What the Court was asked to do on Monday is narrower than much of the coverage suggests—and a grant of relief would be far less significant than it may appear.
You seem to retain some shreds of faith in the intellectual honesty of the Supreme Court majority. I find this touching. I'd ascribe it to naivete, if you weren't the smart and knowledgeable person that you are. Spiritual innocence? Optimism? Whatever - bless you for continuing to see some possibility of light in the darkness. For my part, I would not find it surprising to read a majority opinion by "Justice" Alito extending the unitary executive theory to authorize the president to order the USPS to do any damn thing he wants.
This analysis and explication of the issues is very interesting. I am confused, though, as to why the intervenor states have standing to request a stay. I don't see any circumstance in which they suffer harm. What is their stake in this litigation other than that they don't like what another state is trying to do?
Steve, thank you. I know this great "post" is about the current posture of the litigation -- but on a merits affecting question that I ponder:
Is the post office really an executive agency? As the post offices (and post roads -- see McCulloch) are a constitutionally required creature within the Art. 1, S8, c6 powers of Congress, can the President's authority to name its board, etc. be strictly a ceremonial convenience? And therefore, outside the questions of Congressional authority over voting, can the President really order the P.O. to do anything not specifically authorized by Congress?
This comment is crucial. USPS is an executive branch agency only in that the Board is subject to appointment and confirmation. but the PMG and his Deputy are hired by the Board and they do not have the power to unilaterally adopt a rule that is as the California case says is contrary to to the governing statute So the question of standing and stays are moot and a decision on the Motions now before the Court should be dismissed for failure to raise a justiciable issue
I'm not a lawyer, but 39 U.S. Code Chapter 2 Part I, linked below, seems to answer your questions (at least for non-lawyers :--).
I wonder what, if anything, the recent U.S. Supreme Court decision on the president's authority over independent agencies, implies about president Trump's authority regarding the U.S.P.S.
§201: "There is established, as an independent establishment of the executive branch of the Government of the United States, the United States Postal Service."
§202: "The exercise of the power of the Postal Service shall be directed by a Board of Governors composed of 11 members appointed in accordance with this section. ..."
Am I wrong in thinking that the Supreme Court could send an unmistakable signal now to the DOJ/President's lawyers that they are opposed to the claim that the President has any power to order the U.S. Postal Service to refuse to deliver mail-in ballots to people not on a specific list? Do I recall correctly that Professor Vladeck identified a case recently whose scope the estimable Chief Justice expanded beyond its specific or more narrow issue? Why not do the same here, to remove one uncertainty or block one stratagem– among the many POTUS is counting on to be able to challenge and upend the results of any election whose outcome he does not like – sooner rather than later?
And if this Court does not, then is it not hammering another nail in the coffin of trust or belief in its intellectual integrity, ethical standards, and the commitment of some (most) Justices to its oaths of office? When will these nails cumulatively weaken the coffin to the point where it falls apart, revealing its contents, the corpses of the Constitution and the Declaration of Independence, even to those among us who remain most reluctant to acknowledge the awfulness of the current Administration ?
Good work by the court in reminding the president that the Elections clause has no role for the executive, but her Honor is letting the big fish slide away.
The first term of Congress was a busy one. When the question of how to remove appointees came up they had no ready answer and finally decided the Executive Vesting clause vests it in presidents as an extratextual power. It was a terrible mistake. A year and a half later, Amendment X was ratified to correct it. The national level of government has no extratextual powers. But by that time the president had issued executive orders as an extraconstitutional Executive Vesting clause power, and they still didn't know how to remove appointees, so they didn't correct the Act.
It was in error before Amendment X.
In a republican form of government, at least domestic policy must be made by a representative legislature. The House was always elected by the people, and senators represent the state's interests. The executive branch is not representative. The electors elect presidents. One reason for this is to keep the distinction clear. Congress makes policy by law. The president's only role is to sign or veto bills. Not only is the president limited to making sure the departments execute the laws, the Necessary and Proper clause bars him from making policy on how the departments execute laws.
