The Unconstitutionality of the Trump Administration’s New Executive Order on Elections

The Trump administration has issued a new executive order on federal elections, one that directs the U.S. Postal Service (USPS) for the first time in U.S. history to regulate whether and how states may send absentee and mail-in ballots through the mail. It requires the USPS, an independent agency with a bipartisan Board of Governors, to determine who is eligible to vote by mail and to track their ballots. This attempt to enlist the USPS to police absentee and mail-in voting is unconstitutional. The Democratic Senatorial Campaign Committee, the League of Women Voters, and other organizations have already sued. The order is likely to be blocked for many of the reasons several courts blocked provisions of an earlier executive order that added voter eligibility requirements to federal forms prescribed by Congress. In short, the states and, to a lesser extent, Congress, have exclusive authority over regulating federal elections. The President has none.

Issued late in the day on March 31, 2026, the new executive order, titled Ensuring Citizenship Verification and Integrity in Federal Elections, includes two other main provisions. The first requires the Secretary of Homeland Security to provide to each state lists of eligible voters who are state residents and instructs the Department of Justice to prioritize criminal prosecutions of state and local officials “who issue Federal ballots to individuals not eligible to vote in a Federal election.” The second provides that federal funding should be withheld from states that refuse to comply with the mandates in the order. Under the Elections Clause of the Constitution, the executive branch has no authority over state voter eligibility determinations. It therefore cannot require states to consider any lists pulled together by federal agencies and cannot lawfully take any action against a state, whether criminally or administratively, for refusing to comply with the order’s other purported requirements. But these provisions seek to coerce states into complying with a scheme the executive branch has no authority to impose.

The Legal Framework: The Constitution Gives States and Congress—Not the President—Authority Over Federal Elections

The Trump administration’s latest attempt to police voter eligibility through unilateral executive action follows its failed attempt last year in Executive Order 14,248 (March 25, 2025), Preserving and Protecting the Integrity of American Elections. As relevant to the new executive order, the courts uniformly blocked the main operative provisions as beyond the president’s power under the Constitution because they lacked statutory authority. 

The provisions in the 2025 executive order would have added proof of citizenship and eligibility requirements to the standardized national voter registration form prescribed in the National Voter Registration Act (NVRA), 52 U.S.C. §§ 20501-20511. The order also would have required federal agencies to “assess citizenship” of individuals who apply for public assistance before providing them a voter registration form pursuant to the NVRA. And the order purported to add “documentary proof of U.S. citizenship” and “proof of eligibility to vote” to the statutorily prescribed “post card” voter registration and absentee ballot application that is sent to servicemembers and voters abroad, under the Uniformed and Overseas Citizens Absentee Voting Act, 52 U.S.C. § 20301-20311.

In a comprehensive decision, the federal district court for the District of Columbia held that the President has no authority to supplement the carefully limited contents Congress specified on the standardized federal voter registration form. As the court pointed out, the Elections Clause of the Constitution gives states primary authority to determine the time, place and manner of choosing members of Congress, and gives Congress authority to make or alter such regulations. The Constitution conspicuously omits any independent authority in the President. Moreover, although it gives Congress the authority to alter regulations relating to time, place and manner, it gives Congress no authority over the states to determine voter qualifications and eligibility. Based on this constitutional framework, the court rejected the other provisions as well, because the president had no authority to alter or supplement the requirements specified in statute. The court entered final judgment on all claims the day the administration issued its new executive order.

The overarching constitutional problem with the March 2025 order is the same problem that will doom the key provisions of the new order. The Constitution conspicuously avoids giving the president any unilateral authority over the elections process. State authority to determine who represents the states in congress, and who is elected as president, is the foundation for the federal constitutional system. That is why the Constitution strikes a balance between the primacy of the states and the authority of Congress to prescribe laws relating to the time, place, and manner of elections. As the D.C. federal court recounted, the balance was the result of a compromise to satisfy those who, one one side, feared federal control over voter eligibility, and who, on the other, feared that exclusive state control of the time, place, and manner of elections could empower rogue states to undermine the federal government by refusing to hold elections. 

