Judge Blocks Parts of Trump’s Order to Limit Mail-In Voting
It all goes back to the Constitution.
U.S. District Judge Indira Talwani in Massachusetts blocked parts of President Donald Trump’s executive order “Ensuring Citizenship Verification and Integrity in Federal Elections.”
Talwani declared Sections 2 and 3 legally void, while the defendants other than Trump are enjoined “from implementing or giving effect to those sections with respect to the November election or earlier federal elections.
The judge stated that the section is “merely precatory.”
The decision is similar to yesterday’s ruling regarding proof of citizenship to register to vote: States determine voting eligibility, and Congress can make or alter state election laws.
The Constitution does not grant these powers to the Executive Branch:
The Constitution does not grant the President any specific powers over elections. Broadly, the Constitution vests the President with “executive Power” and commands him to “take Care that the Laws be faithfully executed.” U.S. CONST. art. II, §§ 1, 3. The President “plays no direct role in the process” of appointing electors, “nor does he have authority to control the state officials who do.” Trump v. United States, 603 U.S. 593, 627 (2024). As the Supreme Court has observed, “the President’s power to see that the laws are faithfully executed refutes the idea that he is to be a lawmaker.” Medellín v. Texas, 552 U.S. 491, 526–27 (2008) (quoting Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 587 (1952)).
Section 2: Establishment and Transmission of State Citizenship Lists and Prioritization of Investigations and Prosecutions Related to Election Fraud.
This section requires the U.S. Citizenship and Immigration Services (USCIS) to make a Confirmed Citizen List for each state. But the Constitution gives the State control over elections. The state maintains “registered voter databases, subject to general structural requirements imposed by Congress.” The Help America Vote Act (HAVA) provides states only with “a minimum set of requirements for categories of information included on voter registration lists.”
HAVA also allows the states “to determine the appropriate method for creating, storing, and maintaining their State’s voter registration list as well as to establish procedures for registering to vote.” It does not contain any information telling a state who should be on the voter lists. Talwani also pointed out that the lists would be incomplete because USCIS would have to rely on certain federal records, including those that do not track name changes.
“Further, neither in HAVA nor any other federal statute does Congress authorize the federal government to create their own voting database,” wrote Talwani. “Instead, Congress, consistent with the Constitution, has left that authority to the States alone.”
When it comes to enforcement, Talwani mentioned that the EO and the briefings do not cite any statute that gives the president authority to investigate or prosecute any voting-related crime.
Section 3: United States Postal Service Rulemaking on Mail-In and Absentee Ballots
Talwani ruled this section unconstitutional because it violates the “States’ and Congress’s authority to regulate elections and Congress’s power to regulate USPS.”
The EO requires the USPS to compile its own list and stop “the transmission of a mail-in ballot completed by anyone not on USPS’s lists.” But, again, the states determine voter eligibility.
Congress has also not given the USPS any authority to control mail-in voting.
Talwani ruled that the EO’s timing put USPS in too much of a bind to propose the rule through bureaucratic channels:
If seeking to make a “change in the nature of postal services which will generally affect service on a nationwide or substantially nationwide basis,” USPS must submit a proposal to the Postal Regulatory Commission (“PRC”), for an advisory opinion. 39 U.S.C. § 3661(b). The PRC then has 90 days to issue its advisory opinion. 39 C.F.R. § 3020.102(a). The EO requires USPS to issue an NPRM by May 30, 2026, and then a final rule by July 29, 2026. This timeframe provides no allowance for Congress’ mandated procedure regarding USPS rulemaking. 39 U.S.C. § 3661(b). Therefore, USPS lacks authority to promulgate regulations on voting and the EO’s directive that USPS do so constitutes ultra vires executive action.
Section 5: Enforcement
Section 5 directs the DOJ and other agencies “with relevant authority” to deter and address noncompliance with the law. The president told state and local offices that they should preserve all records and materials for five years.
It all goes back to Congress, which put a 22-month retention period for election materials.
This is where we get into “merely precatory.” The EO says the offices should preserve records or materials.
Talwani said the word should is precatory, not mandatory, “because it ‘neither requires nor prohibits any action on the part of the states or any other party.’”
Therefore, Section 5 imposes no requirements on state and local offices.
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Comments
Another robed retard. Ignore.
So the States have full authority on registering people to vote.
Yet the federal motor voter law requures all states to allow voter registration by means of checking a box when getting a driver’s license.
The “verification” of eligibility is 100% based on trust. There’s a check box that asks if you are eligible to vote.
