A court case involving President Donald Trump’s efforts to sabotage voting by mail reached the Supreme Court on Monday. The executive order at the heart of Trump v. California is one of many attempts by Trump and his Republican Party to make it harder for voters to mail their ballots and to potentially invalidate lawfully cast ballots that are submitted by mail. 

The executive order is particularly significant, because, with it, Trump is claiming the unilateral authority to change US election policy in ways that, at least according to the Constitution, can only be done by Congress or by state governments. Trump and many of his Republican allies have previously urged other institutions, such as Congress or the Supreme Court, to shift US election rules to benefit the GOP. But now, he’s claiming the power to rewrite those rules himself.

The March executive order at issue in California claims to be an effort to prevent noncitizens from voting in federal elections. But several provisions of the order seem designed to intimidate state and local election officials by threatening them with illegal prosecutions. Another provision would forbid the US Postal Service (USPS) from delivering many mailed ballots, which would have political benefits for Trump. 

Democrats have been more likely to vote by mail than Republicans since at least the Covid-era 2020 election, and this trend has continued post pandemic. So, any election policy that suppresses mailed ballots will harm Democrats and help Republicans.

In late June, a federal district court determined that several provisions of Trump’s executive order exceed his authority and must be struck down. 

The issue before the Supreme Court in California, however, does not concern whether the executive order is legal or not. Instead, Trump’s lawyers claim that the district court acted prematurely by invalidating the executive order before it was fully implemented and before several federal agencies have an opportunity to flesh out how its provisions will actually work. Those lawyers, in other words, want to buy time for federal agencies to implement parts of the order before it can be challenged in court.

This is actually a plausible argument, as Trump’s brief to the justices makes several significant concessions that, if embraced by the justices, would significantly weaken Trump’s order at least for the time being. As Trump’s lawyers now characterize his order, it doesn’t do much of anything until several federal agencies take additional steps.

Still, the stakes in this case, which arises on the Court’s “shadow docket,” a mix of emergency motions and other matters that the justices often decide very quickly, are quite high. Even if the justices do hold Trump to the promises his lawyers made in their brief and issue an opinion explicitly stating that the order currently imposes no obligations on anyone, that will still set up a future reckoning on whether Trump’s efforts to suppress voting by mail are valid. Eventually, those agencies will act, and several of them are likely to do so before the midterms, and, then, the question of whether Trump can fundamentally alter how US elections are conducted will have to be decided by the courts.

Trump’s executive order, if fully implemented, could potentially change the results of federal elections and place Republicans who did not win in office. It also matters because Trump claims the power to decide how states conduct federal elections, despite no statute that authorizes his order — thus, potentially expanding his own powers and the power of all future presidents.

So, what does Trump’s executive order do?

Trump v. California primarily concerns two sections of Trump’s executive order.

Section 2 of the order includes a thinly veiled threat that state and local election officials will face prosecution if they allow voters who aren’t pre-approved by the Trump administration to vote by mail. 

On the surface, the first part of this section seems innocuous. It requires the Department of Homeland Security “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.” During a lower court proceeding in California, Trump’s Justice Department conceded that any such list would “necessarily be incomplete.” But the federal government’s decision to compile a partial list of eligible voters does not actually prevent anyone from voting.

The problem with Section 2 is that Trump’s call for DHS to compile this list is coupled with a statement 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.” 

Thus, as Judge Indira Talwani determined in her order blocking this provision, Section 2 “implicitly threatens enforcement…against election officials who furnish ballots to voters excluded” from the Trump administration’s incomplete lists. While the order does not explicitly state that an election official who mails a ballot to a lawful voter whose name does not appear on the Trump administration’s list will be prosecuted, Trump’s decision to couple his demand that the list be created with a threat of prosecution sends a clear message to election officials that they allow voters who are not on the list to vote at their own risk.

Moreover, as Talwani wrote in her opinion, one major reason why the federal government cannot compile an accurate list of all eligible voters is because the federal government’s records “do not necessarily track name changes (such as when a woman changes her name at marriage).” Women are more likely to vote for Democrats than men.

Additionally, Section 3 orders USPS to come up with new rules that require states to provide the federal government with a list of all voters who will receive a mailed ballot “no fewer than 60 days before the election,” and it forbids the post office from delivering ballots from voters whose names do not appear on the list. This section also outlines requirements for a specific kind of envelope for mail voting with certain design features — which, at the very least, creates a problem for states that have already purchased envelopes that do not comply with these new design requirements.

