Well, that was quick.

On Thursday evening, federal district Judge Indira Talwani issued a new order that temporarily blocks an effort by the Trump administration that appears designed to sabotage voting by mail in the upcoming midterm election. Talwani previously blocked an executive order that President Donald Trump issued in March, which ordered the US Postal Service (USPS) to impose a byzantine array of new regulations on voting by mail, but the Supreme Court reinstated the order on Monday.

Talwani’s new order sets up a new legal fight that is almost certain to return to the justices, and it is unclear whether this Court, with its 6-3 Republican majority, will allow Trump to make sweeping and unilateral changes to how the United States conducts its elections so close to an actual Election Day.

That said, while Talwani’s new order in League of Women Voters v. Trump is brief, it is well-crafted to persuade at least some members of the Court’s Republican majority to break with the leader of their political party. 

Talwani relies on a fairly new legal concept known as the “major questions doctrine,” that the Court’s Republican majority invented in the later part of the Obama administration, and that the Court has only actually used against one president: Joe Biden. Briefly, the doctrine claims that the executive branch may not make policy changes that are too sweeping or too aggressive, often even if a federal statute appears to give it the power to do so. 

As the Court summarized this idea in Utility Air Regulatory Group v. EPA (2014), the first Supreme Court decision to articulate the major questions doctrine, “we expect Congress to speak clearly if it wishes to assign to an agency decisions of vast ‘economic and political significance.’”

This doctrine, as Talwani indicated in her recent order, cuts sharply against Trump’s rules governing voting by mail. The Trump administration’s new rules impose so many layers of bureaucracy on mail ballots that it likely would be impossible for many states to comply with these regulations. Trump’s new rules, in other words, would effectively shut down voting by mail in much of the United States. And there are several states who conduct their elections almost entirely by mail, which means that Trump’s rules could effectively cancel the 2026 midterms in those states. 

If that’s not a decision of “vast economic and political significance,” nothing is.

The uncertain question, however, is whether the Court will actually apply its major questions doctrine to Trump — something that several justices have thus far been reluctant to do. In Learning Resources v. Trump (2026), the tariffs case, three Republican members of the Court (Chief Justice John Roberts and Justices Neil Gorsuch and Amy Coney Barrett) did say that this doctrine prohibits many of Trump’s tariffs. But the other three Republican justices (Clarence Thomas, Samuel Alito, and Brett Kavanaugh) refused to apply this doctrine to a member of their own party. 

If Roberts, Gorsuch, and Barrett hold to the view they expressed in Learning Resources — the view that the major questions doctrine applies to both Trump and Biden — then it is likely that these three justices plus the Court’s three Democrats will form a majority that will strike down Trump’s latest attempt to sabotage voting by mail.

A brief history of the major questions doctrine

Many federal laws lay out a broad policy goal, and then empower a federal agency to write rules that will achieve that goal. Federal law, for example, requires the EPA to determine when power plants must install cutting-edge technology to reduce their emissions. It tasks a body within the Department of Health and Human Services with determining which vaccines must be covered by health insurers. And it gives the Federal Communications Commission some control over the cost of cable television.

Often, the federal statutes granting these powers are written quite broadly. During the later part of the Obama administration, however, many voices within the conservative legal movement grew concerned that Democratic presidents could use these broadly worded statutes to make major policy changes. Indeed, in the late Obama administration, the Federalist Society’s annual lawyers’ convention, probably the most important annual gathering of influential Republican attorneys, became a showcase of proposals to restrict federal agencies and prevent them from using their congressionally granted authority too aggressively.

Ultimately, the Supreme Court’s Republican majority settled on the major questions doctrine as their solution to this clamor within the Federalist Society and other conservative legal groups. The doctrine effectively gives the justices a veto power over any policy proposal advanced by the executive branch if the justices deem that policy to be too ambitious.

The doctrine effectively gives the justices a veto power over any policy proposal advanced by the executive branch if the justices deem that policy to be too ambitious.

One common critique of this doctrine is that it appears nowhere in the Constitution or in any federal law. The Court first announced the doctrine in its 2014 opinion in Utility Air, which merely invoked it to criticize a hypothetical EPA regulation that never actually existed. The Court has also never handed down a majority opinion explaining where the justices’ new power to veto federal regulations comes from. Moreover, while some individual justices have attempted to do so, their explanations conflict with each other, and are often ridiculous. Barrett has argued, for example, that the major questions doctrine derives from a parable about a babysitter.

Another criticism of the doctrine is that the Court has never applied it to a Republican administration — indeed, the Court has thus far only applied it to Biden. The doctrine, after its first appearance in 2014, laid dormant for the entire first Trump administration — only to spring back to life in order to block several of Biden’s attempts to respond to the Covid-19 pandemic.

Yet, while the major questions doctrine is hard to defend as a good faith effort to interpret the Constitution or any statute, the pragmatic case for allowing someone to rein in a too aggressive president has undoubtedly gotten stronger in the last two years. Trump is a walking advertisement for the idea that there should be limits on executive power. If the Court decided to apply its major questions doctrine to Trump, it’s unlikely that many Democrats would object to such a decision.

Thus far, however, the Court’s three Democrats have kept this recently fabricated doctrine at arms length — in Learning Resources v. Trump (2026), for example, they concluded that it was unnecessary to invoke the major questions doctrine to strike down Trump’s tariffs that were at issue in that case because federal law was clear that those tariffs could not exist.