The federal govt doesn’t verify that at all. And, worse, States are prohibited from verifying by an opinion in federal court.
We have 55+ million legally present foreign nationals that can all get drivers licenses and any of them can register to vote by merely checking both of these boxes when tgey get their license. An additional 30-50+ million (who really knows?) illegal aliens that are allowed to get drivers licenses in all blue states and most R states that can do the same.
Once registered, absolutely nothing can stop them from actually voting.
And now, two federal judges, in the past two days, are saying that the motor voter law doesn’t allow the federal government to verify eligibility, and that the post office must deliver ballots to everyone requesting with zero verification if they are eligible to vote.
Our legal system is a pathetic joke.
These federal judges should be burned at the stake.
Not full authority but it takes a significant act of Congress to override them. State’s rights was a big deal to the Constitution’s framers. Keep in mind their biggest gripe was lack of representation surrounding a distant aloof king that treated them as castoffs.
The burning should be filmed and mandatory viewing for law school students to graduate.
Subject to federal law, yes. (As regard to congressional elections, that is.)
That’s right, it doesn’t. Congress should fix that.
It also does not prohibit the federal government either
That’s very much not how it works. A government can’t do anything it hasn’t specifically been authorized to do. Particularly in the case of the federal government, where even the legislature is limited in what it can authorize the government to do. In this case that’s not an issue; Congress could easily authorize this, but it hasn’t.
What the president does control is the United States Postal service. No mail in ballots, period.
Not sure that’s fair to senior citizens, but at least it will keep the dead and senile ones from voting democrap/communist.
Which federal statute gives the president such authority?
18 USC 611: Voting by Aliens
This federal law prohibits all non-citizens from voting in any federal election.
The President can issue EO’s to various executive branch bureaucracies, including the post office, to enforce this.
Specifically, in the EO actually signed by Trump, the Post Office is prohibited from delivering ballots to any person that they are unable to verify is eligible to vote.
That verification can only cone from State governments.
Seems very straightforward. Only a D appointed federal judge, or a sycophant of such political activists, could invent some sophistry to pretend to justify an adverse ruling.
Nothing in that statute, or in any other, gives the president the authority to issue such an order to the post office.
Then how is that law ever going to get enforced given the fact that the post office handles the ballots?
The President has a Constitutional Duty to enforce that law.
An EO to the post office is his only means of doing so.
That is very much not how anything works. The president has no independent authority to act. Congress must authorize him, and without such authority he is powerless. It’s not his job to ensure that aliens don’t vote. That’s the states’ job, and the fact that they’re doing a piss-poor job of it doesn’t make it his job to fix. Congress can make laws to force them to do their job better, and/or it can authorize the president to do it. But it hasn’t done so.
which federal statute prohibits or limits the president?
That’s not how it works. You have to point to the statute that authorizes him. Without one he has no authority.
Milhouse is right. The 10th amendment “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” So Congress has to pass a law giving the president authority to do that. And then the States would go to court and it would end up with the Supreme Court deciding if that was even something Congress could do a bill about or if it required a constitutional amendment. What hopefully it does do is shine a light on some practices that should not be happening and cause people to notice and vote accordingly. I am probably over optimistic about that part.
Trump can declare all necessary election integrity measures by executive order and it will be upheld by SCOTUS if he just cites as his authority the Article IV section 4 guarantee that each state shall have a republican form of government.
Note that all elections are run by the states, and that Alexander Hamilton’s definition of republicanism (from the constitutional debates in NYC) is all about honest elections:
“The true principle of a republic,” said Hamilton, “is that the people shall choose who shall govern them. Representation is imperfect [republicanism is imperfect] in proportion as the current of popular favor is checked.”
The most obvious way to “check the current popular favor” is to have insecure election systems. Any election procedure, like mail-in balloting, that is either intentionally or unnecessarily vulnerable to vote fraud and election fraud, undermines the republican guarantee and is unconstitutional on that grounds.
The guarantee is to be enforced by “the United States,” which in the first instance refers to the three branches of the federal government, meaning that each of the three federal branches has its own independent and express power, and its own duty, to uphold this guarantee.
The president needs no legislation to act here. He can proceed on his own authority under the republican guarantee clause.
If a state employs election processes that are either intentionally or unnecessarily vulnerable to election stealing, it to that extent has an un-republican state government (the expressly forbidden object of the guarantee clause), and all three federal branches have their own independent power and duty to rectify this unconstitutional condition.
