The Supreme Court is letting Trump run federal elections from the post office.
The unsigned opinion in Trump v. California, released Monday and lifting a federal injunction against the President’s March directive to the Postal Service, runs ten pages. The reasoning, on its own terms, is straightforward. The directive, the Court wrote, “orders the Postal Service to initiate the process of proposing a rule” and “imposes no legal requirements on the States (or, for that matter, on anyone outside the Executive Branch).” A rulemaking initiation is not final agency action. The state attorneys general who sued have not shown concrete injury. Federal courts resolve cases, not internal agency deliberations. That is the steel-man, and it tracks the case-or-controversy requirement the way a respectable administrative-law opinion should.
The audit begins where the steel-man ends. The directive is not a routine bureaucratic rulemaking. It is an instruction from the President himself, to an agency he controls, to begin constructing a federal infrastructure for tracking mail-in ballots — an infrastructure the states did not request, did not authorize, and have affirmatively moved to block in court. The rule the Postal Service actually published describes itself as “a manifest” assembled from state-supplied data, applies only to outbound ballots, and resists the suggestion that any ballot will be deemed “nonmailable.” That is the rule’s surface content. The substantive move is not the rule; it is the directive ordering the rule’s construction. The President has publicly framed the project as fixing mail-in voting. The rulemaking will produce a rule that alters USPS handling of federal-election ballots in the sixty days before the November election. The unsigned opinion’s “imposes no legal requirements” line is true on the day the opinion issues. It will be false on the day any ballot is handled under the new rule. The Administration first asked the Justices for help on July 27. By the time any plaintiff has standing to challenge the final rule, ballots will already have moved.
The unsigned opinion also parts company with the Court’s own recent major-questions logic. West Virginia v. EPA, 142 S. Ct. 2587 (2022), held that an agency may not regulate on a question of “vast economic and political significance” without clear congressional authorization. A Presidential directive to the Postal Service to construct a federal ballot-tracking infrastructure touches the most politically significant question in any democracy: who gets to count the votes, and under what rules.
The Elections Clause, U.S. Const. art. I, §4, cl. 1, vests the “Times, Places and Manner” of federal elections in state legislatures, subject only to Congress’s own lawmaking power. The Electors Clause gives the states the authority to appoint electors “in such Manner as the Legislature thereof may direct.” The President of the United States appears in neither. The unsigned opinion engages neither. It does not need to, on its own ripeness theory. It needed to, on the major-questions theory the Court has said it follows.
Justice Sotomayor, joined by Justice Kagan, warned in dissent that the Court’s holding “merely postpones” the reckoning. Justice Jackson, in a separate twenty-three-page solo, pronounced the enterprise “Kafkaesque” and declared that “the President does not have any legal authority to require that elections be conducted in accordance with his preferences, or to withhold delivery of mail-in ballots that are not formatted consistent with the President’s wishes.” The dissents’ substantive point survives the procedural posture. The unsigned opinion’s ripeness answer is correct as a matter of administrative law. The case it punts on is not an ordinary administrative-law case. It is a case about whether the Executive may construct, in real time, the apparatus through which a federal election is administered.