Indeed, the Constitution does not give even Congress the authority over eligibility rules, except through the provisions in the Bill of Rights that guarantee the right to vote. As Justice Scalia explained in Arizona v. Inter Tribal Council of Arizona (2013),

[p]rescribing voting qualifications . . . “forms no part of the power to be conferred upon the national government” by the Elections Clause, which is “expressly restricted to the regulation of the times, the places, and the manner of elections.” The Federalist No. 60, at 371 (A. Hamilton); see also id., No. 52, at 326 (J. Madison). This allocation of authority sprang from the Framers’ aversion to concentrated power. A Congress empowered to regulate the qualifications of its own electorate, Madison warned, could “by degrees subvert the Constitution.” 2 Records of the Federal Convention of 1787, p. 250 (M. Farrand rev. 1966). 

The most conservative members of the Court, such as Justice Thomas, have taken an even stronger view regarding Congress’s lack of authority under the Elections Clause to legislate in areas that impinge on states’ exclusive power to determine voter eligibility. Writing in the same case: 

Congress has no role in setting voter qualifications, or determining whether they are satisfied, aside from the powers conferred by the Fourteenth, Fifteenth, Nineteenth, Twenty-Fourth, and Twenty-Sixth Amendments, which are not at issue here. This power is instead expressly reposed in the States.

Whatever the scope of congressional authority to prescribe citizenship eligibility rules for state elections, despite these constitutional limitations, the limitations make it clear that the executive branch enjoys no unilateral authority whatsoever.

The Legal Problems with the Latest Administration Executive Order

The recent executive order, Ensuring Citizenship Verification, would enlist the Social Security Administration (SSA) and the Department of Homeland Security (DHS) in creating “state citizenship lists” that would be sent to the states (Section 2). It would require the USPS to regulate the mailing of state absentee ballots (Section 3). And it includes implementation and enforcement provisions (Sections 4 and 5) that call on the Attorney General and the Secretary of Homeland Security to enforce federal laws against state election officials and to manage the citizenship list required in Section 2.

Section 2. Establishment and Transmission of State Citizenship Lists and Prioritization of Investigations and Prosecutions Related to Election Fraud

Section 2(a) directs DHS’s U.S. Citizenship and Immigration Service, working with the SSA, “to compile and transmit to the chief election official of each State a list of individuals confirmed to be United States citizens who will be above the age of 18 at the time of an upcoming Federal election and who maintain a residence in the subject State.” The list must be updated and given to the states at least 60 days before each election. The federal government cannot require states to use the list. But the same section (in 2(b)) threatens state and local officials with criminal prosecution. It provides that “the Attorney General shall prioritize the investigation and, as appropriate, the prosecution of State and local officials or any others involved in the administration of Federal elections who issue Federal ballots to individuals not eligible to vote in a Federal election,” citing several federal criminal laws. However baseless the threat—since, to the extent any of the laws might conceivably apply, they require criminal intent—the purpose is clear. The executive order seeks to coerce state and local officials into acceding to overreach by the executive branch.

The section includes a qualifier that the program must comply with the Privacy Act, 5 U.S.C. § 552a. The Privacy Act prohibits the disclosure of information about U.S. citizens by federal agencies, unless the disclosure falls into one of several exceptions specified in the Act. Implementing the March 2025 executive order, which required agencies to make citizenship-related databases available to the states on request, the administration relied on the Privacy Act’s “routine use” exception. Under 5 U.S.C. § 552a(a)(7), the exception applies “with respect to the disclosure of a record, the use of such record for a purpose which is compatible with the purpose for which it was collected.” The agency must publish a notice in the Federal Register at least 30 days before disclosure and must provide an opportunity for notice and comment. Affected individuals, civil liberties organizations, or even states could challenge the notifications in federal court under the Administrative Procedure Act. It is difficult to see how compiling such a massive voter registration list is “compatible” with the reason the data was initially collected, which had nothing to do with voting. After all, the executive branch has no role in state election eligibility determinations. Nor have the states asked for this list. And the low incidence of unlawful voting by non-citizens would undermine the argument that it serves a legitimate purpose. It is inconceivable that federal agencies will be able to administer such a massive list reliably, particularly since the order requires the list to be based on a voter’s current residence.

