Author: Steven D. Schwinn

  • District Court Halt’s Trump Mail-In Ballot EO, Again

    The same federal district court that earlier enjoined the Trump Administration from enforcing President Trump’s EO on mail-in balloting again halted the Administration.

    The move came yesterday, after the Supreme Court stayed the district court’s original injunction and after the plaintiffs renewed their motions in light of the now-issued USPS regulations.

    The upshot is that the USPS is barred from enforcing its new regulations on mail-in voting. The government already appealed, however, and will almost certainly seek an emergency stay. Ultimately, the case seems destined to return to the Supreme Court, this time probably on the merits.

    Here’s the backstory:

    President Trump issued an executive order that, among other things, directed the Postal Service to issue regulations that specify the design of mail-in-ballot envelopes, require states to report eligible voters to USPS, and refuse to deliver ballots to individuals if the ballots don’t conform to the new design rules or if the individual isn’t on the state-provided list. (The EO also directed DHS to generate a list of eligible voters in each state and to provide that list to the states. That part of the EO isn’t directly at issue in the ruling and filings in the last couple days.)

    States and voting-rights organizations filed two separate lawsuits that landed before the same judge. The court issued preliminary injunctions in both cases, holding, in short, that the EO likely exceeded the President’s authority. (Under the Constitution’s Elections Clause, states, not the federal government, have responsibility in the first instance for running federal elections. If the federal government gets involved, as it can under the Elections Clause, the Constitution gives the authority to Congress, not the President. Because Congress hasn’t authorized anything like the provisions in President Trump’s EO, President Trump and the implementing agencies lack authority.)

    The First Circuit declined to stay the states’ injunction, but the Supreme Court on Monday granted a stay. The Court didn’t rule on the merits, though; instead, it ruled that the states likely lacked standing and that their claims likely weren’t ripe, because they couldn’t demonstrate how the not-yet-finalized USPS regulations would harm them. (The USPS did, in fact, finalize the regulations last Friday, three days before the Court ruled. But the Court assessed standing (and apparently ripeness) at the time of the states’ complaint, not at the time of its ruling.) The district court then lifted its injunction in the organizations’ case.

    In response to the Supreme Court ruling, the states filed a new lawsuit, and the organizations supplemented their complaint to allege cognizable harms and ripeness in light of the now-issued USPS regulations.

    The regulations require states to get USPS approval for their mail-in-ballot envelope design, then, upon approval, to load their voter data into a USPS portal. Under the regs, USPS won’t mail ballots sent in a non-conforming envelope, and it won’t mail ballots to individuals not on the state-uploaded list.

    But there’s no timeline for any of this, and there are a lot of opportunities for mistakes. And because jurisdictions have already printed their envelopes and will start mailing them out shortly, any delay by USPS or any ordered re-design will cost states time and money and interfere with their elections. The regs also create confusion for voting organizations (that seek to educate voters) and voters themselves.

    With those harms now in hand, the court late yesterday issued a temporary restraining order, halting USPS from enforcing its regulations. On the merits, the court said exactly what it said before: the states have authority to regulate federal elections unless preempted by Congress, and Congress hasn’t enacted legislation that authorizes USPS’s regulations.

    The Administration appealed, and will surely seek an emergency stay from the First Circuit and, in all likelihood, the Supreme Court.

    Stay tuned . . . .

  • Supreme Court Green-Lights Trump’s EO on Mail-In Ballots, for now

    The Supreme Court today stayed a lower-court ruling that halted implementation of President Trump’s executive order on mail-in voting.

    The ruling means that the Administration can move to implement the EO. This could have a significant impact on mail-in voting in the upcoming mid-term elections.

    But the ruling was limited to jurisdictional issues and the stay factors; it did not address the EO’s lawfulness. The ruling thus allows state-plaintiffs to sue again if and when the EO harms them. But that potentially raises a different jurisdictional problem: the Court has ruled that courts should not intervene in a way that alters election rules too close to an election, lest they create confusion. Given the timing, this principle–the Purcell principle–could limit the ability of states to sue the closer we come to the election, even if they suffer harm.

    (In a separate case brought by the League of Women Voters, the court earlier this month entered a preliminary halting USPS from initiating rule-making under the EO for the upcoming mid-terms. The Administration filed a motion to reconsider in light of the Supreme Court’s ruling today. The court hasn’t yet ruled.)

