Ballots that were mailed or deposited on Election Day 2024 lie on a table at the Cass County Courthouse in North Dakota, November 18, 2024. (Photo by Jeff Beach/North Dakota Monitor)
Federal agencies say they have not yet taken steps to implement President Donald Trump’s executive order restricting mail-in voting as the Justice Department pursues a Democrat-led lawsuit against it.
Department of Justice slow Friday evening submitted documents Asking a federal judge to dismiss the lawsuit and not block the preliminary injunction for non-compliance. The documents were the Trump administration’s first attempt to defend the order in court.
The Order from March 31st directs the creation of state citizenship rolls and limits how mail-in ballots can be sent, instructions for Democrats and election experts they called unconstitutional and illegal. This comes as Trump seized on the specter of non-citizen voting – an extremely occasional phenomenon – and demanded radical restrictions on voting.
In its Friday filing, the Justice Department sought to convince Judge Carl J. Nichols of the U.S. District Court in the District of Columbia that filing the complaint was premature.
“If and when the executive branch takes some action to enforce the executive order,” then a lawsuit can be filed, Stephen Pezzi, senior litigator in the Justice Department’s Civil Division, wrote in a court filing.
Nichols set a hearing for May 14.
No action was taken, officials tell the court
The Justice Department’s argument relies on statements from key federal officials that the agencies affected by the order – the Department of Homeland Security, the Social Security Administration and the U.S. Postal Service – are still figuring out how to implement Trump’s directive. In statements filed in court Friday, officials from all three agencies say final decisions have not yet been made.
“Because the Postal Service is still in the process of determining how to implement the executive order, we have not yet published a proposed rule or made any final decisions on the content of the proposed rule,” Steven Monteith, the Postal Service’s chief customer and marketing officer, he wrote.
The executive order directs the postmaster general, who runs the Postal Service, to propose a rule that would prevent states from mailing ballots, except for voters on lists provided by the state to the Postal Service.
The order also directs the Department of Homeland Security to compile lists of voting-age U.S. citizens in each state with the support of the Social Security Administration. Democrats say the Trump administration is creating unauthorized national voter rolls, even though the U.S. Constitution gives states responsibility for conducting federal elections.
Michael Mayhew, deputy director of the Directorate of Immigration Records and Identification Services, U.S. Citizenship and Immigration Services, – wrote in the statement that the agency “has not yet started preparing” state citizenship lists. USCIS is a subsidiary of Homeland Security.
At the Social Security Administration, Jessica Burns MacBride, director of program policy and data exchange, he wrote that the agency has not yet made final decisions “on its role” in implementing the order.
Focus on postal services
Opponents of the order are particularly keen on the Postal Service’s response because it is an independent corporation overseen by the Board of Governors, not the White House.
Democrats and postal law experts say Trump has no power order the postmaster to take any action. The Board of Governors hires and fires the postmaster general, and board members serve seven-year terms, which helps protect them from political pressure.
Last month, 37 Democratic U.S. senators signed the letter to Postmaster General David Steiner and the Board of Governors, urging the Postal Service not to comply with the executive order. Senators noted that the president has no authority to regulate federal elections or the Postal Service.
“Like the President, the Postal Service does not have the authority to regulate how people vote in federal elections or who is eligible to vote by mail in such elections,” the letter reads.
The Postal Service is the lead defendant in a lawsuit filed by Democratic groups and congressional leaders.
The Justice Department, representing the Postal Service, omitted questions about the president’s powers in Friday’s lawsuit. He called arguments about Trump’s authority over the Postal Service “an abstract legal issue” that cannot be resolved unless the agency takes action.
Still, Monteith seemed to nod to the Postal Service’s concerns about the legality of the order, while avoiding specifics.
“I am aware that deliberations are currently underway within the Postal Service regarding the implementation of the Order,” Monteith wrote, adding that the deliberations include “legal considerations” regarding the order.
Unitary executive theory
The executive order has faced at least five lawsuits, including a challenge brought by a coalition of Democratic state attorneys general led by Rob Bonta of California. The Justice Department has not yet filed court papers defending the order in this case.
For their part, Republican attorneys general — led by Catherine Hanaway of Missouri — are defending the executive order. Their position, if adopted by the courts, would give Trump complete control over the Postal Service.
In May 1 application to courtGOP attorneys general argue that those challenging the order are unlikely to be able to show that Trump cannot order the Postal Service to propose the rule. They argue that federal law does not expressly prohibit the president from ordering the postmaster general to come up with rules regarding absentee ballots — and if he does, it is unconstitutional.
“The Constitution vests all executive power in the President,” the Republican Coalition says, articulating a view commonly called the unitary executive theory: the view that Congress cannot constitutionally create agencies that exist beyond White House control.
Republican states also involved include Alabama, Florida, Indiana, Kansas, Louisiana, Montana, Nebraska, Oklahoma, South Carolina, South Dakota and Texas.
Democrats and many constitutional law experts reject the theory of a unitary executive, though it has gained support among Trump’s Republicans as the White House seeks greater control over independent agencies.
If the U.S. Supreme Court ultimately agrees to Trump’s efforts to control the Postal Service and other independent agencies, it would represent a “massive” change in the way the federal government operates, James Campbell Jr., a Washington-area lawyer who consults on postal law, said last month.
“You’re basically talking about redesigning the U.S. government,” Campbell said.