No, that has nothing to do with the fairness of election procedures. Probably.
But it would be interesting to see a president invoke it, simply because SCOTUS decided about 180 years ago that that clause is not justiciable. It refused to rule on whether Rhode Island’s blatantly undemocratic election laws violated the republican guarantee clause, because that was a matter for the political branches to sort out and the courts should stay out of it. So I wonder what SCOTUS would do if, rather than people suing the president to make him restore democracy to a state, the president decided to do it himself and the state sued to stop him. Had James Polk sided with the rebels and decided to send troops into Rhode Island to support them, would SCOTUS have stopped him?
Look up Baker v. Carr (1962). Justice Brennan wrote for the majority that none of the “political question problems” that blocked earlier guarantee clause cases from being justiciable were present in that case.
There was, however, a different problem, which Brennan also chose to call a political question problem: that the proposed republican principle in Baker (equal voting power) cannot be considered a requirement of republicanism because it is violated by the U.S. Senate, which is part of the only sure model of a republican form of government we have, the government created by the U.S. Constitution.
If only some different proposed requirement of republicanism were to appear that was both “discoverable” (had a solid claim to be what the founders meant by republicanism) and which provides a “manageable standard of adjudication,” then the republican guarantee would be justiciable, said Brennan, but he didn’t think it at all likely that any such standard could ever appear.
After all, he was writing 170 years after the ratification of the Constitution. If no such criterion of what the founders meant by republicanism had been discovered by now, what are the chances one would crop up at this late date?
But Brennan was breaking one of the fundamental rules of jurisprudence. He took up the guarantee clause question without it having been raised by either of the parties at suit. Hence the issue had not been briefed via the adversary process, where there is full incentive for the best arguments on both sides to be investigated and put forward.
If the matter had been briefed, the pro-guarantee clause side would probably have informed the Court that a most documented and discoverable definition of republicanism was in fact fully in hand: the definition that Alexander Hamilton provided at the constitutional debates.
Brennan was simply unaware that this definition existed, when in historical context it had been the center of attention at the most crucial moment.
The nation had been told that they were being given a republican form of government (Ben Franklin’s famous answer: “a republic, if you can keep it”).
And that Constitution contained a guarantee that each state would have a republican form of government.
Obviously people wanted to know what the authors meant by this, and Hamilton gave the most concise and “manageable” definition possible, almost as if he had adjudication in mind:
“Representation is imperfect in proportion as the current of popular favor is checked.”
If the guarantee is to be enforced, such imperfections can be neither intentional, nor unnecessary. That is the obvious manageable standard of adjudication.
Brennan didn’t do all bad. His analysis of the various types of political question problems that can afflict guarantee clause cases, and what it takes to overcome them, is quite good.
He just didn’t realize that the one remaining such block to justiciability HAD been overcome. Hamilton DID leave us the necessary “discoverable and manageable standard of adjudication.”
All Trump needs to do is show up at SCOTUS and show it to them. Its discoverability and manageability is unquestionable. They will have to accept it.
The great shame on the Court is that they have actually known about this for 60 years, and never addressed it. Hamilton’s definition of republicanism was discovered by SCOTUS, and was held to be discoverable by SCOTUS, in two different cases within a decade of Baker v. Carr.
It’s in McCulloch, and it’s in Thornton. Those cases just don’t have anything to do with the republican guarantee.
So the Court has known that there is a discoverable definition of republicanism. They just never applied it to their guarantee clause jurisprudence, and given how Brennan took it upon himself to address that subject earlier, only to completely bollix up the most important provision in the entire Constitution (the only guarantee in the entire Constitution, the one that defends our system of government itself), they absolutely should have found an opportunity to take it upon themselves to address the subject again, and undo Brennan’s radically wrong presumption of non-justiciability.
You have a lot of energy Milhouse. You should help me publicize this.
Baker was not about the republican guarantee clause but about the equal protection clause, which didn’t exist in the 1840s.
Hamilton’s definition is useless for two reasons: first, it was just his own opinion, not a generally accepted definition, and second, you’re expanding it far beyond what it says. All it says is that governments are elected; it says nothing about who can vote, how elections are conducted, etc. On the contrary, Hamilton’s definition would fit direct democracy even better; he says a republic is one where the people must get whatever they want, so any restraint on their will, which is precisely what the constitution is for, makes it less republican. If you took his definition seriously then you would require proportional representation, and a single chamber legislature with absolute power. I think that’s the DSA’s program. It’s certainly nothing like what the founders produced. But that’s obviously not what Hamilton meant, because he was writing in support of the constitution, not against it. So all he meant was that the government should be elected, and that’s it. Which makes it useless here.