    President Trump’s EO comes in three parts. First, it requires the Department of Homeland Security to create a list of citizens over the age of 18 in each state and to send that list to the states. Next, it requires the Attorney General to prioritize prosecution of those who issue federal ballots to ineligible voters. Finally, it requires the Postal Service to initiate rule-making that would require outbound ballot envelopes to contain a unique barcode and not to deliver the ballots of anyone not enrolled by a state with USPS.

    A group of states and D.C. sued, and a district court entered final judgment prohibiting the Administration from implementing those portions of the EO.

    The Supreme Court today granted a stay. On the likelihood of success on the merits, the Court ruled that the states lacked standing, because they haven’t yet demonstrated a concrete and particularized, actual or imminent harm. It also held for similar reasons that the case wasn’t ripe for judicial review. It held that other stay factors also favored the government.

    Justice Sotomayor wrote a dissent, joined by Justice Kagan. Justice Jackson wrote her own dissent.

    It’s not clear what happens next. The Administration may not have time to implement and enforce the EO before the mid-terms. If it does, however, it’s not entirely clear what would happen, that is, how the Administration would actually implement it, including how many mistakes DHS’s list may contain. And if the states can demonstrate harm, it’s not clear whether they could sue to block Administration actions, given the Purcell principle.

    On the merits, the Constitution gives the states in the first instance–not the federal government, and certainly not the President alone–the authority to run and regulate federal elections. According to the lower court (and the law), the President has no legal authority to issue much of the EO. Still, the Court didn’t seem too concerned about overreach, at least not yet, because, according to the Court, the EO limited DHS, the Attorney General, and USPS to act only “[t]o the extent feasible and consistent with applicable law.”

  • District Court Halts Trump EO on Mail-In Voting

    Judge Indira Talwani (D. Mass.) issued a preliminary injunction halting the Postal Service from “implementing, giving effect to, or enforcing” a key portion of President Trump’s executive order on mail-in voting in the upcoming elections. The ruling means that the Postal Service can’t move forward with its regulations that specify the design of mail-in ballots and restrict mail-in voting to voters on a USPS-approved list.

    We previously covered the issue here. Recall that circuits split on standing and ripeness, and the Administration asked the Supreme Court to intervene. (The Court hasn’t yet ruled.)

    The Massachusetts district court previously ruled (in denying a portion of the Administration’s motion to dismiss) that the plaintiffs plausibly alleged that the EO violated the Constitution. Its analysis in the PI ruling was curt and direct:

    The court has already answered and will again resolve the question clearly and affirmatively. The executive branch has no authority to regulate elections. U.S. Const., art. I, sec. 4, cl. 1; id., art. II.

    The ruling deals a sharp blow to the Administration and its efforts to regulate mail-in voting. Even if the Supreme Court intervenes and rules for the Administration in its pending application, the Administration will now have to reckon with this ruling–most likely by seeking a separate stay. As the court says, though: the Administration’s merits arguments are (extraordinarily) weak, and the other PI factors lean (strongly) in the plaintiffs’ favor.

  • DOJ/OLC Says Executive Privilege Covers Communication with Private Individuals

    The Department of Justice Office of Legal Counsel issued an opinion this week that the President’s executive privilege covers communications with private individuals, and not just certain government employees.

    The opinion represents an effort to expand the privilege beyond what any court has specifically held. I say “an effort” because the OLC memo itself doesn’t have any mandatory legal authority; it’s just the opinion of the office that advises the Executive Branch on legal questions. Still, OLC opinions can be persuasive in court.

    The opinion comes at an opportune time for President Trump: the Administration is in the middle of a dispute over the American Bar Association’s subpoenas for documents and testimony from Boris Epshteyn, a private individual, in the ABA’s case challenging the Administration on its crack-down on law firms. The Administration seeks to quash the subpoenas based on executive privilege. Moreover, the Administration may be laying groundwork for defenses against anticipated congressional inquiries and subpoenas, should the House (or Senate, or both) flip in the midterms.

    OLC wrote that the privilege applies to communications with private individuals for exactly the reason why it applies to certain government-employee presidential advisors: to allow the President to receive frank, open, and honest advice, without fear of later public disclosure, in order to “ensure that presidential decision-making is of the highest caliber, informed by honest advice and full knowledge.”