The courts certify tricky questions of state law to the states, but they've never certified questions of congressional law to Congress. It's high time they began. No court may make law, and the Elections clause is not ambiguous.
The District Court calculated that the President's Executive Order requires that the final Postal Service rule “be published by July 29, 2026” See page 69 of the SG’s Application. Where is the Rule? None has been published. Is the Government playing a cat-and-mouse game, knowing that its ripeness argument disappears once that Rule is published? And if it waits long enough it will be too late for the complaining states to get effective relief.
I don’t think the Trump administration is in any particular rush to get final rulings in this matter. I think it would like to push those rulings right up against whatever deadlines it needs to implement the USPS actions. I think it once to be able to run to the Supreme Court at that point and demand action now, now, now! I think it wants to leave the states as little time as possible to react to whatever horrendous Supreme Court ruling comes down then. And, finally, just a reminder about how the tight timelines in Bush v. Gore gave the five Bush justices wiggle room to play fast and loose with the facts of the case.
This is an excellent legal analysis and is incredibly valuable for that reason. Were the Roberts Majority a normal Supreme Court and not a super legislature driven by the desire for partisan outcomes, this analysis would be if not the end of the story than an excellent cheat sheet to follow how this case evolves. But given what is at stake — a blatant unconstitutional power grab aimed at disenfranchising millions of voters and throwing the 2026 elections into utter chaos to give the current regime options to maintain power — procedural niceties only enable the authoritarians among us (to include at a minimum Thomas and Alito).
As a hypothetical question (from a non-lawyer), what recourse, if any, would states and voters have if the U.S.P.S. simply refused to deliver mail-in ballots? In United States Postal Service et al. v. Konan (1, 2), the U.S. Supreme Court ruled that the USPS is "immune to suits for money damages for failure to deliver the mail even when postal employees intentionally and maliciously refuse to deliver the mail" (Wikipedia). What other legal remedies would be available?
The key phrase in your quote is “for money damages”. If I understand correctly, you could still sue for an injunction under the Administrative Procedure Act section 702.
They could decide to use FedEx Ex. The Postal Service is losing large sums of money. It is stealing from its retirees to pay its bills. It has reached the limi5 of its borrowing power. It is pricing itself out if business
The Postao Service gets paid fir deli bring mail. Elections mean volume. Thus rule is bad for business. Therefore one would be justified in concluding that one of the aims of this order is to deztro6 the Postao Se4vice.
Thanks for clarifying this 'more complicated than it appears' litigation.
Part of the game here seems to be how to play for time. For plaintiffs, it would seem that the longer the case takes to get to any merits ruling the better. North Carolina requires military and overseas ballots be "available and distributed" by Sep. 4, 2026, 36 days from today(1). Nine other states require mail-in ballots to be available by 17-19 Sep.(2), 49-51 days from today, with many others coming not far behind. Section 3 of the EO would require the use of new barcodes and logos on mail-in ballots. Some states, notably California, Nevada and Washington, are 100% mail-in voting states. Even now it would seem to be too late to try to add barcodes and logos to the tens of millions of ballots from these 3 states alone. Delay gives the courts a way out, not by ruling on the merits quickly, but by saying it is too close to the election to change the rules (more on this below).
For the government, it's harder to say how time works for them. On the one hand, the sooner they can implement the EO, the more likely they are to be able to argue states and voters have time to comply. On the other, the lack of a decision on the merits might give them an opening to simply implement the EO insisting they have the power to do so and saying the courts' lack of decision falls in their favor. This would not be the first case in which they claim that, failing a final ruling by the Supreme Court, they believe they are correct and will ultimately prevail. It would not be surprising to see Trump, Blanche, et al., implement the EO at the last minute and dare the courts to stop them.
Purcell who? Never heard of him? - For the Supreme Court, the delay may give the right-wing weasels a way out. Thomas and Alito would almost certainly decide in favor of Trump, maybe even citing the recent discovery in New Jersey of hundreds of ineligible voters being registered and some voting as justification for the Executive Branch to meddle in, sorry, insure the integrity of, the election. Kagan, Sotomayor and Jackson would just as certainly rule against Trump, with the law and Constitution on their side. The weasels*, Roberts, Gorsuch, Kavanaugh and Barrett seem most likely to hide behind procedure and simply delay a merits ruling until after the November elections. They can say, "Who us? We didn't decide anything."
quite apart from bar codes etc., in WA, OR, CO, not being able to mail ballots to someone not on some questionable list would mean that the state has to decide NOW whether to invest bazillions in voting machines and set up places to put them. I suspect it is already too late to do that.