The Court’s Republicans, meanwhile, have split on whether the doctrine should be applied to Trump. While Roberts, Gorsuch, and Barrett all concluded that Trump’s attempt to impose trillions of dollars worth of new taxes on imports was a decision of “vast ‘economic and political significance,’” the other three Republicans joined an opinion by Justice Brett Kavanaugh, which said that the doctrine does not apply “in the foreign affairs context, including foreign trade.”

Kavanaugh, in other words, would have invented a new exception to a brand new legal doctrine, which just happened to be perfectly tailored to exempt a Republican president’s signature economic policy.

Still, there are three Republican justices who have previously concluded that the major questions doctrine may be used against a Republican president. If these justices hold to that view in League of Women Voters, that’s enough to form a majority against Trump’s restrictions on voting by mail because the Court’s three Democrats have already signaled that they oppose those restrictions.

League of Women Voters gives the Roberts Court a second chance to legitimize one of its most consequential changes to US law

Because the Court has neither offered a plausible explanation of where the major questions doctrine comes from, nor applied this doctrine in a nonpartisan way, both the Democratic justices and a wide array of legal scholars have treated the doctrine as illegitimate. So have I. Kavanaugh’s dissenting opinion calling for a Trump-sized exemption to the major questions doctrine certainly didn’t help the case for it.

But if any case justifies a court decision that overrides a presidential power grab, League of Women Voters is that case.

Trump has carried out a vendetta against voting by mail since the 2020 election. During the Covid pandemic, disease-shy Democrats were much more likely to vote-by-mail than Republicans, because voting by mail allowed Democrats to avoid a trip to the polls where they might catch Covid. And these voting patterns continued even after the pandemic receded. According to the Pew Research Center, 44 percent of Democrats, and only 26 percent of Republicans, voted by mail in the 2024 election.

The new restrictions on voting by mail, in other words, are almost certainly motivated by Trump’s desire to shut down a method of voting that is preferred by Democrats, and thus skew the 2026 election towards Republicans.

Among other things, the new rules require states to mail ballots in a special envelope which must include certain design elements mandated by the federal government. These envelopes must be preapproved by the Postal Service, and individually scanned in a process that the Trump administration claims will take “less than a minute per mailpiece.”

But, as several states point out in a legal filing challenging Trump’s rules, California alone needs to mail 23 million ballots to individual voters. So that potentially adds up to “23 million minutes … or more than 43 years” that state officials would need to spend just to comply with one small part of the new regulations.

Trump’s lawyers point to two vaguely worded statutes to justify the new restrictions. One permits USPS to adopt rules “as may be necessary in the execution of its functions.” The other permits it to “provide for the collection, handling, transportation, delivery, forwarding, returning, and holding of mail.”

If the major questions doctrine applies to Republican administrations, however, there is no need to parse whether these two laws should be read to allow the Trump administration to effectively shut down voting by mail. The question of whether to quash a method of voting that tens of millions of US voters have used in the past is undoubtedly a question of “vast … political significance.” And thus, under Utility Air’s holding that Congress must “speak clearly” before it can give a federal agency the power to resolve this question, the two vague statutes that Trump’s lawyers cite to justify the new rules are not enough.

League of Women Voters, in other words, should be a very easy case — even for the Court’s Republicans. All they need to do to strike down Trump’s attack on voting by mail is apply the same rules to Trump that they previously applied to Biden.

In March, President Donald Trump issued a blatantly illegal executive order claiming that he had the power to unilaterally rewrite US election law. The order threatens prosecutions against state officials who allow certain people to vote, and it also requires states to include several federally mandated design elements in the envelopes that they use to mail ballots to voters. 

On Monday, the Supreme Court’s Republican majority allowed that order to go into effect. All three of the Court’s Democrats dissented.

Yet while the Court’s new decision in Trump v. California is troubling, it’s not necessarily a sign that the justices will permit Trump’s illegal order to take full effect. The Court’s actual holding in California is that two lower federal courts moved too quickly when they blocked the executive order. But California does not opine on whether the order is actually legal.

The Supreme Court’s decision reinstates Trump’s order for now, but there are several active cases challenging this order in the lower courts. So it is likely that a judge will issue a new decision blocking the executive order again very soon.

Still, the Court’s decision to reinstate this order, even temporarily, is likely to confuse state election officials who are racing to prepare for an upcoming election. And the provision threatening prosecutions might deter these officials from doing their jobs until that provision is blocked by another court.

The Court is divided on whether Trump’s threat targeting state elections officials is actually a threat

The case concerns two sections of Trump’s March order, one of which threatens state election officials with prosecution if they allow the wrong people to vote, and the other which appears to be an attempt to sabotage voting by mail during the 2026 midterms.

The first one of these, Section 2, itself contains two provisions, one of which orders the Department of Homeland Security 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.”

This simple command to compile a list would be unproblematic, except that the second provision of Section 2 orders the attorney general to prioritize prosecutions against “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, when both provisions of Section 2 are read together, they threaten prosecutions against any state official who issues a ballot to a voter whose name does not appear on Trump’s list of approved voters.

Such a threat is unconstitutional, as the Constitution gives states, and not the federal government, the power to decide who may vote in congressional and presidential elections. The justices, however, primarily split on whether to give Trump’s order a hyperliteral reading.

In dissent, Justice Sonia Sotomayor argues the two clauses are clearly connected and she cites a previous Supreme Court decision warning that “[p]eople do not lightly disregard public officers’ thinly veiled threats to institute criminal proceedings against them if they do not come around.” 

But the majority ignores Section 2’s purpose, and instead notes that Trump’s executive order does not explicitly require states to use Trump’s list of approved voters. They also note that the executive order’s call for the Justice Department to prosecute state officials does not include any reference to Trump’s list.