Jesus Milhouse, do you always have to be so dumb? Honest elections of governors/representatives are NOT about unbounded majority rule. The governors in question are filling offices of limited, enumerated, separated, checked and balanced powers, designed to keep government from trampling liberty.
You let your hatred of democracy keep you from protecting honest elections, of all things, which is one of only two requirements for always being able to throw off, by the simple mechanism of voting him out of office, any tyrant who ever manages to get through the limited, enumerated, separated, checked and balanced powers.
We need 1) a citizenry that by a strong majority believes in liberty, and 2) honest elections. That’s it! That is our ultimate protection for liberty, and without both of those two things, all of the other protections for liberty are worthless. THESE are the most important.
That is why Hamilton focused on election integrity. He knew this was the ultimate and only backstop for the protection of liberty.
Of course the full concept of republicanism is much broader. It refers to the sovereignty of the people, starting with each person’s individual sovereignty: his natural rights to life, liberty, property, and the pursuit of happiness.
Then there are all the mechanisms of limited, enumerated, separated, checked and balanced powers designed to keep government from trampling liberty.
Then lastly, but MOST IMPORTANTLY, there is popular sovereignty: majority rule. As long as we have a liberty loving populace, honest elections will keep us from ever being enslaved.
To not get that the ability to throw off a tyrant by the simple expedient of voting him out of office is our ultimate protection for liberty, that’s pretty damned dumb of you Milhouse.
You really don’t get our system of government and how it HAS to work. You are almost as bad as a fricking Democrat!
They are attacking both requirements for popular sovereignty to protect liberty. They are our party of election stealing, and they work furiously to create a liberty-hating populace, both by bringing in liberty haters en masse through illegal immigration (communists and orthodox Muslims, who Obama also let in en masse via legal immigration), and by using their control of all levels of our education system to indoctrinate America’s own children into communism, transgenderism, and hatred of American liberty and prosperity.
The most fundamental protection for liberty is an honest and liberty loving popular sovereignty. Democrats are razing ours to the ground on both fronts, and you revolt at the idea of protecting it because of a perverted conflation of majority rule in the choice of governors with unlimited democracy.
Get a clue. If you can’t pitch in then get the hell out of the way.
Dont really want a federal database of anything. voters, guns, fingerprints, DNA. I realize that train left years ago.
we already have a Federal data base of all that you mention except voters, so let’s include them as well
Because three wrongs make a left?
ooooh, i know. lets have Grok cross reference the voter database against the gun database and the fingerprint and DNA database and take all your guns away. Show me the man l, ill show you the crime.
No, thank you.
I find it interesting this particular Judge wants to see explicit Constitutional Authority for the Executive to be permitted to act instead of reliance on ‘take care’ clause. Maybe we should use this same Federal Judge to send up cases where Congress has acted without explicit Constitutional Authority and relied on their own implied powers under ‘necessary and proper’ and/or the tortured misuse Commerce clause. Either the branches of the Federal government must rely only upon explicit Constitutional Authority to act or they can also use implicit authority granted to each branch …but its gotta be the same for all three to maintain logical consistency and importantly to retain the basic trust/respect from the broad public to sustain our society.
Golly gee whiz it would be a real.shame if the USPS forgot to order fuel for vehicles and their fleet ‘ran out of gas’ from Oct 1 to Nov 15. Same for changes in workplace that caused a ‘strike’ over the same period.
No, she wants to see statutory authority.
You’re skipping right past the question of; why does she wish to see ‘statutory authority’?
B/C she claims the broad Constitutional Authority granted to the Executive within ‘take care’ clause doesn’t allow the Executive to undertake steps to ensure that ballots conveyed by USPS are restricted to US Citizens casting ballots in an election for Federal offices.
IMO the actions of a State(s) which fail to make good faith efforts to ensure non Citizens ain’t casting ballots for Federal offices (which is illegal) doesn’t require any person or entity to become an unwilling participant in the conspiracy to enable vote fraud/election crimes.
U.S. District Judge Indira Talwani in Massachusetts
Obama wasn’t a natural born citizen, either.
Yes, he was, and so is she. She’s a terrible judge, but she’s just as American as anyone else. She’s as American as Trump. You are a fucking racist for thinking otherwise.
Does this order comply with the Supreme Court’s ruling on nationwide injunctions?
I guess some judges really love vote fraud.