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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