In any event, even the Republican justices do not hold that the Constitution permits Trump to create a list of approved voters and prosecute state officials who depart from that list. Instead, the Republicans hold that it is too soon to block Section 2. DHS must first compile its list of approved voters, or DOJ must actually prosecute someone, before a challenge to Trump’s new policy can proceed.

The effect of the Republican justices’ decision, in other words, is to leave Trump’s threat in place, but also water it down considerably: The Court does state that Trump’s executive order does not actually require states to use Trump’s approved voter list. So that may be a sign that, if Trump actually did try to prosecute someone for allowing someone not on DHS’s list to vote, the justices would reject that prosecution — but for now, there’s little standing in the way of him doing it. 

The rest of the Court’s decision was obsolete the minute it was handed down

The remainder of the Court’s decision deals with Section 3 of Trump’s executive order, which orders the United States Postal Service (USPS) to design an envelope which states must use when they mail ballots to voters. It also forbids USPS from delivering ballots that do not comply with this new design.

The Republican justices conclude that the lower court decisions blocking Section 3 were also premature because, at the time when those courts handed down their decisions, USPS had not yet formally issued a rule that announces the new mandatory envelope design. But USPS issued that rule on Friday. So the Supreme Court’s decision was out of date days before the justices decided it, but that does nothing to change the immediate effect of the decision.

Among other things, the Trump administration’s new rule requires states to mail ballots in envelopes that include several federally mandated design elements, including a mandatory logo and a unique identifier for each voter. If the new rule takes effect, USPS will refuse to deliver any ballots that do not comply with these new, Trump-approved design requirements.

Democrats are significantly more likely to vote by mail than Republicans. So the Trump administration’s new rule is likely to skew the 2026 election towards his political party if it is allowed to take effect.

If Section 3 is eventually allowed to take effect, that will be a catastrophe for US democracy, and may even make it impossible for many states to hold midterm elections. That’s because the states couldn’t possibly have known what specific design requirements the Trump administration would impose on them until USPS issued its rule. Many states have already purchased envelopes that do not comply with the new federal mandate. And it’s not like new envelopes can simply be printed on the fly.

In some states, millions or even tens of millions of voters will vote by mail, which means that, in order to comply with the Trump administration’s new order, these states will somehow need to obtain truckloads of envelopes in time for this November’s election, comply with the considerable procedural requirements laid out in Trump’s order, and distribute these ballots to voters fast enough for them to actually return them by the deadline.

Several US states, moreover, conduct their elections almost entirely by mail. While these states often set up voting centers where voters can also vote in person, these in-person voting centers are merely a backup. And these states are unlikely to have the infrastructure, voting machines, or network of election workers that are required to run an entirely in-person election if mail-in voting fails.

So Trump wants to impose impossible deadlines on many states. But Monday’s decision does not actually hold that it is legal for him to do so. Indeed, the federal judge who initially blocked Trump’s executive order has already signaled that she is likely to block the USPS’s new rule. We will find out if the Supreme Court will allow Trump to sabotage voting by mail after that new decision makes its way back to the justices.

The Trump administration’s legal argument for the new USPS rule is quite thin

Trump’s lawyers only barely make a legal argument in favor of the new rule. After the USPS issued its new rule, Trump’s Justice Department did file a supplemental brief in the Supreme Court arguing that the new rule is lawful. But that brief is only three pages long, and its legal analysis is exceedingly thin. 

As Indira Talwani, one of the judges who blocked Trump’s executive order, noted in her opinion, there is no federal law that explicitly “delegates authority to control mail-in voting to USPS.” So the Trump administration must rely instead on broadly worded statutes that simply state that the Postal Service may deliver mail and take related steps that are necessary to deliver the mail.

One permits USPS to adopt rules “as may be necessary in the execution of its functions.” The other permits it to “provide for the collection, handling, transportation, delivery, forwarding, returning, and holding of mail, and for the disposition of undeliverable mail.”

And, even if these vague statutes could authorize the Trump administration to impose granular restrictions on voting by mail, the fact remains that it is impossible for many states to comply with these restrictions in 2026. Some states, such as North Carolina, are supposed to start mailing ballots at the end of next week.

It would be one thing if Trump tried to impose new envelope design requirements that will take effect in future elections. But there’s simply no time for states to design compliant envelopes, get those designs approved by USPS order dozens of pallets worth of these envelopes, and distribute them to voters in time for the 2026 midterm elections.

So the stakes in this dispute remain quite high. Trump has literally issued an executive order that, if implemented, might prevent many states from holding the midterm elections in the first place. But it is still unclear if this Supreme Court will allow that to happen.

On Tuesday, a federal appeals court struck down a South Carolina law that permits all voters over age 65 to vote by mail but allows younger voters to do so only if they meet a set of specific criteria. The United States Court of Appeals for the Fourth Circuit’s decision in Grant v. Belangia held that the state’s law violates the 26th Amendment.

If you’re having trouble remembering what the 26th Amendment does, you’re probably not alone. Ratified in 1971, the 26th Amendment states that “the right of citizens of the United States, who are eighteen years of age or older, to vote shall not be denied or abridged by the United States or by any State on account of age.” As the Fifth Circuit noted in a case challenging a similar Texas law, the amendment “has yet to be interpreted in any significant depth.” 

But three different federal appeals courts have now split three ways on how to read it, which makes it likely that the Supreme Court will have to step in soon and determine, for the first time, what a relatively new constitutional amendment actually means. And if that happens, it will have significant implications for the increasingly partisan war over how difficult it should be to vote by mail. 

