Update (9/17/26): After publication, an email account purporting to be from John Goodman, a right-wing activist who has advised Wayne Allyn Root, sent a message to Media Matters that said: “You're writer that did the story on Brian Kennedy with Steve Bannon has just proved himself to be a hack.” 

The email continued, “Brian [Kennedy] knows it takes a constitutional amendment to overturn the Supreme Court, and I'm going to say he's a rhino because he is talking out of turn without knowing the law.” The writer was likely intending to use the term RINO, which stands for Republican In Name Only. 

A guest on Steve Bannon’s War Room podcast acknowledged on September 16 that if President Donald Trump is going to declare a national emergency and try to seize power over election systems, the order would definitely be challenged in court and would almost certainly be overturned.

Brian Kennedy, senior fellow at MAGA-aligned think tank the Claremont Institute and frequent War Room guest, argued that Wayne Allyn Root, another Bannon favorite, was wrong in claiming that a national emergency declaration would be unreviewable by courts.

“With all due respect to Wayne Allyn Root — I myself have said we need very firm executive action, I’ve said it last year and I said it this year — but I always thought it would be challenged legally and taken to the Supreme Court,” Kennedy said.

“And Wayne Allyn Root and that national security emergency memorandum would almost — excuse me, would certainly — certainly be challenged by the Supreme Court,” he continued. “There's no mechanism by which the president has unilateral authority over this."

Bannon later returned to Root’s theory — including a reference to Peter Ticktin, a lawyer aligned with Root — only for Kennedy to repeat his earlier analysis of the flaws to their approach.

“Wayne Allyn Root — the underlying thesis of him and Ticktin and these people is that if the president declares a national security emergency and lays out his reasons for it, that’s virtually bulletproof in the courts,” Bannon said. “You don’t buy that?”

“No, I think they misread the underlying court case that justifies their position in doing so,” Kennedy replied.

“Doing a national security emergency declaration like this would immediately cause one state to sue another state, or states to sue the federal government in combination, and that would immediately go to the Supreme Court,” Kennedy added. “And we saw what the Supreme Court did with Brett Kavanaugh. He said there wasn’t time."

“The court itself is not on the side of the president,” Kennedy said. “It’s going to take the side of the states in this regard. This is something that needed to be hashed out over the last 18 months, and waiting until the last, you know, six weeks before the election is simply — is reasonably speaking not going to be enough time, the court is going to argue, for this to happen."

Kennedy concluded: “I applaud Wayne Allyn Root and Peter Ticktin for their overall thrust here, but when it comes to the actual application of the law here I think the other side is going to win out."

Bannon and guests seem resigned that Trump won’t issue a national emergency declaration before the midterms

For months, Bannon, Root, Ticktin, and others have been openly plotting to subvert the midterms by falsely claiming China has interfered in U.S. elections, then using that manufactured evidence as justification to declare a national emergency and seize control of election systems.

Kennedy’s remarks are the latest evidence that the election denial movement is faltering and appears to be pivoting to a new tactic: preemptively blaming the courts for any future Republican losses. After the Supreme Court blocked Trump’s efforts to limit mail-in ballots, election denier Cleta Mitchell acknowledged the headwinds her movement faced on Bannon’s September 15 episode.

“I don't see that there's anything that can be done on a broad scale before this election, unfortunately,” Mitchell said, adding: “There's so much wrong with this, but honestly I'm pretty tired of these weenies on the U.S. Supreme Court who keep siding with the Marxist girls."

Bannon sounded a similar note in closing out his September 16 episode, following his interview with Kennedy.

“We’ve got to get maniacally focused on this because November could be a wake-up call,” Bannon said. “We’ve just got to be honest with the people at the coalition — all of it, all these hard workers about voter integrity — we didn’t get the voter integrity that we want. So November is going to be what November is, and we’re going to have to live with it and deal with it after that.”