The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent

About The Volokh Conspiracy Editorial Independence Who we are Books Volokh Daily Email Archives Search DMCA RSS

Elections

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.

Ilya Somin | 9.8.2026 6:06 PM

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........

© Reason.com