The Fourth Circuit’s opinion in Grant holds that the 26th Amendment prohibits “unequal allocation of voting access based on age,” and thus, if elderly voters can vote by mail, younger voters must be allowed to do so as well. Both the Fifth and the Seventh Circuits, which previously ruled on similar challenges to Texas and Indiana absentee voting laws, disagree with this view.

The question of whether states may have different absentee voting rules for older voters first flared up in 2020, during the Covid-19 pandemic. Many voters were afraid to go to the polls, for fear that they might become infected if they voted alongside others in an indoor polling place. And this led to a pair of lawsuits claiming that Texas must allow younger voters to vote absentee, lest they be effectively denied the ability to safely cast a ballot altogether.

Ultimately, however, the Fifth Circuit, which oversees federal litigation out of Texas, rejected the claim that only allowing older people to vote by mail violates the 26th Amendment.

The stakes of this fight have diminished, since few voters are still afraid to physically go to the polls in 2026, but they are still significant. During Covid, many Democrats got in the habit of voting by mail, while President Donald Trump campaigned against mail voting. So Democrats are now more likely to cast mailed ballots than Republicans, and any law that makes it easier to vote by mail is thus likely to benefit the Democratic Party, at least around the margins.

Indeed, the Republican Party understands this imbalance as well as anyone. While Trump spreads false claims that “mail-in voting means mail-in cheating,” his party was busy urging the Supreme Court to toss out thousands of mailed ballots in future elections.

The question in Watson v. Republican National Committee (2026) was whether federal law requires ballots that are mailed prior to Election Day, but that arrive shortly thereafter, to be trashed. The GOP’s legal arguments in Watson were risible — Republicans claimed that it’s actually been illegal to count these ballots since 1845, and they just happened to discover this 181-year-old legal requirement at the exact same time that Trump decided that voting by mail is bad — but it’s notable that Watson was a 5–4 decision despite the implausibility of the GOP’s arguments. 

Four justices, all Republicans, would have given their party what it asked for in Watson. 

Given these partisan stakes, it’s likely that lawyers from both parties will push the Supreme Court to interpret the 26th Amendment in a way that favors their clients’ interests — with Democrats pushing for an expansive interpretation of the right to vote and Republicans pushing for as many restrictions on voting by mail as possible. And it is equally likely that the Court will have to take up this issue soon, because the justices are especially likely to take up legal disputes that divide federal courts of appeals.

The three-way split on how to read the 26th Amendment

The 26th Amendment emerged from the crucible of the Vietnam War and a draft that conscripted many young people into combat who could not vote. Many of the amendment’s proponents chanted the slogan “old enough to fight, old enough to vote,” and this message swayed lawmakers across the country. According to the Fifth Circuit, the amendment was “approved by Congress in March of 1971 and ratified by June,” making it the “most quickly ratified constitutional amendment in our history.”

The broad initial support for this amendment may explain why there’s been so little litigation over what it means. Pretty much everyone agrees that it permits Americans as young as 18 to vote, so young voters typically haven’t had to file lawsuits to gain access to the ballot.

But the Amendment is also broadly worded, providing that the right to vote “shall not be denied or abridged” based on age — at least for voters who are at least 18. That raises a difficult legal question: What happens if a state does not outright prohibit young people from voting, but it makes it more difficult for them to do so than it does for older voters?

The Fourth Circuit’s answer to this question is straightforward. Grant reads the 26th Amendment as a broad prohibition on age discrimination. If a 70-year-old voter is allowed to cast a ballot in a particular way, then a 19-year-old voter must be allowed to do the same.

As Grant notes, the 26th Amendment’s “denied or abridged” language mirrors several other amendments, including the 15th Amendment, which provides that the right to vote shall not be “denied or abridged” because of race, and the 19th Amendment, which says it shall not be “denied or abridged” based on sex. 

Both of these amendments have historically been understood to broadly ban discrimination. A state could not permit white people to vote by mail, but not Black people, nor could it apply a similar regime to men but not women. So that suggests that the 26th Amendment applies a similarly broad ban on age discrimination in elections.

The Fourth Circuit also points to the Supreme Court’s decision in South Carolina v. Katzenbach (1966), which said that the 15th Amendment invalidates “state voting qualifications or procedures which are discriminatory on their face or in practice.” So that also suggests that the words “denied or abridged” should be read to broadly ban discrimination.

Meanwhile, the Seventh Circuit’s decision in Tully v. Okeson (2023) reached a different conclusion. Tully notes that, two years before the 26th Amendment was ratified, the Supreme Court held that laws limiting who can vote absentee “do not themselves deny” voters “the exercise of the franchise,” as voters who cannot vote by mail may still be able to vote by other means. 

The Seventh Circuit also pointed to the Supreme Court’s decision in Harman v. Forssenius (1965), which construed the 24th Amendment’s statement that the right to vote “shall not be denied or abridged … by reason of failure to pay any poll tax or other tax.” Harman states that the right to vote is “abridged” when a state imposes “onerous procedural requirements which effectively handicap exercise of the franchise,” and that state election laws are unconstitutional when they impose a “material requirement” solely on people who refuse to pay a poll tax.

Thus, according to the Seventh Circuit, mere discrimination against younger voters isn’t enough to violate the 26th Amendment. A state must impose a sufficiently “onerous” or “material” requirement on them, and Tully concluded that a restriction on absentee voting wasn’t enough if the state also provides sufficient avenues where a voter can cast their ballot in person. 