The Constitution gives states and Congress, not the president, the power to decide how federal elections are conducted

The Constitution provides that states, and not the federal government, get to decide who is eligible to vote in a federal election. Article I of the Constitution, for example, provides that voters who possess “the Qualifications requisite for Electors of the most numerous Branch of the State Legislature” may vote for members of the US House. And the 17th Amendment uses similar language to describe who may vote for US senators.

Thus, because each state gets to determine who may vote in its state legislative races, states also have the power to determine who can vote for members of Congress.

The Constitution’s language governing presidential elections, meanwhile, is even more explicit that states — and not Trump — get to decide who is an eligible voter. That language provides that “each State shall appoint, in such Manner as the Legislature thereof may direct,” its presidential electors.

Thus, as Talwani concluded, no federal official, including the president, has the power to determine that only “United States citizens who will be above the age of 18” may vote in a particular federal election; only states have the authority to decide who may vote for members of Congress or the president. And the federal government certainly does not have the power to compile a list of eligible voters and threaten prosecution of any state official who provides a ballot to someone not on that list.

A separate provision of the Constitution lets states determine the “Times, Places and Manner of holding Elections for Senators and Representatives,” while also permitting Congress to “make or alter such Regulations.” Thus, while the federal government cannot determine who is eligible to vote in federal elections (except through constitutional provisions such as the 15th or 19th Amendments), Congress could conceivably pass a law regulating voting by mail.

But Trump is not Congress. And, according to Judge Talwani, “no law enacted by Congress delegates authority to control mail-in voting to USPS.”

Trump’s lawyers defend his executive order by claiming that it doesn’t do anything…yet

In their brief to the justices, Trump’s Justice Department did not actually argue that the executive order is legal (although they will likely do so in a later stage of this lawsuit). Instead, they argued that Judge Talwani’s decision blocking the executive order was “premature.” 

The thrust of DOJ’s argument is that, while the executive order announces several new election-related policies, it does not actually implement any of those policies. The executive order tasks DHS with compiling the incomplete list of eligible voters, it tasks DOJ with prosecuting state officials, and it tasks the Postal Service with coming up with the specific rules governing mailed ballots.

The Constitution does not permit anyone to file a lawsuit challenging a federal policy unless they can show they were injured in some way by that policy. Trump’s lawyers argue that, until the new election policies are fully implemented, none of the California plaintiffs can know whether they will be harmed by these policies or not.

It’s a plausible argument, but largely because DOJ’s brief makes a number of concessions that strip the executive order of any real vitality, at least until it is fully implemented by federal agencies.

The brief insisted, for example, that Section 2 should not be read to authorize prosecutions against state officials who send a ballot to someone who is not on Trump’s approved list of voters. “The Order does not deem it a crime, or even evidence of a crime, for States not to use the Lists when determining voter eligibility, and it does not direct the Attorney General to bring charges on such a theory,” it read.

Similarly, it denied that any of the executive order’s new policies governing envelopes and pre-approved voters who may vote by mail must actually be implemented, at least before the postal service issues its own rules regarding Trump’s new policies. According to the brief, “the Order does not ‘direct various changes to the voting-by-mail process,’” it merely “directs the President’s Executive Branch subordinates at the Postal Service to begin a deliberative policymaking process that may ultimately include some changes.”

While at least some of these concessions take liberties with the language of the executive order, they do potentially give the justices a third option to consider before they decide the California case. The justices could leave Talwani’s decision in full effect, or they could allow Trump to implement his new restrictions on voting. But they could also block Talwani’s order while simultaneously pointing to DOJ’s concessions and indicating that they expect Trump to honor those concessions.

If the justices take this third option, that would mean that the order would impose no obligations on the states for the time being and would similarly impose no new restrictions on voters until the agencies act. Litigation over the executive order would pause, and it would resume once the order is implemented by further agency action.

The Justice Department’s concessions in this case are fairly extraordinary, and they suggest that even Trump’s own legal team recognizes that it will be easier to persuade the courts to delay a reckoning over the executive order than it will be to convince them that the order is lawful. It remains to be seen, however, whether this Supreme Court will actually enforce the Constitution in this case — and whether they will do so right away or at some future date.

There was an unintentionally revealing moment in acting Attorney General Todd Blanche’s confirmation hearing last week. After Sen. John Kennedy (R-LA) asked Blanche whether he and President Donald Trump are friends, the leader of the United States Department of Justice replied, “I’m his lawyer,” before correcting himself and saying he “was his lawyer.”