How is the state supposed to know WHERE people not on the notoriously inaccurate SAFE list even live? Are they supposed to guess that places where people of color, the vast majority of newly naturalized citizens, tend to live? Nothing like forcing a state to make decisions based on race. So "not ripe" seems kind of, well, dumb.
I can not find fault with Professor Vladeck's analysis of the issues now presented by any these cases before the Supreme Court. But I am afraid I am not as sanguine as he as to likely outcomes, and the consequences of the Court granting a mere stay pending appeal of the lower courts' decisions. Nor I am prepared to give even what little credit he would appear willing to concede to the Solicitor General's arguments as to standing, in the crucial Boston cases, and their readiness for review. What the Post Office and "the Government" generally, are asking for, is for the Court not to decide these cases on the merits, but for it to stay the trial courts' decisions pending appeal,. so that they can go ahead and implement the provisions required by the President's Executive Order in time to control the administration of the 2026 midterm elections, come hell or high water. And let the Court, the Devil, and the Administrative Procedures Act take the hindmost. And that is what will happen if the Court but just grants the stay pending appeal that they are seeking.
The Solicitor General's argument comes down to this. "We all know you are not going to reach the merits of this case before sometime next year. We know you are not even going to reach the merits of our procedural and jurisdictional objections to the hearing of these cases. If you do not grant us a stay pending appeal, we won't be able to go ahead with our plans to administer this fall's elections. That would be bad, because we are good. So you should go ahead and let us do what we want, and decide later whether it was right to do so. And maybe then order that the cases be dismissed as moot.
These are equity cases was injunctions are an equitable form of relief. I would make the point that "the Government" does not come to them with clean hands. And I would challenge the presumption of regularity on which the Solicitor General's arguments rest by noting, as Professor Vladeck points out, that the President's Order basically presumes to override the requirements of the Administrative Procedures Act with respect to rule making most crucially in the case of the Postal Service, and tells it exactly what to do and by when. The outcome of the rule making proceeding is a foregone conclusion, for appearing before Congress Postmaster General Stearns has stated that he will indeed execute the President's orders to the Postal Service by adopting rules implementing its provisions, and then that he will indeed order the Service to refuse to handle ballots that are not on lists provided by state officials, and approved by Homeland Security. By his own admission, the Postal Service is already late in executing the President's order, and is facing a deadline to do so that does not permit observance of the notice and comment provisions of the APA, nor allow time as required by law, for review by the Postal Service Board of Governors.
This being so, the Solicitor General's arguments can not be adjudged to have been presented in good faith. He knows better. The rule making proceeding is a farce, the outcome of which is has been dictated by the President. And it is now or never. If this gambit to take over the elections is allowed to proceed, and is sprung on the states two or three weeks from now, they will not have time to comply, even if they wish to, let alone protest. As I believe was noted by the Appeals Court, even if these cases were dismissed, and the Government were left to its own devices, it would not be reasonably possible to implement the provisions of this Order in time to cover the upcoming midterms. That was one of the reasons cited by the Plaintiffs in support of their requests for injunctive relief. And stepping even further back, had they world enough and time, it is hard to see how they could ever fully comply with the requirements of this regime which the President seeks to impose. For states do not now maintain central repositories of voter registration roles. Such records are kept by county and local government offices. They are constantly in flux as people move, come of age, get married, die, et cetera, et cetera. And what the President is insisting is that the States do is to constantly conduct rolling censuses of certified registered voters within their jurisdictions. At what point in time would such lists be finalized for purposes of one election ??
Such a regime would prove impossible to administer. But maybe that is not the point. It is not intended as such. It is intended to cause a train wreck. However that may be, what is abundantly clear is that it is beyond the President's authority to compel the implementation of such a massive new regime of centralized elections administrtation by Homeland Security and the US Postal Service.