The Fifth Circuit’s decision in Texas Democratic Party v. Abbott (2020) resembles Tully, but with some subtle differences. That Court held that the right to vote is “denied” only if the law “absolutely prohibits them from voting,” and it held that a law “abridges” a person’s right to vote only when it “makes voting more difficult for that person than it was before the law was enacted or enforced.”

To justify this interpretation, the Fifth Circuit points to the Supreme Court’s decision in Reno v. Bossier Parish School Board (2000), which said that “it makes no sense to suggest that a voting practice ‘abridges’ the right to vote without some baseline with which to compare the practice.” Bossier Parish established that, at least in some circumstances, that baseline should be “the status quo” that existed before a state amended its law to insert a provision that is being challenged in court.

So it’s safe to say that the Supreme Court’s past decisions construing the words “deny or abridge” point in several directions. Proponents of the Fourth, Fifth, or Seventh Circuit’s divergent approaches to the 26th Amendment can all find support for their proposed rule in the Court’s precedents. And the Court has never definitively ruled on how to read the words “deny or abridge” as they are specifically used in the 26th Amendment.

That means that, when the justices do take up this question, they have more or less maximal discretion. A justice who wants to read the 26th Amendment expansively will have no trouble finding authoritative sources that they can cite in their opinion, and a justice who wants to limit access to voting by mail will also be able to find plenty of sources that they can cite to justify a narrow reading of the 26th Amendment.

So how is the Supreme Court likely to read the 26th Amendment?

Realistically, this Court is likely to construe the 26th Amendment narrowly. This is, after all, a 6-3 Republican Court.

Indeed, the question of whether states may discriminate in favor of older voters did reach the Supreme Court during the pandemic. After the Fifth Circuit construed the 26th Amendment narrowly in a preliminary ruling in the Texas Democratic Party case, Democrats asked the justices to issue a temporary decision that would have expanded absentee ballot access during the pandemic, but the Court denied the request.

The fact that the Court denied this temporary relief does not necessarily mean that it will embrace a narrow reading of the 26th Amendment once it gives the issue a full hearing. But it does suggest that most of the justices weren’t troubled by age discrimination in absentee voting, even at the height of the pandemic when there were serious concerns that people denied absentee ballots may not be able to safely vote.

The 5-4 vote in the Watson case is also an ominous sign for anyone hoping that the Court may make it easier to vote by mail, as it is difficult to exaggerate just how weak the Republican Party’s arguments were in Watson, but four justices voted to invalidate lawfully cast absentee ballots regardless.

In Watson, the Republican Party claimed that three federal laws setting the date for federal elections, the oldest of which was enacted in 1845, prohibited states from counting ballots that are mailed before Election Day, but that arrive afterwards. States have counted late-arriving ballots since the Civil War, and, as Justice Amy Coney Barrett pointed out in her majority opinion, there are several federal laws that simply assume that states are allowed to decide whether to count late-arriving ballots.

The fact that four justices voted in Watson to limit absentee balloting, despite the fact that the GOP was barely able to articulate an argument for its position, suggests that these four justices would also vote to limit absentee balloting in a 26th Amendment case. So that means that proponents of a narrow reading of this amendment only need to pick up one more vote. And, unlike in the Watson case, there actually are legal arguments in favor of the more conservative position on the 26th Amendment. The Fifth and Seventh Circuits both made plausible, if not exactly airtight, arguments for reading this amendment narrowly.

Still, the Fourth Circuit’s more expansive reading of the amendment is also quite plausible. So it is at least possible that the five justices who formed the majority in Watson could agree with the Fourth Circuit’s reading. Given that the Court has previously said so little about the 26th Amendment, we’re essentially in uncharted territory — on an issue that could potentially shape the outcomes of future elections.

Last June, in a case that effectively guaranteed one of Alabama’s Black Democratic members of Congress would be replaced by a white Republican, the Supreme Court used a single word that delighted movement conservatives and made many longtime civil rights advocates want to weep. 

In the first sentence of its decision in Allen v. Milligan (2026), most of the justices concluded that there is a tension between the federal Voting Rights Act (VRA), the landmark law that ended Jim Crow-era race discrimination in elections, and “our colorblind Constitution.” All three of the Court’s Democratic members dissented in Allen.

The word “colorblind” might not suggest, to many casual observers, the gravity of what the phrase means, how much power it has to roll back civil-rights reforms enacted in the 1960s — and the major ideological change ushered in by this Supreme Court. Proponents of colorblindness argue that any law that draws distinctions on the basis of race, for any reason whatsoever, is equally repugnant under the Constitution. Under this theory, laws like the Voting Rights Act and similar efforts to lift up historically disadvantaged racial groups are legally indistinguishable from the very kind of Jim Crow discrimination that the VRA sought to abolish. 

It’s an idea that cuts across the Roberts Court’s race decisions, including its decisions abolishing affirmative action in nearly all universities, its decisions undercutting public school integration, and its decisions dismantling the VRA. Under the colorblind thesis, the Constitution sees a modern law intended to guarantee some Black representation in Congress as precisely as intolerable as a 19th-century law forbidding Black people from voting at all. 

As Chief Justice John Roberts summarized colorblindness in a 2007 opinion, “the way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”

And lest there be any doubt, the Court’s commitment to this project extends far beyond a few pithy quotes. Just over one month before Allen, in Louisiana v. Callais (2026), the Court’s Republican majority imposed colorblindness on the laws governing US elections, effectively killing a 1982 amendment to the VRA — which was signed by President Ronald Reagan — in the process. Three years earlier, in Students for Fair Admissions v. Harvard (2023), the same justices implemented colorblindness in college and university admissions, ending affirmative action in nearly every institution of higher education in the country.

