Trump v. Mail Ballots

Our most recent book is The Comeback: The 2024 Elections and American Politics. The second Trump administration has been full of ominous developments.

Rick Hasen:

President Trump has signed a second executive order purporting to regulate federal elections (especially mail ballots). His first executive order from March 2025 has already been enjoined in key parts for violating the Constitution. As Judge Kollar-Kotelly wrote in one of the opinions, “Put simply, our Constitution does not allow the President to impose unilateral changes to federal election procedures.” This one is likely to fare no better before the courts.

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The basic idea of the actual EO that the President issued on Tuesday is this: DHS is going to craft a list of citizens above the age of 18. States will get that list. If a state does not submit a list (presumably to be compared to the federal list [UPDATE: See here on the relationship between state and federal lists]), and give the post office the citizen-approved list of voters (and do other things like add bar codes to mailed ballots), USPS will not deliver the mail. (USPS would have to craft regulations to implement this.)

To put this in plain terms: the order would use the USPS, which is not under the direct control of the President, to interfere with a state’s lawful transmission of ballots. If the state does not comply with these rules, federal law would purport to interfere with a state’s conduct of its own elections.

The President does not have the authority to do this. He cites to two federal voting statutes and the part of the Constitution that says that the United States shall guarantee to each state a Republican form of government. These sources do not give him authority to force states to change their election rules.

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Finally, the timing here makes this virtually impossible to implement in time for November’s elections. This calls for rulemaking and DHS compiling these lists. These will take time. There will be inaccuracies or worse, and there will be lawsuits, many lawsuits. It seems highly unlikely any of this could be implemented for 2026, even if it were not blocked by courts.

It raises the question if this is just more election denialism theater. That’s what it looks like, rather than a serious effort to craft a law that could be implemented and withstand constitutional scrutiny.

Draft Executive Order to Take Over Elections

Our most recent book is The Comeback: The 2024 Elections and American Politics. The second Trump administration has been full of ominous developments

Zachary Roth at Democracy Docket:

President Donald Trump suggested Saturday that his military strike against Iran may have been driven in part by claims that the country interfered in the last two U.S. presidential elections.

In response, democracy advocates warned that a dangerous and unconstitutional plan is coming into view, in which Trump uses an Iranian war to claim a national emergency that allows him to take control of the midterm elections.

On Truth Social, Trump linked to an article by a far-right news site, and also posted the text of the article’s headline:

“Iran tried to interfere in 2020, 2024 elections to stop Trump, and now faces renewed war with United States.”

The article claims that “Iranian intelligence sought to undermine Trump’s reelection bid in 2020 through a variety of election influence efforts.”

Matt Cohen, Jim Saksa at Democracy Docket:

A draft executive order to declare a national emergency to allow President Donald Trump to take unprecedented control over voting is being circulated by anti-voting activists who have said they are in coordination with the White House.

A version of the order, dated April 12, 2025, has been circulating among anti-voting groups, and some progressive groups, since last year.

Peter Ticktin, a Trump ally and a leader of the effort, provided the April 12 version to Democracy Docket. It’s titled: “Establishing Security, Integrity, and Transparency for United States Elections with Protections Against Foreign Interference.”

A social media account affiliated with the Maryland chapter of the Election Integrity Network — the anti-voting coalition led by conservative lawyer and Trump ally Cleta Mitchell — originally posted the April 12 version last spring.

The Washington Post reported Thursday that it had obtained an early version of the order, but it did not publish it.

The Post additionally referred to what may be a more recent version of the order, which it said “claims China interfered in the 2020 election.” The version provided by Ticktin to Democracy Docket does not mention China or 2020.

Lawyers and legal experts have explicitly said that an order giving the president the power to take control of elections would be blatantly unconstitutional.

Trump said Friday he has “never heard about it.”

 READ THE DRAFT ORDER

Trump v. the Rule of Law

Our new book is The Comeback: The 2024 Elections and American Politics. The first year of the second Trump administration has been full of ominous developments, such as the extrajudicial killing of people allegedly running drugs on the high seas.

Charlie Savage at NYT:

Jack Goldsmith, a Harvard Law School professor and former top Justice Department lawyer in the George W. Bush administration, said Mr. Trump’s actions demonstrated an indifference to law that threatened to hollow it out.