And we are one per curiam order on the shadow docket away from it. "Oops. We goofed."
Note that the district court, in denying the Government's motion for stay of the injunction, stated: "As a threshold matter, the court’s injunction is clearly limited to Plaintiff States alone. Accordingly, nothing in the court’s order prevents Defendant agencies
from endeavoring to implement the EO with respect to non-Plaintiff States."
So the injunction does not legitimately provide an excuse for the Postal Service to delay issuance of a final Rule pursuant to Sec. 3 of the Executive Order past the July 28 due date.
Note taken. The position Sauer has been forced to take has turned him in to a flim flam merchant. The Government has severelyy compromised his arguments by waiting too long to do this and by overriding the APA and statutory review requirement in order to comply with the order. How can he then argue with a straight face that these same requirements make the suit premature as a matter of law ?? With deadlines coming up all over the place ?
Lots of political pressure being put on the Court in this instance. All Democratic states against. Most Republican states for. And Sauer saying "You need to let us do this because there is no time for you decide whether yiu should".
"Armed with Tuesday’s D.C. Circuit ruling (which came after the Justice Department’s filing), the states argue quite aggressively that there’s a real tension between the First Circuit’s denial of a stay and the D.C. Circuit’s affirmance of the dismissal in DSCC. Again, there isn’t, but you have to dig fairly deep to see why."
"Digging fairly deep" is not what the Court majority and its "lowers" focus on. If/when anyone refers to the current Court majority with any references to "being practical" or "living in the real world," remember me, please.
You seem to retain some shreds of faith in the intellectual honesty of the Supreme Court majority. I find this touching. I'd ascribe it to naivete, if you weren't the smart and knowledgeable person that you are. Spiritual innocence? Optimism? Whatever - bless you for continuing to see some possibility of light in the darkness. For my part, I would not find it surprising to read a majority opinion by "Justice" Alito extending the unitary executive theory to authorize the president to order the USPS to do any damn thing he wants.
This is extraordinary analysis and fully justifies the cost of subscribing. Many thanks!
This analysis and explication of the issues is very interesting. I am confused, though, as to why the intervenor states have standing to request a stay. I don't see any circumstance in which they suffer harm. What is their stake in this litigation other than that they don't like what another state is trying to do?
Steve, thank you. I know this great "post" is about the current posture of the litigation -- but on a merits affecting question that I ponder:
Is the post office really an executive agency? As the post offices (and post roads -- see McCulloch) are a constitutionally required creature within the Art. 1, S8, c6 powers of Congress, can the President's authority to name its board, etc. be strictly a ceremonial convenience? And therefore, outside the questions of Congressional authority over voting, can the President really order the P.O. to do anything not specifically authorized by Congress?
This comment is crucial. USPS is an executive branch agency only in that the Board is subject to appointment and confirmation. but the PMG and his Deputy are hired by the Board and they do not have the power to unilaterally adopt a rule that is as the California case says is contrary to to the governing statute So the question of standing and stays are moot and a decision on the Motions now before the Court should be dismissed for failure to raise a justiciable issue
Per the late, great Buddy Holly, "that'll be the day."
I'm not a lawyer, but 39 U.S. Code Chapter 2 Part I, linked below, seems to answer your questions (at least for non-lawyers :--).
I wonder what, if anything, the recent U.S. Supreme Court decision on the president's authority over independent agencies, implies about president Trump's authority regarding the U.S.P.S.
§201: "There is established, as an independent establishment of the executive branch of the Government of the United States, the United States Postal Service."
§202: "The exercise of the power of the Postal Service shall be directed by a Board of Governors composed of 11 members appointed in accordance with this section. ..."
https://www.law.cornell.edu/uscode/text/39/part-I/chapter-2
Ah, Finally Prof. Steve gets to this ! Ive been waiting for it. Nothing more important now.
