The ruling was seven to two.
This evening, the Supreme Court, in a 7-2 decision, declined to stay the lower court’s injunction blocking the Postal Service’s policy tied to Donald Trump’s executive order aimed at limiting mail-in ballots. I have previously discussed the First Circuit’s ruling in this matter and argued that the order represents an overt challenge to federalism and the separation of powers.
As is common with so-called “shadow docket” rulings, the majority’s opinion provides little in the way of reasoning. It does, however, assert that “[t]he Government is unlikely to succeed on the merits of its challenge to the District Court’s preliminary injunction [against the USPS policy].” This suggests they view Trump’s policy as probably illegal, likely for reasons similar to those laid out by the district court and the First Circuit.
In a concurring view, Justice Brett Kavanaugh indicates that there is “at least a fair prospect that the final rule falls within the Postal Service’s statutory authority,” yet maintains that the district court was right to block it under the Administrative Procedure Act “because state and local election officials do not have sufficient time to reasonably implement the rule before the elections.”
In a dissent joined by Justice Thomas, Justice Samuel Alito argues that the policy falls within the USPS’s remit, but bases this on statutes that nowhere mention altering mail-in ballot rules, and instead authorize the USPS to set rules for the collection and delivery of mail. Alito largely overlooks the sizable federalism and separation-of-powers concerns arising from merging those powers. Additionally, as the district court and the First Circuit noted, bending this language into a sweeping power to override state mail-in ballot rules raises serious “major questions doctrine” concerns.
As the District Court observed, Congress must speak clearly when entrusting a “highly consequential power” to the executive, and the authority to rewrite state election rules is plainly highly consequential. Moreover, the statutes granting USPS authority do not clearly grant such power; indeed, they do not even mention voting rules.
To put it differently, deriving a power to regulate mail-in voting from a power to establish rules necessary for mail delivery is a textbook instance of what Justice Antonin Scalia famously called “hid[ing] elephants in mouseholes,” warning courts against assuming Congress did so. The Trump administration contends there is a truly enormous elephant hidden in a tiny mousehole here. The Court was correct to reject that position.