“Nixon tried to keep his criminality secret, and the Bush administration tried to keep the torture secret, and that secrecy acknowledged the norm that these things were wrong,” Professor Goldsmith said. “Trump, as he often does when he is breaking law or norms, is acting publicly and without shame or unease. This is a very successful way to destroy the efficacy of law and norms.”

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Even if the Justice Department memo that somehow blesses the killings lacks much actual legal analysis and even if a future administration rescinds it, its existence essentially forecloses any prospect of future prosecutions. It is hard to prove someone intentionally committed a crime when the Justice Department itself said at the time that the action was lawful.

Two decades ago, Professor Goldsmith took over the Office of Legal Counsel and withdrew memos issued under the Bush administration that blessed the C.I.A.’s torture program. Reflecting on that period in a memoir, he called such memos get-out-of-jail-free cards.

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The administration has found a two-part hack to the system in which executive branch lawyers are supposed to independently determine the legal boundaries within which policymakers may act.

The first is that Mr. Trump has told executive branch lawyers that they may not question any legal judgment that he — or Attorney General Pam Bondi, subject to his “supervision and control” — already decided. “The president and the attorney general’s opinions on questions of law are controlling on all employees in the conduct of their official duties,” Mr. Trump declared in a February executive order.

The second is that Mr. Trump has been declaring that as president, he has determined that the factual and legal scenarios exist that are necessary for him to exercise various extraordinary powers.

The two tactics combined create a gigantic loophole. Mr. Trump is able to dictate his own factual and legal realities, and executive branch lawyers who want to keep their jobs must treat them as settled. The result is that Mr. Trump can order agencies to take actions to which independent-minded lawyers might have raised legal objections.

In August, Trump said:" I have the right to do anything I want to do. I'm the president of the United States."

In February, he posted an apocryphal quotation from Napoleon: "He who saves his Country does not violate any Law."

In 2019, he said: "Then I have an Article 2, where I have the right to do whatever I want as President."

Hybrid Regime?

Our new book is The Comeback: The 2024 Elections and American Politics. The second Trump administration  has been full of ominous developments.

Jennifer Rubin:

Whether we are a hybrid regime or a full police state is debatable, but after the events of last week, our democracy and the rule of law appear to be in tatters. Consider that in a single week, Trump:

• Forced out a U.S. attorney to put in an utterly unqualified flunky who overrode the recommendation of career prosecutors and barely obtained a patently absurd criminal indictment (a classic vindictive prosecution) against former FBI director James Comey based on a “false statement.” (That statement is unspecified and, in all likelihood, not false. The government almost certainly cannot prove the requisite mens rea.)
• Demanded a private company fire former Justice Department deputy attorney general Lisa Monaco.
• Fired another U.S. attorney for abiding by a court order.
• Declared his intent to prosecute on nebulous grounds a private foundation that supports liberal causes.
• Issued a blatantly unconstitutional executive decree (based on a specious accusation that liberals are responsible for political violence) that “threatens criminal and civil investigations against nonprofits based on their point of view…. a thinly veiled ruse to crack down on its political opponents.”
• Demanded (with no legal justification whatsoever) that Defense Secretary Pete Hegseth deploy military force in the entirely peaceful city of Portland, Oregon. (The long-threatened deployment to Memphis is planned for this week.)
• Unilaterally enacted more taxes (tariffs), this time on prescription drugs (at a 100% rate), heavy trucks, and furniture.
• Gleefully celebrated yet another gift of unchecked executive power from the MAGA partisan majority on the Supreme Court (which again acted by shadow docket decree, without full briefing or a complete opinion.)
• Imperiously threatened to undertake more unilateral firings and dismantle more federal government operations in the event Democrats do not provide votes to keep the government open.

Trump's Plan for Unfettered Power

Our 2020 book is titled Divided We Stand: The 2020 Elections and American Politics.  Among other things, it discusses the state of the parties. The state of the GOP is not good. Trump and his minions falsely claimed that he won the election, and have kept repeating the Big Lie.  And we now know how close he came to subverting the Constitution.