Section 3: United States Postal Service Rulemaking on Mail-In and Absentee Ballots

Section 3 directs the USPS to initiate a rulemaking within 60 days to (a) require state ballot envelopes to contain standard markings and a bar code, (b) specify that states “may” notify USPS if the state intends to allow mail-in ballots to be transmitted by USPS and whether it intends to submit to USPS a list of voters eligible to vote and to whom the state intends to send a mail-in ballot; (c) provide that USPS will not allow mailing of ballots to individuals not included on a “State-specific list” administered by USPS; (d) create a “State-specific list” (also referred to as the “Mail-In and Absentee Participation List”), including procedures for individuals to enroll in the program and procedures for states to issue mail-in ballots to such individuals with bar codes to track the ballots; and (e) promulgate procedures for states to provide “suggested modifications or amendments” to the lists before a federal election. The USPS must issue the regulations within 120 days.

These provisions are unconstitutional for the same reasons the courts invalidated the March 2025 executive order. The executive branch possesses no constitutional or statutory authority to create a new federal absentee ballot eligibility scheme. The provisions affect voter eligibility, which is within the exclusive province of the states. They also affect state election procedure, which is within the shared authority of the states and Congress. These provisions would effectively invalidate state election laws regulating absentee ballots, imposing an unauthorized additional voting registration scheme and altering deadlines for mail-in voting. The 60-day list-submission deadline would effectively nullify the many state laws that allow voters to request absentee ballots within days of an election.

The order invokes the NVRA and the Help America Vote Act (HAVA) of 2002 as statutory support, but those laws authorize specific federal agencies (primarily the EAC) to perform specific, limited functions. The NVRA assigns USPS a limited, ministerial role in voter registration—making mail-in voter registration forms available at post offices. And as to HAVA, it created the EAC as an independent, bipartisan commission to oversee the federal role in working with the states in election administration. Neither law gives the executive branch statutory authority to implement a mail-in voter registration scheme run by USPS.

The order also relies on the authority of the USPS over the mails, but the USPS lacks any authority to carry out the mandates in the order. The USPS’s basic statutory authority is “to provide for the collection, handling, transportation, delivery, forwarding, returning, and holding of mail, and for the disposition of undeliverable mail.” 39 U.S.C. § 404(a)(1). The purpose of the USPS is to establish and carry out a universal mail service to unite the country (39 U.S.C. § 101(a)). The USPS’s authority over “mailability” is about the physical characteristics and content of mail (e.g., hazardous materials, obscenity, fraud), not about conditioning mail service on the identity or eligibility of the sender or recipient in relation to election regulation. Accordingly, Section 3 of the order lacks any statutory basis.

Even if the USPS’s authority were more on point, the administration cannot rely on vague statutory authorities concerning the mails to impose an unprecedented voter registration scheme. Whether viewed through the lens of the “major questions doctrine” or ordinary statutory construction, that conclusion is basic common sense. The Supreme Court’s recent decision in Learning Resources, Inc. v. Trump is instructive. The Court held that non-specific language in the International Emergency Economic Powers Act (IEEPA) did not authorize the administration’s worldwide tariff regime. There, as here, the Constitution gave the authority the president claimed (to impose tariffs) to Congress alone. And there, as here, the administration sought to use the claimed statutory authority in an unprecedented way, with dramatic implications for the nation. The plurality opinion invoking the major questions doctrine observed that “[w]e have long expressed ‘reluctan[ce] to read into ambiguous statutory text’ extraordinary delegations of Congress’s powers,” quoting one of several cases establishing the doctrine That part of the opinion reasoned that the considerations underlying the major questions doctrine “apply with particular force where . . . the delegation involves [a] core congressional power.” There, it was the power of the purse. Here, it is an even more fundamental power, the power over state elections for federal office. The opinion also looked to other laws relating to the powers claimed by the President. As with tariffs, Congress has carefully defined federal statutory requirements relating to state elections. It has created independent implementing organizations, such as the EAC, subject to numerous requirements that ensure the agencies remain nonpartisan and responsive to the states. Finally, in evaluating whether ambiguous language in IEEPA ceded such vast taxing power to the President, the opinion found it “telling that in IEEPA’s ‘half century of existence,’ no President has invoked the statute to impose any tariffs—let alone tariffs of this magnitude and scope.” Likewise here, no President has ever used USPS’s broad organic authority over the mails to regulate voting by mail. While a majority did not join in calling this a “doctrine,” demanding special legislative clarity, they agreed with the essential statutory analysis.