Am I wrong in thinking that the Supreme Court could send an unmistakable signal now to the DOJ/President's lawyers that they are opposed to the claim that the President has any power to order the U.S. Postal Service to refuse to deliver mail-in ballots to people not on a specific list? Do I recall correctly that Professor Vladeck identified a case recently whose scope the estimable Chief Justice expanded beyond its specific or more narrow issue? Why not do the same here, to remove one uncertainty or block one stratagem– among the many POTUS is counting on to be able to challenge and upend the results of any election whose outcome he does not like – sooner rather than later?
And if this Court does not, then is it not hammering another nail in the coffin of trust or belief in its intellectual integrity, ethical standards, and the commitment of some (most) Justices to its oaths of office? When will these nails cumulatively weaken the coffin to the point where it falls apart, revealing its contents, the corpses of the Constitution and the Declaration of Independence, even to those among us who remain most reluctant to acknowledge the awfulness of the current Administration ?
In August.
Honestly!
Good work by the court in reminding the president that the Elections clause has no role for the executive, but her Honor is letting the big fish slide away.
The first term of Congress was a busy one. When the question of how to remove appointees came up they had no ready answer and finally decided the Executive Vesting clause vests it in presidents as an extratextual power. It was a terrible mistake. A year and a half later, Amendment X was ratified to correct it. The national level of government has no extratextual powers. But by that time the president had issued executive orders as an extraconstitutional Executive Vesting clause power, and they still didn't know how to remove appointees, so they didn't correct the Act.
It was in error before Amendment X.
In a republican form of government, at least domestic policy must be made by a representative legislature. The House was always elected by the people, and senators represent the state's interests. The executive branch is not representative. The electors elect presidents. One reason for this is to keep the distinction clear. Congress makes policy by law. The president's only role is to sign or veto bills. Not only is the president limited to making sure the departments execute the laws, the Necessary and Proper clause bars him from making policy on how the departments execute laws.
The courts certify tricky questions of state law to the states, but they've never certified questions of congressional law to Congress. It's high time they began. No court may make law, and the Elections clause is not ambiguous.
The District Court calculated that the President's Executive Order requires that the final Postal Service rule “be published by July 29, 2026” See page 69 of the SG’s Application. Where is the Rule? None has been published. Is the Government playing a cat-and-mouse game, knowing that its ripeness argument disappears once that Rule is published? And if it waits long enough it will be too late for the complaining states to get effective relief.
Bingo.
I don’t think the Trump administration is in any particular rush to get final rulings in this matter. I think it would like to push those rulings right up against whatever deadlines it needs to implement the USPS actions. I think it once to be able to run to the Supreme Court at that point and demand action now, now, now! I think it wants to leave the states as little time as possible to react to whatever horrendous Supreme Court ruling comes down then. And, finally, just a reminder about how the tight timelines in Bush v. Gore gave the five Bush justices wiggle room to play fast and loose with the facts of the case.
This is an excellent legal analysis and is incredibly valuable for that reason. Were the Roberts Majority a normal Supreme Court and not a super legislature driven by the desire for partisan outcomes, this analysis would be if not the end of the story than an excellent cheat sheet to follow how this case evolves. But given what is at stake — a blatant unconstitutional power grab aimed at disenfranchising millions of voters and throwing the 2026 elections into utter chaos to give the current regime options to maintain power — procedural niceties only enable the authoritarians among us (to include at a minimum Thomas and Alito).
As a hypothetical question (from a non-lawyer), what recourse, if any, would states and voters have if the U.S.P.S. simply refused to deliver mail-in ballots? In United States Postal Service et al. v. Konan (1, 2), the U.S. Supreme Court ruled that the USPS is "immune to suits for money damages for failure to deliver the mail even when postal employees intentionally and maliciously refuse to deliver the mail" (Wikipedia). What other legal remedies would be available?
[1] https://www.supremecourt.gov/opinions/25pdf/24-351_7648.pdf
[2] https://en.wikipedia.org/wiki/United_States_Postal_Service_v._Konan
The key phrase in your quote is “for money damages”. If I understand correctly, you could still sue for an injunction under the Administrative Procedure Act section 702.