Blanche previously defended Trump in three criminal cases brought while the president was out of office, but he is emphatically not supposed to be Trump’s lawyer right now. As acting attorney general — Blanche currently leads the DOJ because the attorney general’s job is vacant and Blanche is the Senate-confirmed deputy attorney general (DAG) — Blanche’s client is the United States, not the person who happens to occupy the White House. 

But it’s easy to see why he misspoke: Blanche has largely acted as Trump’s hammer since he was confirmed as the DOJ’s No. 2 official, overseeing numerous prosecutions of Trump’s perceived enemies. Now Trump wants to promote him to the DOJ’s top job — a sign of Trump’s confidence in his former criminal defense lawyer turned personal enforcer.

It’s unusual for a president to put his own defense lawyer in such a powerful position — indeed, it’s unusual for a president to have a criminal defense lawyer at all. But Trump has a long string of attorneys who’ve defended him and his companies against an equally long string of criminal allegations ranging from tax fraud, to falsifying business records, to illegally taking classified documents, to charges arising from his failed attempt to steal the 2020 presidential election. 

And he’s put at least five of those criminal defense lawyers in top federal jobs. 

Trump’s decision to turn much of his criminal legal team into powerful government officials matters for two big reasons. The first is that two members of that team, Blanche and Solicitor General John Sauer, are leaders within the Justice Department. Next to the military, there is no more fearsome government institution than the DOJ, which has the power to arrest people and try them for federal crimes. 

The DOJ is supposed to exercise this authority with restraint — and often with restraints imposed by the Constitution itself — but Blanche has used the Justice Department’s power against Trump’s political enemies who appear to have committed no crime and removed constraints on Trump and his Justice Department, all while Sauer has worked consistently to convince the Supreme Court to remove other constraints on Trump.

Meanwhile, three of Trump’s former criminal lawyers, Emil Bove, Justin Smith, and Matthew Schwartz, now have lifetime appointments as US Court of Appeals judges, placing them one rung on the judicial ladder down from the Supreme Court. The judiciary, of course, is the branch of government that is supposed to prevent the president from breaking the law, so every Trump loyalist appointed to this branch weakens the remaining legal constraints on Trump and his administration.

Trump, of course, isn’t the only president to place close confidants in the Justice Department or the federal bench. President John F. Kennedy famously named his brother attorney general. President Lyndon B. Johnson appointed Abe Fortas, who represented him in a 1948 election dispute, to the Supreme Court in 1965.

But Trump’s decision to place someone willing to pursue his personal vendettas in charge of the Justice Department is, at the very least, a break with post-Watergate norms established to prevent the DOJ from becoming a political weapon. And Fortas, who resigned in disgrace after fewer than four years on the bench, is more of a cautionary tale than a model of good governance.

Although the current Supreme Court is dominated by conservative Republicans, some of these justices do break with Trump on questions that divide the Republican Party — such as whether Trump should unilaterally impose high tariffs on many nations. But if Trump gets to turn his personal cronies into justices, that could change quickly. A judiciary controlled by MAGA loyalists means that all remaining checks on Trump’s authority could end. Many of his former-lawyers-turned-appointees are already working to make an unchecked Trump administration a reality.

How are Trump’s former personal lawyers already reshaping American legal norms?

Smith, who worked on the Trump v. United States immunity case, was confirmed last month. And Schwartz, who worked on the false documents case that led to Trump’s conviction, joined the bench last week. So there’s not much to say about these two men’s record in federal office — yet.

But Blanche, Bove, and Sauer have all displayed ruthless cunning in their efforts to advance Trump and his causes.

Blanche has been DAG since March 2025, a role that oversees the federal government’s criminal prosecutions and its 93 regional US attorneys’ offices. He’s led the entire Justice Department since April, after former Attorney General Pam Bondi — another of Trump’s former personal lawyers — left office.

So Blanche oversaw several dubious federal prosecutions targeting people Trump perceives as enemies, including criminal proceedings targeting former FBI Director James Comey and current New York Attorney General Letitia James. There’s also evidence that Blanche has played an unusually direct role in the Justice Department’s decision to bring meritless charges against prominent Democrats.

In May 2025, for example, Newark Mayor Ras Baraka, a Democrat, showed up at an ICE detention facility in his New Jersey city and asked to tour it. He was briefly let inside the gate, where he was confronted by about a dozen law enforcement officers and asked to leave, which he did.