Even if the USPS had the statutory authority to implement such a scheme, at least under current law a president cannot dictate how the USPS carries out its statutory responsibilities. The USPS is governed by a 11-member Board of Governors. Like other agencies that Congress seeks to insulate from direct political control, such as the EAC, the USPS board is bipartisan. The board members serve fixed, staggered terms and can only be removed “for cause” — not at the President’s will. (That is, unless the Supreme Court in Trump v. Slaughter overturns Humphrey’s Executor, and rules that such provisions are an unconstitutional constraint on presidential power under Article II.) This structure exists precisely so that day-to-day operations and policy decisions are made by the Board and the Postmaster General, who is selected by the board, not the White House. 

These provisions, if implemented, would cause chaos for mail-in and absentee voting. They could disenfranchise many eligible voters through errors and through imposing an onerous voting registration requirement. Even if such a program were lawful, which it is not, the USPS does not have the resources or institutional competence to administer such a program. 

Sections 4 and 5: Implementation and Enforcement

The implementation and enforcement provisions of the executive order require DHS to create the “infrastructure” for the citizenship list required in Section 2(a). The provisions also require the Attorney General to (1) enforce compliance with the federal criminal statutes referenced in the order and to “provide guidance to election officials” and others, including private companies involved in the “printing, production, shipment, or distribution of ballots;” and (2) “take all lawful steps, along with other agencies, to deter and address noncompliance with Federal law, including withholding Federal funds from noncompliant States and localities where such withholding is authorized by law.” 

While the provisions instructing the Attorney General to enforce federal law and pursue withholding federal funds from a “noncompliant state” may not be facially unlawful (because they are limited to actions authorized by law), they raise significant concerns. The risk is that the Department of Justice will invoke these provisions to threaten states and private actors, coercing them to follow federal mandates that are legally dubious. It is unusual to direct the Attorney General to “provide guidance” on federal criminal laws. While the Department may comment on its enforcement efforts and policies, it generally does not suggest that specific types of conduct might violate federal law. It would be especially unusual for the Department to “provide guidance” to a private company that its conduct violates federal law. The Department does not issue threats, it brings prosecutions. But these provisions seem to represent another area in which the President seeks to undermine the independence of the Department and use it as a political tool.

* * *

As a concluding observation, this executive order is further evidence of the significant departure from good-faith legal review within the Office of the White House Counsel, the Office of Legal Counsel in the Department of Justice, and the general counsels’ offices at the relevant agencies, to the extent any of them were consulted. By statute, OLC is supposed to review all executive orders for “form and legality.” Parts of the order are so clearly unlawful, either OLC is being cut out or OLC is operating under significant political constraint. Aside from the legal problems, there are clues throughout the text that it was not reviewed according to the usual rigorous OLC process. Consider this phrase in the policy section of the order: “The Federal Government has an unavoidable duty under Article II of the Constitution of the United States to enforce Federal law.” Had OLC reviewed the order, “Federal Government” would have been replaced with “the President.” Article II establishes the office of the President, who, under the theory advanced by the Trump administration, is vested with all the power of the executive branch. Indeed, that theory would be required for the view that the President can dictate how an independent agency such as the USPS must act. 

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