They could decide to use FedEx Ex. The Postal Service is losing large sums of money. It is stealing from its retirees to pay its bills. It has reached the limi5 of its borrowing power. It is pricing itself out if business
The Postao Service gets paid fir deli bring mail. Elections mean volume. Thus rule is bad for business. Therefore one would be justified in concluding that one of the aims of this order is to deztro6 the Postao Se4vice.
Well, delaying ruling for even a few weeks will increase the chaos and confusion at the local level. They have elections to run.
Thanks for clarifying this 'more complicated than it appears' litigation.
Part of the game here seems to be how to play for time. For plaintiffs, it would seem that the longer the case takes to get to any merits ruling the better. North Carolina requires military and overseas ballots be "available and distributed" by Sep. 4, 2026, 36 days from today(1). Nine other states require mail-in ballots to be available by 17-19 Sep.(2), 49-51 days from today, with many others coming not far behind. Section 3 of the EO would require the use of new barcodes and logos on mail-in ballots. Some states, notably California, Nevada and Washington, are 100% mail-in voting states. Even now it would seem to be too late to try to add barcodes and logos to the tens of millions of ballots from these 3 states alone. Delay gives the courts a way out, not by ruling on the merits quickly, but by saying it is too close to the election to change the rules (more on this below).
For the government, it's harder to say how time works for them. On the one hand, the sooner they can implement the EO, the more likely they are to be able to argue states and voters have time to comply. On the other, the lack of a decision on the merits might give them an opening to simply implement the EO insisting they have the power to do so and saying the courts' lack of decision falls in their favor. This would not be the first case in which they claim that, failing a final ruling by the Supreme Court, they believe they are correct and will ultimately prevail. It would not be surprising to see Trump, Blanche, et al., implement the EO at the last minute and dare the courts to stop them.
Purcell who? Never heard of him? - For the Supreme Court, the delay may give the right-wing weasels a way out. Thomas and Alito would almost certainly decide in favor of Trump, maybe even citing the recent discovery in New Jersey of hundreds of ineligible voters being registered and some voting as justification for the Executive Branch to meddle in, sorry, insure the integrity of, the election. Kagan, Sotomayor and Jackson would just as certainly rule against Trump, with the law and Constitution on their side. The weasels*, Roberts, Gorsuch, Kavanaugh and Barrett seem most likely to hide behind procedure and simply delay a merits ruling until after the November elections. They can say, "Who us? We didn't decide anything."
(1) https://www.ncsbe.gov/voting/upcoming-election
(2) https://electioninnovation.org/research/dates-for-2026-early-in-person-and-mail-voting/#mailvoting
* with apologies to weasels
quite apart from bar codes etc., in WA, OR, CO, not being able to mail ballots to someone not on some questionable list would mean that the state has to decide NOW whether to invest bazillions in voting machines and set up places to put them. I suspect it is already too late to do that.
How is the state supposed to know WHERE people not on the notoriously inaccurate SAFE list even live? Are they supposed to guess that places where people of color, the vast majority of newly naturalized citizens, tend to live? Nothing like forcing a state to make decisions based on race. So "not ripe" seems kind of, well, dumb.
I can not find fault with Professor Vladeck's analysis of the issues now presented by any these cases before the Supreme Court. But I am afraid I am not as sanguine as he as to likely outcomes, and the consequences of the Court granting a mere stay pending appeal of the lower courts' decisions. Nor I am prepared to give even what little credit he would appear willing to concede to the Solicitor General's arguments as to standing, in the crucial Boston cases, and their readiness for review. What the Post Office and "the Government" generally, are asking for, is for the Court not to decide these cases on the merits, but for it to stay the trial courts' decisions pending appeal,. so that they can go ahead and implement the provisions required by the President's Executive Order in time to control the administration of the 2026 midterm elections, come hell or high water. And let the Court, the Devil, and the Administrative Procedures Act take the hindmost. And that is what will happen if the Court but just grants the stay pending appeal that they are seeking.
