Mail-in Ballot Case and Trump’s Statutory Authority

I’ve been following Dan’s analyses of the litigation involving President Trump’s attempt to use the Post Office’s limited and basically ministerial power to regulate the handling and delivery of mail as a pretext to decree mail-in voting standards. This, despite the facts that the Constitution vests Congress and the states with the power to regulate elections and, for good reasons, gives the president no such authority.

I thought we might have heard something from the Supreme Court by now, but I suspect that Justice Ketanji Brown Jackson, who is responsible for emergency applications stemming from the First Circuit, is slow-walking the response to the Trump Justice Department’s appeal.

The state of play is that last Friday, Judge Indira Talwani, a Biden appointee to the federal district court in Boston, issued a preliminary injunction prohibiting the administration from requiring state compliance with the Postal Service’s new rule while the case continues. On Sunday, the Justice Department asked the Supreme Court — in the application that went to Justice Jackson in the first instance — to suspend the preliminary injunction. Jackson gave the states and their amici until Wednesday (September 9) to respond. She’s not in a hurry. The longer the delay, the stronger the legal argument that, merits aside, it is too late to impose new election rules. Justice Jackson has already made clear that she opposes the president’s attempt to do just that. Eventually, she will refer the matter to the full Court, but I’ve seen no indication that she’s done so yet.

After the closely divided (5–4) Supreme Court, on standing grounds, declined to intervene, and implicitly rebuked the lower courts for doing so, I opined that the majority was right — i.e., the dispute was too premature for the courts to weigh in (at that point, no final action had yet been taken on the president’s executive order, so the states had not yet been directed to do anything to their detriment); but I also expressed confidence that the Court would remedy the situation if the administration did anything illegal.

We’ve reached that point. The president, through the post office, is trying to mandate that the states design mail-in ballots (the ones they mail to voters who want to vote by mail) to include a code that would make them easily traceable for fraud investigators. Trump is also demanding that the states provide the post office with lists of voters to whom they’ve mailed these ballots. The implication is that the administration will check the state-supplied lists against its own list of eligible voters (derived from federal databases) and potentially prosecute state officials who mail ballots to voters the administration believes are ineligible (mainly, because it suspects they are not American citizens).

Regardless of whether one thinks this is a good idea, I don’t believe the president has any such authority. Nor has the administration proved its claims that registration and voting by aliens is a rampant problem, but that’s beside the point if the president lacks power to dictate election security measures. (I assume Trump truly believes our elections are not secure, but to me, this is mainly theater stoking the claim he has never been able to substantiate: that the 2020 election was stolen from him.)

While we wait on the Supremes, I want to look at the key issue of the executive’s statutory authority to regulate the handling of mail. (The Constitution empowers Congress to establish the Postal Service, and the Supreme Court has held that this power includes measures necessary to ensure that the mail is delivered safely and efficiently. See Ex parte Jackson (1878). As in most areas, the president’s authority is limited to exercising Congress’s laws.)

In defending the president’s executive order, Solicitor General John Sauer contends that Congress has given the U.S. Postal Service (a component of the executive branch) general authority to adopt rules and regulations as may be necessary to the execution of its functions. Regarding the president’s proposed rules for mail-in ballots, Sauer elaborates that “The Postal Service has previously wielded that authority to issue analogous preparation requirements for the mailing of cremated remains and replica explosives.”

In an amicus brief opposing the administration’s position, the League of Women Voters of Massachusetts (a left-leaning group that is content to be constitutional originalists and statutory textualists since it suits them to do so in this case) counters that the Postal Service does not rely on general authority to prescribe special-packaging standards to which Sauer alludes. Rather, the league maintains that Congress has enacted express standards that specifically address the preparation and packaging of potentially harmful items. (See, e.g., Section 1716, a criminal statute addressing hazardous and injurious materials, and Section 3001, a civil statute addressing non-mailable matter.)

The league’s argument is a stretch. It may be right that cremated remains are akin to hazardous materials in that the need for special handling is obvious. Nevertheless, Sauer is correct that there is no statute specifically addressing cremated remains. That said, even if the Postal Service is relying on general authority, it takes pains to draw the analogy to hazardous materials that Congress has addressed in specific statutes. (See also USPS Publication 52, Appendix C, cited by the league’s brief, analogizing cremated remains to hazardous materials (citing §§ 221.1 (hazardous, restricted, or perishable items) and 325.1 (warning labels for hazardous materials).)

That is to say, the league’s overarching point has merit. Cremated remains may not be hazardous exactly, but like hazardous items they most certainly are not ordinary mail. It is common sense that there should be special handling instructions for them. In calling for them to be packaged similarly to other non-ordinary items that Congress has specifically regulated, Publication 52 is not suggesting that Congress has turned the Postal Service loose to impose special handling instructions on ordinary pieces of mail that pose no risk.

I am open to the idea that, because elections are important and we want mail-in ballots to be processed expeditiously, the Postal Service should be able to propose guidance to the states. But I don’t see how such guidance could legitimately be mandatory because, in the Constitution’s hierarchy, the states and Congress are supreme when it comes to elections. The executive has no role — except, of course, to execute the laws faithfully, which includes laws empowering the executive to prosecute illegal registration, illegal voting, and forms of election fraud.