Trump is quickly running out of time to implement his rules attacking mail-in ballots, but that doesn’t mean that this is not an all-hands-on-deck moment for democracy.
What Trump is attempting clearly violates the Constitution, which gives Congress the sole power to set the rules for federal elections. The states conduct the elections themselves, and the federal government has no role in the conduct of elections.
Trump is trying to sidestep the Constitution by claiming that this rule comes from the USPS and not the president, but the Constitution does not allow the USPS a role in elections either.
On Tuesday, 261 current and former members of Congress from both parties filed an amicus brief with the Supreme Court urging it to strike down Trump’s executive order and the USPS rule.
The members wrote:
First, the Executive Branch’s directives to regulate mail-in and absentee ballots are unconstitutional because they encroach on the States’ primary and Congress’s paramount authority under the Constitution’s Elections Clause. U.S. Const. art. I, § 4, cl. 1. The text and history of the Elections Clause categorically bar the Executive Branch from asserting unilateral authority over federal-election administration.
The executive branch has no authority over federal elections. Congress has not issued any regulations or statutory authority to the executive branch over federal elections, and Trump is trying to mess with the states’ sole authority to administer elections.
As you will see below, Trump doesn’t have a legal leg to stand on.