Jonathan Swan, Charlie Savage and Maggie Haberman at NYT:

Donald J. Trump and his allies are planning a sweeping expansion of presidential power over the machinery of government if voters return him to the White House in 2025, reshaping the structure of the executive branch to concentrate far greater authority directly in his hands.

Their plans to centralize more power in the Oval Office stretch far beyond the former president’s recent remarks that he would order a criminal investigation into his political rival, President Biden, signaling his intent to end the post-Watergate norm of Justice Department independence from White House political control.

Mr. Trump and his associates have a broader goal: to alter the balance of power by increasing the president’s authority over every part of the federal government that now operates, by either law or tradition, with any measure of independence from political interference by the White House, according to a review of his campaign policy proposals and interviews with people close to him.

Mr. Trump intends to bring independent agencies — like the Federal Communications Commission, which makes and enforces rules for television and internet companies, and the Federal Trade Commission, which enforces various antitrust and other consumer protection rules against businesses — under direct presidential control.

He wants to revive the practice of “impounding” funds, refusing to spend money Congress has appropriated for programs a president doesn’t like — a tactic that lawmakers banned under President Richard Nixon.

He intends to strip employment protections from tens of thousands of career civil servants, making it easier to replace them if they are deemed obstacles to his agenda. And he plans to scour the intelligence agencies, the State Department and the defense bureaucracies to remove officials he has vilified as “the sick political class that hates our country.”

What Trump Would Do

Our 2020 book is titled Divided We Stand: The 2020 Elections and American Politics.  Among other things, it discusses the state of the parties. The state of the GOP is not good. Trump and his minions falsely claimed that he won the election, and have kept repeating the Big Lie.  And we now know how close he came to subverting the Constitution.

Sophia Cai at Politico writes that Trump's agenda would represent an unprecedented power grab by the executive branch:

•  He wants to give the president the authority to hire and fire federal workers at will — not a new idea, but now part of a broad effort to "clean out" investigators and officials he sees as disloyal or who have questioned his conduct.
• Education: As part of a sweeping plan for the federal government to exert more control of education, Trump wants to fire "radical left" officials who accredit universities, reward schools that abolish tenure for teachers, eliminate many college administrators and remove diversity, equity, and inclusion programs.
• Law enforcement/intelligence: Trump — who's facing a range of criminal charges — said after he was indicted in New York that he wanted to "defund" the Justice Department and the FBI. That might have been an exaggeration, but Trump does want his brand of politics to reshape the Justice Department and U.S. intelligence.
• He's vowing to get rid of "Marxist prosecutors " and create an auditing system to monitor U.S. intelligence agencies “to ensure they are not spying on our citizens."
• Gender issues: He wants DOJ to investigate Big Pharma and the big hospital networks to determine whether they have "deliberately covered up the long-term side-effects of 'sex transitions.'" He also wants to boot hospitals or providers from Medicaid and Medicare if they offer gender-affirming care.
• Crime: Trump wants to use the U.S. military to go after drug cartels and street crime.
• Housing: He wants to eliminate an Obama-era rule that requires cities and local governments to address residential segregation and poverty in order to receive federal housing grants.
• Cities/housing: His “quantum leap to revolutionize the American standard of living” includes baby bonuses to create a new baby boom and the design of 10 new “Freedom Cities” in the U.S.
• Guns: Trump wants national concealed carry reciprocity, which would allow people with a concealed carry permit in their home state to have that privilege in any other state.

Captain EO

In Defying the Odds, we discuss Trump's approach to governing.  The update  -- just published --includes a chapter on the 2018 midterms.

Noah Bierman at LAT:

The Times reviewed 101 executive orders Trump has signed since inauguration day, and interviewed experts, advocates and administration officials about their effects. Many were geared toward favored political constituencies, including veterans, blue-collar workers and evangelical Christians. Few moved policy significantly; generally the orders created committees or task forces, demanded reports or pressed for enforcement of existing laws.

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Many orders seek action from Cabinet secretaries, something Trump could easily accomplish with a phone call.

“You don’t really need an executive order for a lot of this stuff, but it makes for a good show,” said Elaine Kamarck, a Clinton administration veteran who is the director of the Center for Effective Public Management at the Brookings Institution.

“He even gives out pens, which is really sort of ridiculous,” she added, noting that past presidents reserved that tradition for signing momentous laws like the Civil Rights Act.