But then one of these officers received a phone call. A video, later submitted to a federal court, shows the officer turning to his colleagues after the call and announcing, “We are arresting the mayor right now, per the deputy attorney general of the United States.” That deputy attorney general, of course, was Blanche. (In a September court filing, DOJ confirmed that officers arrested Baraka “after consulting with the Deputy Attorney General.”)

Yet, despite Blanche’s apparent decision to personally order Baraka’s arrest, the DAG forgot to check whether Baraka had actually done something that could support criminal charges. The mayor was only charged with misdemeanor trespassing, and those charges were dismissed two weeks later. At the court hearing formally dropping these charges, a federal magistrate judge admonished prosecutors for “using the immense power of the government to pursue weak cases or to make examples without sufficient cause.”

Blanche also unsuccessfully attempted to establish Trump’s $1.776 billion “anti-weaponization fund,” which would have been used to distribute money to Trump’s allies — including, potentially, Trump supporters who participated in the January 6 attack on the US Capitol. Although the fund appears dead after it received bipartisan pushback in Congress, a DOJ press release announcing the fund said it was “established” by the attorney general, a role performed by Blanche, and that the fund would be administered by five people chosen by Blanche.

Before Trump took office, Bove was Blanche’s law partner. Shortly before Bove joined the bench, he briefly served as principal associate deputy attorney general — essentially the DAG’s top deputy, which meant that Bove was Blanche’s right-hand man. In that role, he was often described as Trump’s “enforcer.” 

Bove spent only about half a year as Blanche’s lieutenant, but he managed to spark a mini-revolt in one of the Justice Department’s most prestigious offices during his short tenure. After Bove ordered the DOJ to dismiss corruption charges against then-New York City Mayor Eric Adams “without prejudice,” a maneuver that would allow the charges to be reinstated if Adams did not cooperate with the Trump administration’s immigration crackdown, seven federal prosecutors resigned rather than comply with Bove’s order. 

One was Danielle Sassoon, a former law clerk to Justice Antonin Scalia, a conservative icon. Another, Hagan Scotten, wrote in his resignation letter to Bove that “I expect you will eventually find someone who is enough of a fool, or enough of a coward, to file your motion. But it was never going to be me.” Scotten clerked for Republican Chief Justice John Roberts and for future Republican Justice Brett Kavanaugh.

Meanwhile, a whistleblower complaint by another former DOJ lawyer claims that Bove said, in a meeting about a court decision halting some deportations, “that D.O.J. would need to consider telling the courts ‘fuck you’ and ignore any such order.”

Trump appointed Bove to the US Court of Appeals for the Third Circuit last September. Federal appeals courts typically spend months deciding cases, so his tenure on the Third Circuit has thus far been less eventful than his time at the DOJ. But there are early signs that he remains loyal to Trump even after moving into an independent branch of government. Bove attended a Trump rally in December, a highly unusual move for judges who are supposed to remain nonpartisan. And the background image on his iPhone is reportedly an image of a defiant Trump raising a fist, or at least it was months after he joined the bench.

That leaves Sauer, who, as solicitor general, is tasked with defending federal government programs in the Supreme Court. That includes the Trump tariffs that the Supreme Court struck down last winter, and Trump’s unconstitutional attempt to strip many newborn Americans of their citizenship.

Despite these losses, Sauer has an impressive winning record before the Supreme Court, largely because the Court is controlled by six Republicans who are highly sympathetic to Trump and his agenda. This is, after all, the same Court that said that Trump may use the powers of the presidency to commit crimes, after Sauer argued as much. 

Sauer has been particularly effective in persuading the Republican justices to block lower court rulings against Trump on the Court’s “shadow docket,” a once rarely used mix of emergency motions and other matters that became a routine part of Supreme Court litigation during Trump’s first term.

So Trump has taken several of his personal lawyers and transformed them into some of the most well-credentialed — and in some cases, the most powerful — figures in the legal profession. Thus far, the evidence suggests that these individuals remain loyal to Trump, even when they move into jobs that are supposed to be nonpartisan. Three of them already have lifetime appointments. 

Any nation governed by the rule of law must have government officials who will obey whatever constraints the law imposes — whether they be federal agency leaders who follow the law out of a sense of duty, or judges who rein in executive branch leaders who refuse to do so. Institutions like the Department of Justice also depend on informal norms, many of which are a response to similar abuses of power during the Nixon administration, that have long constrained federal prosecutors.

But Trump’s DOJ is often actively hostile to these norms, and the growing legal power of Trump’s personal lawyers is just the latest example. Their steady reshaping of the judiciary clears the way for a federal government that is not constrained by anything.