Allen’s reference to “our colorblind Constitution” confirms the breadth of this project, because if the colorblind thesis is imposed by the Constitution itself, that means that judges must strike down any law or government program that takes account of race, whether in hiring, federal contracting, university admissions, elections, or the military. (Though it is notable that the Harvard decision did dodge the question of whether service academies such as West Point may take account of race in admissions, after military leaders raised concerns that a racially diverse enlisted corps would resent being commanded by a corps of officers who do not resemble them.)

This shift in the Court’s approach to race cases is likely to lead to a purge of programs intended to benefit historically disadvantaged groups. Armed with precedents like Callais and Harvard, pro-colorblindness advocacy groups have filed a wide range of lawsuits challenging scholarships for minority youth, targeting groups that promote minority-owned businesses, and even trying to prevent universities from conducting surveys of Black students.

The GOP’s hard-right turn against laws like the Voting Rights Act is a recent development. Callais, after all, neutralized a law signed by Reagan, a Republican. An earlier Supreme Court case invalidating much of the VRA, Shelby County v. Holder (2013), struck down an extension of the VRA that was signed by Republican President George W. Bush. A significant faction within the GOP has fought against the VRA since the Nixon administration, but they repeatedly lost in the two elected branches of government and only prevailed after they captured an unelected judiciary.

But the victory of the “colorblind” theory in the conservative legal movement is also the result of decades of work. It is largely a story of how a once-fringe faction within the Republican Party took over both that party and then the Supreme Court. And, now that it controls the Court, that faction seeks to lock its approach to racial questions in place forever.

The pre-Roberts Court’s approach to race

Proponents of the colorblindness thesis often trace its origins to Justice John Marshall Harlan, the only dissenter in Plessy v. Ferguson (1896), the Supreme Court’s infamous decision permitting racial segregation. “Our Constitution is color-blind,” Harlan wrote in that dissent, “and neither knows nor tolerates classes among citizens. In respect of civil rights, all citizens are equal before the law.”

Yet, while Harlan was a racial progressive by the standards of late 19th-century legal elites, his views would offend nearly all modern-day Americans. The full context of Harlan’s famous “color-blind” line suggests that he rejected segregation, at least in part, because he viewed it as unnecessary to maintain white supremacy. “The white race deems itself to be the dominant race in this country. And so it is in prestige, in achievements, in education, in wealth and in power,” Harlan began the very same paragraph that includes the line about colorblindness. “So, I doubt not, it will continue to be for all time if it remains true to its great heritage and holds fast to the principles of constitutional liberty.”

The truth is that modern legal arguments regarding the Constitution’s racial equality provisions did not fully take shape until late in the 20th century. The Court’s landmark school desegregation decision in Brown v. Board of Education (1954) spoke only of a right to racially integrated public schools: “We conclude that in the field of public education the doctrine of ‘separate but equal’ has no place.” After Brown, the Court handed down a series of unexplained orders affirming lower court decisions that struck down segregation at public beaches, municipal golf courses, parks and elsewhere. But many of these orders were just one sentence long, and they hardly answered the question of why segregation is unconstitutional outside of the public school context.

By the 1970s, legal scholars began to split between two competing theories of how the Constitution approaches race. The first theory, which Yale law professor Reva Siegel labels the “antisubordination” principle, contends that “it is wrong for the state to engage in practices that enforce the inferior social status of historically oppressed groups.” On this theory, Brown was correctly decided because the purpose of school segregation was to subordinate Black people, and the Constitution does not tolerate a racial underclass.

The other theory, which Siegel labels the “anticlassification” principle, simply declares that “government may not classify on the basis of race.” And thus any law that draws any distinction on the basis of race is constitutionally suspect, even if that law was enacted to undo the legacy of racism.

The Supreme Court of the 1970s and ’80s, however, did not divide into two neat camps. Every late 20th-century justice was at least a moderate proponent of Siegel’s anticlassification principle. While Justice Thurgood Marshall, for example, argued that the Constitution views laws which seek to “remed[y] the present effects of past racial discrimination” with less skepticism than it does laws that enforce white supremacy, he still would have subjected affirmative action and similar programs to “intermediate scrutiny,” which is the same test that courts apply to laws that discriminate against women.

Such laws are unconstitutional unless the government can provide an “exceedingly persuasive justification” for them.

Meanwhile, while a majority of the Court ultimately concluded that both Jim Crow-like laws and programs like affirmative action must survive the same exacting legal test — known as “strict scrutiny” — the Court also permitted at least some affirmative action programs to exist. The seminal case was Regents of the University of California v. Bakke (1978), which recognized that students from underrepresented racial groups bring “experiences, outlooks, and ideas” to the classroom “that enrich the training of its student body and better equip its graduates.”

And thus, if universities could not take some steps to racially diversify their student bodies, all of those students, including the white ones, would receive an inferior education.

The pre-Roberts Court, in other words, took a pragmatic approach to race cases that avoided drawing rigid lines or categorically declaring well-meaning programs intended to achieve racial equality off-limits. The justices of this era also understood that institutions outside of the Court often had far more expertise on how to foster a pluralistic society than nine lawyers in black robes.

Take Justice Lewis Powell’s opinion in Bakke, which said that “it is the business of a university to provide that atmosphere which is most conducive to speculation, experiment and creation,” and which ultimately concluded that universities “must be accorded the right to select those students who will contribute the most to the ‘robust exchange of ideas.’” 

