A Time interview by Jared Kushner this week brought an unexpected windfall for the Biden campaign on one of the most embarrassing stories this month. Recently, former Vice President Joe Biden peddled a bizarre conspiracy theory that President Donald Trump had decided to halt the November election. As I pointed out in a column, the theory showed a striking lack of constitutional knowledge and was legally impossible. Yet, as if on cue from the Biden campaign, Kushner yesterday swept in and offered critics exactly what they were seeking in saying that it is “too far in the future to tell” whether the November election would be held. The answer is that it is not “too far” if you have a modicum of constitutional knowledge. The November election will be held unless there is a coup or an act of collective congressional insanity.
Kushner was asked a question that clearly referenced the Biden conspiracy theory. It should have been a soft ball question where Kushner highlighted Biden’s bizarre lack of understanding of the system. Instead, he told TIME that November was “too far in the future to tell.” He then added:
“It’s not my decision to make, so I’m not sure I can commit one way or the other. I’m not sure I can commit one way or the other, but right now that’s the plan. Hopefully by the time we get to September, October, November, we’ve done enough work with testing and with all the different things we’re trying to do to prevent a future outbreak of the magnitude that would make us shut down again.”
In fairness to Kushner, he seemed surprised by the question and was disavowing any control over a decision. What is odd is that he was clueless about the Biden controversy and the underlying constitutional realities. It is not a “plan” that is subject to revision and certainly not up to the President. As I wrote earlier:
“Now for a constitutional reality check. Elections are managed by the states and not the federal government under Article Two. The date of the presidential election is set by federal law and not subject to an executive order. Even war or martial law does not suspend the date of the presidential election. Since 1845, Congress has mandated that the presidential election be held the Tuesday after the first Monday in November every four years. In order to change that date, Trump would have to have both chambers of Congress vote to do so.
Finally, any delay in the election would also collide with the 20th Amendment, which extinguishes the power of the prior president at noon on January 20. Even if Trump persuaded Congress to delay the election past that date, his term still constitutionally ends on that date unless he is reelected.”
To put it simply, it is not that it is too early for a plan to halt the election. Rather, it is over 175 years too late that say otherwise.