Trump’s Executive Authority Questionable
By Steve Levy
President Trump recently issued an executive order directing all United States Post Offices to implement a new procedure regarding mail-in ballots. It requires post office personnel to refrain from mailing out the ballot until the person to whom it is going has been identified as a person properly eligible to receive the ballot.
The order calls for states to send the U.S. Postal Service a list of voters “to whom the State intends to provide a mail-in or absentee ballot” 60 days before any federal election, and directs the Postal Service to create “unique ballot envelope identifiers, such as bar codes” for those voters. Only those on the approved list would be able to be sent a ballot by the post office.
The president is certainly well-intentioned in seeking to weed out potential voter fraud. Undoubtedly, it is disgraceful how many blue states are randomly sending out millions of ballots without them having ever been requested. So we are in the president’s camp from an ideological perspective.
However, we cannot ignore the fact that the legal authority for the president to enact such an executive order is dubious. That is why it was so essential that the Supreme Court take up this case and provide a level of certainty for all parties involved as we approach a major national election in two months.
The court did not, as many people think, rule that Trump had the authority to issue this executive order. They instead overturned a previous stay on Trump‘s executive order, claiming that the plaintiffs did not have proper standing to bring the case.
Consequently, as of now, Trump‘s order is in effect and must be adhered to by all the post offices, even though it’s still questionable as to whether he had the legal authority to do it. There’s also the logistical question of whether the post offices will be able to put the mechanism in place to actually comply with this order without there being chaos as we approach the election.
This is not the first time that the Supreme Court has failed to do its duty in providing clarity for the American public on these mail-in ballots. In 2020, a major controversy came about when Democrats in Pennsylvania sought to change their election law by allowing mailed ballots to be counted if they were received after Election Day. The existing law stated such ballots had to arrive at the Board of Elections by Election Day itself.
The Democrats tried to change it through the legislature, but were rebuffed. But not stopping there, they then had a not-for-profit bring a lawsuit arguing that a judge should allow for the ballots to be received after the election. This was a clear violation of the Constitution, which requires any such changes to election law to be done by Congress or the state legislature.
In any event, they succeeded in an end run by having a settlement between the Democratic Secretary of State and the Democratic NGO. The court approved it and it went up the chain to Pennsylvania’s Supreme Court, which is Democratically controlled. They ultimately approved it as well.
Republicans went to the Supreme Court, saying this was a clear violation of the Constitution that required state legislative approval, which could not be circumvented through a settlement or a judge.
It was obvious enough, but the court remarkably refused to take the case on the merits before the election. In fact, they said there wasn’t enough time to decide it and that it was premature. They told the Republicans to come back after the election.
And so they did. And what did the court say then? They claimed that the matter was moot. So for the Republicans, it was heads they win, tails we lose.
They couldn’t get a disposition before the election on the claim and then couldn’t get a decision on the merits afterwards when the court claimed it was moot. Justice Thomas’s dissent on this was blistering, blasting the court for refusing to rule on the merits of the guidance given to Americans for future elections.
But the same type of confusion is going to be evident now in this upcoming election because the Supreme Court refused to act on the Trump order.
We question whether Congress can be circumvented with an executive order, even though we very much agree with the concept. But regardless of one’s position on this issue, what is imperative is that we get a sense of clarity to avoid another chaotic Election Day.
Americans have enough reason to be cynical of the integrity of the electoral process. It will get even more jaded if we have post office employees in a tizzy over what to do with these ballots.