Trump's Executive Order on Mail-in Ballots is an Assault on Federalism and Separation of Powers

It seeks to usurp state and congressional power over election administration.

NA

President Donald Trump is trying to force states to severely curtail mail voting for the fall election by requiring the US Postal Service to refuse to deliver mail ballots unless states meet various onerous requirements. This plan is an affront to both federalism and the separation of powers. The Constitution grants state governments default authority over election administration, subject to override by Congress, when it comes to procedural rules for federal elections. Trump is seeking to usurp these powers.

Numerous state governments and private organizations challenged Trump's executive order in court. The Supreme Court overturned an initial district court injunction blocking the policy, ruling - on procedural grounds - that the plaintiff states had filed their case prematurely (before the US Postal Service had issued a rule implementing Trump's order). While the Supreme Court's reasoning was dubious, it also - for reasons pointed out by Georgetown law Prof. Steve Vladeck - had little effect. Even before the Court had issued its decision, USPS did issue a final rule, and federal district court Judge Indira Talwani issued a new ruling blocking the order, soon thereafter. The Trump Administration has asked the Supreme Court to block the new order. The Justices would do well to say "no" to Trump.

The Elections Clause of the Constitution gives states primary authority over "The Times, Places and Manner of holding Elections for Senators and Representatives," subject to Congress' power to modify these rules by legislation. As Judge Talwani points out, "The Constitution does not grant the President any specific powers over elections." And, as she explains in detail later in her opinion, no federal statute gives the president the power to use the Postal Service to massively restructure state mail-in ballot rules. USPS does have authority to make rules necessary for the delivery of mail. But there is no power to use that as leverage to force changes in state election laws.

Judge Talwani further points out that the sweeping power claimed by Trump here runs afoul of the "major questions doctrine," which requires Congress to speak clearly when delegating authority over major political and economic issues to the executive:

The Supreme Court has made clear that, where "the Government claim[s] broad, expansive power on an uncertain statutory basis[,]" a reviewing court may rely on the general principle that Congress does not delegate "'highly consequential power' through ambiguous language." Learning Resources v. Trump, 607 U.S. 229, 242–43 (2026) (plurality opinion) (quoting West Virginia v. EPA, 597 U.S. 697, 723–24 (2022)). Few of Congress's powers are more consequential than its supervisory authority to regulate elections, because voting is "preservative of all rights." Yick Wo v. Hopkins, 118 U.S. 356, 370 (1886).

As I have previously explained, the Learning Resources tariff case cited by Judge Talwani (which I helped litigate) builds on previous "major questions" precedent.

The power to use USPS to restructure mail voting is pretty clearly a major one. Eight states allow all elections to be held entirely by mail, and others do with respect to many categories of voters. As Judge Talwani outlines in detail, the administration's new rules requiring states to use special envelope and ballot designs approved by USPS and to input all voters' information into a USPS-run portal, would severely disrupt election administration. They may well be impossible to implement in time to mail out ballots for the upcoming November elections (many states have already printed ballots, and are in the process of sending them out). All told, many millions of votes are likely to be be affected. Moreover, if this order is upheld, the same reasoning could be used to impose even more sweeping changes to mail-in voting in the future.

Trump claims the plan is needed to combat voter fraud. But there is no evidence of large-scale fraud in mail-in voting, or even that fraud in this type of voting is more common than with in-person voting. Trump's claims of fraud are likely part of his more general campaign to cast doubt on election results that go against him and the GOP, and to justify his attempts at illegal interference with elections. And, as my Cato Institute colleague Walter Olson points out, Trump has admitted that part of his motivation for attacking mail-in voting is to reduce Democratic turnout and bolster Republicans' election chances. In recent years, Democratic voters have been more likely to vote by mail than Republican ones - ironically, in large part because of Trump's own bogus claims that mail voting is somehow prone to fraud.

There is good reason for the constitutional allocation of power over elections, which largely excludes the president. No one person should have broad authority over election administration, because such power can easily be abused for partisan ends. This consideration also bolsters the rule for giving states primary responsibility over election administration, thus making it more difficult for the majority party in Congress to skew election rules in its favor, nationwide. In order to do so, they at least have to enact specific legislation, which can often be difficult.

Ironically, in recent decades liberal Democrats were primarily the ones who sought to expand federal control over elections, hoping that doing so would make the system more efficient and expand access to voting. Prominent election law scholar Rick Hasen - long a leading advocate of election law centralization - recently indicated that Trump's abuses have led him to rethink that position. I myself long had a more or less neutral view on this issue, believing that decentralized federalism has much less value in this field than in most others. Trump has led me to rethink my views, as well.

There are still plausible arguments for increased federal control over elections. For example, one can argue that Congress should improve election administration in states notorious for taking too long to count ballots. But any such shift must be made as the Constitution requires: through specific legislation enacted by Congress. It cannot be left up to the whims of any one person, including the president.