Powell was a white Southerner who, as chair of the Richmond, Virginia, school board, left office six years after Brown with only two of Richmond’s 23,000 Black children attending school alongside white students. But he was also humble enough to recognize that universities knew something about how to educate university students to succeed in a diverse nation that he and his fellow justices did not. And so he gave these universities some leeway to exercise that expertise.

Indeed, if anything, the current Court’s most defining feature is the complete absence of the very kind of humility that Powell showed in Bakke — especially on questions of race.

Writing colorblindness into the Constitution was one of Roberts’s top priorities as chief justice

John Roberts became chief justice of the United States in 2005. Less than two years later, he made his first big push to write colorblindness into the Constitution.

In a sharp break with earlier school segregation decisions, which concluded that public schools may require each school to have “a prescribed ratio of Negro to white students reflecting the proportion for the district as a whole,” Roberts wrote that public schools are forbidden from voluntarily integrating themselves.

Parents Involved v. Seattle School District No. 1 (2007) involved two school districts, one in Seattle and another in Louisville, that allowed families to select which schools they wanted their children to attend. If more students chose a particular school than that school could accommodate, however, the districts gave a preference to children who would make their chosen school more diverse. The idea was that, since the districts had to come up with some way to determine who got to attend oversubscribed schools, it should do so in a way that fostered racial integration.

This was the case where Roberts declared that “the way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” Indeed, Roberts even wrote that these two districts’ attempt to integrate public schools was no less odious than Jim Crow segregation. “Before Brown, schoolchildren were told where they could and could not go to school based on the color of their skin.” The school districts in Parents Involved, he claimed, asked his Court to “allow this once again — even for very different reasons.”

This is the essence of the colorblind theory of the Constitution. According to Roberts, the Constitution draws no distinction between white supremacist laws that segregate children by race, and an administrative scheme that tries to slightly increase the racial diversity of public schools.

It’s worth noting that Roberts’s views did not fully carry the day in Parents Involved, although a total of five justices agreed that the two school districts’ assignment schemes must be struck down. Justice Anthony Kennedy, who retired in 2018, wrote a separate opinion criticizing Roberts for going too far. “In the administration of public schools by the state and local authorities,” Kennedy concluded, “it is permissible to consider the racial makeup of schools and to adopt general policies to encourage a diverse student body, one aspect of which is its racial composition.”

But the Court’s overarching conclusion that racial integration can violate the Constitution still shocked the seniormost member of the Court. In dissent, Justice John Paul Stevens wrote that “it is my firm conviction that no Member of the Court that I joined in 1975 would have agreed with today’s decision.”

A justice ready to take colorblindness from a fringe idea into the law of the land

Stevens, however, should not have been surprised that the new chief justice would reach such a conclusion, because Roberts had spent nearly his entire career fighting for the most absolutist version of the colorblindness thesis.

In 1982, President Reagan signed an amendment to the Voting Rights Act which clarified that state election laws that have a disproportionate negative impact on racial minorities violate the VRA, even if the plaintiffs cannot prove those laws were enacted with racist intent — this was the amendment that Roberts’s Court effectively repealed in its Callais decision. Reagan did so over the objections of a conservative faction within his administration, and one of the most vocal members of this faction was a young lawyer named John Roberts.

As a Reagan White House attorney, according to journalist Ari Berman, Roberts “wrote upwards of 25 memos opposing” the 1982 law. He “prepared administration officials for their testimony before the Senate; attended weekly strategy sessions; and worked closely with like-minded senators on Capitol Hill.”

Meanwhile, in an unrelated 1982 memo to Attorney General William French Smith regarding Smith’s upcoming meeting with the chair of the US Civil Rights Commission, Roberts urged Smith to “reiterate our commitment to the color-blind principle” in that meeting.

Though Roberts, and the conservative faction that he belonged to, lost the fight to get Reagan to veto the 1982 law, this movement was hardly a flash in the pan. The original Voting Rights Act of 1965 included a provision requiring states with a history of racist election practices to “preclear” any new election laws with federal officials to ensure that those laws would not prevent people of color from voting. This provision was initially set to expire in 1970, which meant that there was an internal fight within the Nixon administration over whether President Richard Nixon should sign an extension.

The conservative faction lost that fight too. They also lost similar fights over Voting Rights Act extensions in 1975, 1982, and 2006, all under Republican presidents. The 2006 extension, signed by President Bush, passed the House by a 390-33 margin, and it passed the Senate 98-0.

Ultimately, however, a conservative faction that was too weak to convince a single senator to oppose the 2006 extension had the last laugh. While this faction was only a minor player in Bush-era electoral politics, it dominated conservative legal groups like the Federalist Society and successfully pushed its own candidates for the Supreme Court. And so, in 2013, that Court struck down preclearance in Shelby County. Roberts wrote the opinion, which was joined by all of the Court’s Republicans.

The piecemeal death of the Voting Rights Act, in other words, wasn’t just the triumph of a once-impotent faction within the GOP over a voting rights law, it was a triumph over the democratic process itself. Time and time again, this faction lost its fight against the VRA in the two democratically elected branches of government. But none of that matters to a faction that controls the Supreme Court.

The colorblindness thesis is ahistorical

One irony of this fight over how the Constitution approaches race is that, while the most recent version of the Republican Party embraces colorblindness, it does so despite a lack of evidence that the Constitution’s racial equality provisions were originally understood to support this thesis. In Republican legal circles, it’s currently fashionable to tout originalism, the idea that the Constitution’s meaning was fixed at the time it was drafted or ratified, and that judges must interpret constitutional provisions in line with this original meaning. Several of the current justices, including Justices Clarence Thomas, Neil Gorsuch, and Amy Coney Barrett, are outspoken originalists.