The Solicitor General's argument comes down to this. "We all know you are not going to reach the merits of this case before sometime next year. We know you are not even going to reach the merits of our procedural and jurisdictional objections to the hearing of these cases. If you do not grant us a stay pending appeal, we won't be able to go ahead with our plans to administer this fall's elections. That would be bad, because we are good. So you should go ahead and let us do what we want, and decide later whether it was right to do so. And maybe then order that the cases be dismissed as moot.
These are equity cases was injunctions are an equitable form of relief. I would make the point that "the Government" does not come to them with clean hands. And I would challenge the presumption of regularity on which the Solicitor General's arguments rest by noting, as Professor Vladeck points out, that the President's Order basically presumes to override the requirements of the Administrative Procedures Act with respect to rule making most crucially in the case of the Postal Service, and tells it exactly what to do and by when. The outcome of the rule making proceeding is a foregone conclusion, for appearing before Congress Postmaster General Stearns has stated that he will indeed execute the President's orders to the Postal Service by adopting rules implementing its provisions, and then that he will indeed order the Service to refuse to handle ballots that are not on lists provided by state officials, and approved by Homeland Security. By his own admission, the Postal Service is already late in executing the President's order, and is facing a deadline to do so that does not permit observance of the notice and comment provisions of the APA, nor allow time as required by law, for review by the Postal Service Board of Governors.
This being so, the Solicitor General's arguments can not be adjudged to have been presented in good faith. He knows better. The rule making proceeding is a farce, the outcome of which is has been dictated by the President. And it is now or never. If this gambit to take over the elections is allowed to proceed, and is sprung on the states two or three weeks from now, they will not have time to comply, even if they wish to, let alone protest. As I believe was noted by the Appeals Court, even if these cases were dismissed, and the Government were left to its own devices, it would not be reasonably possible to implement the provisions of this Order in time to cover the upcoming midterms. That was one of the reasons cited by the Plaintiffs in support of their requests for injunctive relief. And stepping even further back, had they world enough and time, it is hard to see how they could ever fully comply with the requirements of this regime which the President seeks to impose. For states do not now maintain central repositories of voter registration roles. Such records are kept by county and local government offices. They are constantly in flux as people move, come of age, get married, die, et cetera, et cetera. And what the President is insisting is that the States do is to constantly conduct rolling censuses of certified registered voters within their jurisdictions. At what point in time would such lists be finalized for purposes of one election ??
Such a regime would prove impossible to administer. But maybe that is not the point. It is not intended as such. It is intended to cause a train wreck. However that may be, what is abundantly clear is that it is beyond the President's authority to compel the implementation of such a massive new regime of centralized elections administrtation by Homeland Security and the US Postal Service.
And we are one per curiam order on the shadow docket away from it. "Oops. We goofed."
Note that the district court, in denying the Government's motion for stay of the injunction, stated: "As a threshold matter, the court’s injunction is clearly limited to Plaintiff States alone. Accordingly, nothing in the court’s order prevents Defendant agencies
from endeavoring to implement the EO with respect to non-Plaintiff States."
So the injunction does not legitimately provide an excuse for the Postal Service to delay issuance of a final Rule pursuant to Sec. 3 of the Executive Order past the July 28 due date.
Note taken. The position Sauer has been forced to take has turned him in to a flim flam merchant. The Government has severelyy compromised his arguments by waiting too long to do this and by overriding the APA and statutory review requirement in order to comply with the order. How can he then argue with a straight face that these same requirements make the suit premature as a matter of law ?? With deadlines coming up all over the place ?
Lots of political pressure being put on the Court in this instance. All Democratic states against. Most Republican states for. And Sauer saying "You need to let us do this because there is no time for you decide whether yiu should".
"Armed with Tuesday’s D.C. Circuit ruling (which came after the Justice Department’s filing), the states argue quite aggressively that there’s a real tension between the First Circuit’s denial of a stay and the D.C. Circuit’s affirmance of the dismissal in DSCC. Again, there isn’t, but you have to dig fairly deep to see why."
"Digging fairly deep" is not what the Court majority and its "lowers" focus on. If/when anyone refers to the current Court majority with any references to "being practical" or "living in the real world," remember me, please.
Please tell me what is the governmental harm that the majority wants to prevent in this opinion? What do the justices imagine?