are there any limits to what Trump might do?

And more to the point: Is there anything anyone can do to stop him?

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Thankfully, there’s an answer to that question. Fifty of them, actually — represented by stars on the flag, each a sovereign state with sovereign powers. Under our federal system, each state has unique powers protected by the Constitution, such as legislating criminal and civil laws, providing a republican form of government within its territory and, yes, exclusive control of elections. 

Additionally, each state — from the largest to the smallest, the most populous to the sparsest — enjoys broad constitutional powers under the 10th Amendment to enforce its own laws and under the Second Amendment to maintain control over its state militia, also known as the National Guard.

Let’s put that to the test in clear language even our Dear Leader should be able to understand:

Nowhere in our legal system is it contemplated — even by the controversial 2024 Supreme Court ruling that granted our chief executive broad immunity while carrying out the official duties of his office — that executive authority includes “absolute immunity” from the criminal process. In other words: you, Mr. President, can be held to account.

The same goes for your goons who shot Good and Pretti. Theoretically, they could have been arrested, or otherwise detained on the spot, under suspicion of having violated a variety of state laws — had you not, of course, immediately pulled them out of Minnesota, presumably seeking to shield them from justice.

Now that we’ve seen that page of the playbook, don’t expect the governor of the next blue state you target to be caught unprepared. Because there are most certainly ways states and governors can begin preparing themselves to enforce their laws against federal agents who enter their state for the purpose of breaking those laws — especially at election time.

Remember last year, for example, when you sent federal immigration agents to Los Angeles, supposedly to protect federal buildings? Remember how a police line of deputy sheriffs was placed between your agents and the peaceful demonstrators? That alone should show you that states have the power and the will to resist.

After Los Angeles, you switched tactics in Minneapolis, a smaller city, turning federal agents into thugs roaming the streets looking for trouble, overwhelming a much smaller local police force. Minnesota Gov. Tim Walz should be commended for his restraint and diligence in achieving at least a partial drawdown in federal presence and for protecting the citizens of his state. But other governors, especially those serving in more populous states, could be far more proactive — by arresting or detaining agents, when necessary, to prevent or to curtail lawless federal conduct in their local jurisdictions.

Meanwhile, calling up and federalizing members of a state’s National Guard is an emergency power, not a political convenience. National Guard troops are not ipso facto members of the federal forces. They are the state militia as described in the Second Amendment and can be called to federal service only under specific circumstances prescribed by law. Suffice it to say, election meddling is not among those changes.

Furthermore, each member of the Guard possesses the individual right to “refuse to volunteer for federal duty,” if he or she thinks it’s unlawful. 

Should the need arise, governors could invite their Guard troops to lawfully refuse the order to federalize, to instead volunteer for other duties within their state mission. Such as following Immigration and Customs Enforcement or Border Patrol agents around, holding them to account. It is the state militia, after all.

What’s more, as the commanders-in-chief of the Guard in their states, governors have the means to directly resist the federalization of the Guard members under their command. 

One way of doing this would be to create a new unit for a distinct purpose, such as cleaning up after a natural disaster, or shadowing ICE or Border Patrol agents to ensure the general peace — and then transferring Guard troops to that new unit from whatever unit you, sir, were planning to call up — leaving that unit you’re in the process of federalizing with nothing but its commanding officer.

Under this scenario, the stage could be set for a potential confrontation between state and federal interests, where the state militia and the governor in question are doing everything by the book.

If you ever gave the order to forces under your control to initiate hostilities — such as using live ammunition against a state militia, which is again, acting squarely within the letter of the law and their constitutional authority — active duty military commanders could not be expected to back you up under such questionably legal circumstances. Meaning, if you persisted in giving this illegal order, it could lead to your arrest, under the U.S. Military Code, and removal from the chain of command.

Guest opinions in Open Forum and Insight are produced by writers with expertise, personal experience or original insights on a subject of interest to our readers. Their views do not necessarily reflect the opinion of The Chronicle editorial board, which is committed to providing a diversity of ideas to our readership.

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All that should provide you with something to think about, Mr. President.

Brett Wagner, now retired, served as professor of national security decision making for the U.S. Naval War College and adjunct fellow at the Center for International and Strategic Studies. J. Holmes Armstead, now retired, served as professor of strategy and international law at the U.S. Naval War College and as a judge advocate general, inspector general and civil affairs officer in the Army, Army Reserves and National Guard.

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