But within the Supreme Court it was Justice Thurgood Marshall, the great civil rights lawyer turned liberal justice, who first examined how the 14th Amendment, with its guarantee that no one will be denied the “equal protection of the laws,” was understood by the post-Civil War Americans who drafted and ratified it. And that evidence does not support colorblindness.

“The Congress that passed the Fourteenth Amendment is the same Congress that passed the 1866 Freedmen’s Bureau Act, an Act that provided many of its benefits only to Negroes,” Marshall wrote in a separate opinion accompanying the Bakke decision. He also quoted members of Congress who complained during debates over this act that it gave Black people “favors that the poor white boy in the North cannot get,” as well as lawmakers who defended the “very discrimination” the Freedmen’s Bureau “makes between ‘destitute and suffering’ negroes and destitute and suffering white paupers.”

Seven years later, in 1985, legal scholar Eric Schnapper wrote a seminal paper fleshing out Marshall’s argument. Schnapper identified “eight Reconstruction measures establishing programs limited, in varying degrees, to blacks.” These laws included the Freedmen’s Bureau named by Marshall, as well as less significant laws offering targeted benefits to Black Americans. One law appropriated $15,000 “for the relief of freedmen or destitute colored people in the District of Columbia.” Another provided safeguards for Black veterans of the Union army.

For more than four decades, no justice even attempted to rebut Marshall and Schnapper’s originalist case for affirmative action. Indeed, the Court’s originalists were so silent that, in a 2013 article, conservative legal scholar Michael Rappaport complained that they have “not made any real effort to justify their affirmative action opinions based on the Constitution’s original meaning.”

Justice Thomas did finally attempt to rebut at least some of Marshall and Schnapper’s evidence in a concurring opinion in the Harvard case, but his response to the originalist case against colorblindness was quite feeble. Thomas’s opinion did “not contend that all of the individuals who put forth and ratified the Fourteenth Amendment universally believed” in colorblindness, and he claimed that the historical record is “sparse.” 

Regarding the Freedman’s Bureau, Thomas argued that the laws authorizing it “applied to freedmen (and refugees), a formally race-neutral category, not blacks writ large,” even though “freedmen” is a category that consisted entirely of Black people. Regarding the other Reconstruction-era laws identified by Schnapper, Thomas discussed two of them.

Thomas acknowledged that “an 1866 law adopted special rules and procedures for the payment of ‘colored’ servicemen in the Union Army,” but anachronistically claimed that this law does not show that its 19th-century drafters rejected colorblindness because it may survive the strict scrutiny test that the Supreme Court devised during the 20th century. Thomas also conceded that “another law, passed in 1867, provided funds for ‘freedmen or destitute colored people’ in the District of Columbia,” but speculated that Congress “may have enacted the measure” — which again, used the words “colored people” — “not because of race, but rather to address a special problem in shantytowns in the District where blacks lived.”

All of which is a long way of saying that the colorblindness thesis is a far more recent invention than its most prominent proponents acknowledge. It was primarily devised, not by post-Civil War lawmakers seeking to undo the legacy of slavery, but by late 20th-century conservatives who opposed programs like affirmative action. 

If there was a serious originalist case for colorblindness, one of the justices would have made it in the 45-year period between Marshall’s opinion in Bakke and Thomas’s opinion in Harvard. And when Thomas finally did attempt to rebut the evidence gathered by Marshall and Schnapper, key prongs of his argument rested on anachronism and conjecture.

The fate of affirmative action and similar programs should be decided by elected officials, not by judges

In 2006, the people of Michigan voted to end affirmative action in that state’s university system. This ban sparked a far-fetched lawsuit claiming that it was somehow unconstitutional for the state to enact such a policy. As Judge Jeffrey Sutton wrote about this suit, the plaintiffs’ argument “transforms a potential virtue of affirmative action into a vice,” because “if there is one feature of affirmative-action programs that favors their constitutionality, it is that they grow out of the democratic process.” 

The question of what, if anything, should be done to racially diversify campuses — or to otherwise lift up communities that faced hundreds of years of enslavement, segregation, or other forms of government-sanctioned racism — is fraught. It is entirely reasonable to believe, as Chief Justice Roberts argued in Shelby County, that the same aggressive civil rights policies that were necessary to tear down Jim Crow in the 1960s are no longer needed two generations later. It is also reasonable to believe that, in a nation where the median white household earns over $36,000 more per year than the median Black household, that not enough is being done to close this gap.

Judge Sutton’s insight, in other words, should cut both ways. In a democracy, we are supposed to resolve these sorts of fraught questions through elections, not litigation. As the original history of the 14th Amendment shows, the United States did not ratify the post-Civil War constitutional amendments to prevent Harvard from diversifying its campus, and we certainly did not do so to prevent Congress from requiring former Confederate states to give some legislative representation to Black people. 

Similarly, proponents of colorblindness are more than capable of enacting their preferred policies without having to bypass democracy. Unlike the disenfranchised families who brought the Brown case, advocates of colorblindness do not need a judicial decree to advance their political goals — they can enact their preferred policies the same way that they did in Michigan’s 2006 election, by persuading voters that they are correct.

Nevertheless, by constitutionalizing colorblindness, the Republican justices have attempted to lock in place what could be, at most, a very transient electoral consensus around their preferred racial policy. If the American people decide, in the 2028 election or beyond, that the recent turn against laws like the Voting Rights Act was a terrible idea, they will have to replace the Supreme Court before they can reinstate those laws.

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.