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Last week’s supreme court decision upholding the district court’s restraining order on USPS’s mail-in ballot restrictions is being hailed as a victory for electoral integrity by politicians, political commentators and voting rights advocates alike. The senator Chuck Schumer, for example, called the decision “one of the most important cases to protect voting rights before the supreme court”. But the unsigned, three-sentence opinion, with only a brief concurrence and a lengthy dissent, is no such thing.
The court based its brief opinion entirely on the timing of the roll-out of the new rules, which became effective on 21 August, just weeks away from the midterm elections and only days before several states were scheduled to begin mailing out their ballots. California’s submission to the court, joined by twenty-two states and the district of Columbia, asking the court to leave the injunction against the rule change in place, made clear that compliance with the rules in advance of the midterms would not only be difficult; it would be impossible without disenfranchising thousands of voters. And that, of course, is the point.
The court fight over the timing of the rule change does not address whether USPS has a right to burden mail-in voting to this degree in the first place. By statute, USPS is permitted to promulgate rules governing the mail, and the substantive question about the enactment of these rules after the elections will be whether they exceed that statutory permission or are otherwise unconstitutional.
This was the message of the justice Brett Kavanaugh’s concurrence. Even though he agreed that insisting on implementing the new rules prior to the midterms would be “arbitrary and capricious”, he evinced no objection to the rules change when time permits. It will presumably fall to the court after the midterms to determine whether the new rules are a permissible response to concerns about electoral security or whether they primarily serve the impermissible purpose of restricting the franchise.
In addition to the Kavanaugh concurrence, the justice Samuel Alito, in his dissent joined by the justice Clarence Thomas, was adamant that the USPS had every right to enact the intended rules change, even prior to the midterms, under the general powers of the post office under federal law.
It was hard not to be struck by the irony that these two stalwart supporters of presidential powers, Alito and Thomas, would find themselves suddenly defending the autonomy of an independent agency based on deference to congressional legislation and the value of separation of powers, when in other cases, such as Seila law v CFPB, they set themselves against Congress’s delegation of authority to an independent agency precisely on separation of powers grounds. It is surely not a coincidence that presidential powers are enhanced by Congress’s delegation to the agency in the former case but weakened by a comparable delegation in the latter case.
Whether they say so explicitly or not, these two justices increasingly divide up the landscape as a struggle between presidential power on the one hand versus anything that might infringe on that power on the other.
Whether the issue is the president’s right to regulate the mail; his right to remove heads of agencies, including supposedly independent agencies; his right to claim executive privilege over communications with advisers; or even his right to commit crimes with impunity through the vehicle of his official duties, Alito and Thomas, joined frequently by other members of the court’s conservative majority, have increasingly allowed their jurisprudence to be held prisoner by the drive to expand presidential authority.
But not all instances of presidential authority. Thomas’s concurring opinion in Trump v United States, which established immunity to prosecution for crimes the president performs in his official capacity, argued that Jack Smith’s prosecution of Trump violated the appointments clause of article II, section 2, clause 2, which he characterizes as “an important check against the president” – in this case, Joe Biden.
Apparently the appointments clause is singular in establishing a constraint on presidential authority, while Thomas refuses to recognize most other such constraints where the presidential authority in question is Trump’s. Thus whether it is Congress’s power of the purse (see the tariff decision), the president’s rights over immigration (see the Haitian immigrants’ case) or his 91-page dissenting opinion in Trump v Barbara attacking the majority’s rejection of the president’s power to eliminate the 14th amendment’s guarantee of birthright citizenship (Trump v Barbara) – none of these possible constraints struck Thomas as valid. But the appointments clause is?
Trump’s remarks about Monday’s ruling, which he characterized as a “big loss for Republicans”, seem to confirm that the president’s primary purpose in demanding the new rules is voter suppression.
The real question is whether the USPS must or even may allow itself to be used for partisan political purposes when election regulation is beyond its mandate. States regulate elections, not the postal service. The new rules may therefore violate principles of federalism even when enacted with plenty of time for states to comply. The court’s opinion does not tell us one way or another whether the three justices clearly supportive of the rules change would be joined by any other justices.
Defenders of voting rights must not relax. While USPS v California is a temporary political setback for the president and his fellow Republicans, it is not yet a home run for democracy.
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Claire Finkelstein, a contributing opinion writer to the Guardian, is the Algernon Biddle professor of law and professor of philosophy at the University of Pennsylvania and the faculty director of its Center for Ethics and the Rule of Law