    OLC gave three qualifiers. First, the privilege only covers communications around official actions (but at the same time recognizing that those actions are quite broad and often entwined with apparently unofficial actions). Next, the privilege only applies “to communications with the President, or communications solicited and received by the President or his direct advisers.” Third, “the communication [must be] confidential at the time of its creation and . . . the President [must] continue to treat it as such.”

    Though the OLC memo doesn’t say much about how the privilege operates, remember that it’s a qualified privilege, not an absolute one. That means that a person or entity requesting information can overcome the privilege by demonstrating a sufficiently important need for the information. The OLC memo doesn’t attempt to change this, but it does say that invocation of the privilege “is rightly difficult to overcome.”

  • Ninth Circuit Allows Arizona Voter Restrictions to Stay on the Books

    The full (en banc) Ninth Circuit ruled on Friday that voter-rights organizations lacked standing to challenge one Arizona election law, and that they were not likely to win in their challenge against another.

    The standing ruling is significant, because it walks-back the Ninth Circuit’s more permissive approach to organizational standing in light of FDA v. Alliance of Hippocratic Medicine. (The Supreme Court held in that case that pro-life medical associations lacked standing to challenge the FDA’s approval of mifepristone–a drug designed to end a pregnancy. The Court rejected the organizational plaintiffs’ theory that they were harmed because the FDA action caused them to conduct their own studies and to expend resources to draft citizen petitions to FDA and to engage in public advocacy.) Moreover, the case illustrates the standing hurdles to pre-enforcement challenges of states’ elections laws, again in light of Alliance for Hippocratic Medicine.

    The case, Arizona Alliance for Retired Americans v. Mayes, challenged two provisions in Arizona’s election law: (1) a requirement that a county recorder cancel a voter’s registration in that county if the voter moves to and registers to vote in a new county; and (2) a provision that criminalizes knowingly providing a “mechanism for voting” to someone registered to vote in another state.

    The court ruled that the plaintiff voting-rights organizations lacked standing to challenge the first provision, the “cancellation provision.” The plaintiffs alleged that the provision would interfere with their voter-registration activities, and that they’d have to spend time and resources to assist voters with cancelling old registrations when they register in a new county, and that they’d have to divert resources to educate voters about the provision’s effects.

    The court said that these harms didn’t cut it under Alliance for Hippocratic Medicine. The court wrote that the alleged harms lacked record support and were highly speculative, and that “the Organizations’ expenditures to better inform their members and the public about [the Cancellation Provision’s] risks” and “to engag[e] in public advocacy and public education” do not confer standing.

    As to the criminal provision, the court held that the plaintiff organizations had standing for pre-enforcement review. But it went on to say that they weren’t likely to succeed on the merits, because “mechanism for voting” didn’t encompass their “voter registration and mobilization” activities.

    Judge Bress, joined by four other judges, concurred and argued that the court didn’t “engage fully with the core reasoning of Alliance for Hippocratic Medicine, including by not acknowledging key parts of that decision.”

    Judge VanDyke separately concurred, joining Judge Bress’s decision and adding that the court should modify its approach to organizational standing.

  • Trump Tries to Limit Birthright Citizenship . . . again

    President Trump issued an executive order last week that again tried to limit birthright citizenship, even after the Supreme Court struck his first effort just over a month ago, in Trump v. Barbara. (Our analysis of that case is here.)

    Under the new EO, the following individuals (among other) do not qualify for birthright citizenship:

    (c) either parent of that person engaged in a commercial transaction to purchase or access birthright citizenship for the person, or engaged in fraudulent activity to obtain citizenship, to include:

    (i) when the parent(s) of the person engage in a commercial transaction to ensure that the person’s mother is present in the United States, or a territory of the United States, to give birth; or

    (ii) when the parent(s) engage in a commercial transaction with a surrogate present in the United States, or a territory of the United States, to give birth . . . .

    The new EO targets “birth tourism,” when a person pays for help to get to the United States for the purpose of birthing a child (who then becomes a citizen).

    But Trump v. Barbara didn’t contain an exception to birthright citizenship for “birth tourism.” In fact, the decision said nothing about it. It didn’t even hint at such an exception.

    So it’s not clear how the Trump Administration thinks this new EO can skirt Trump v. Barbara. Or if that’s even its end-game.

    As of yet, nobody’s sued to block this new EO. Stay tuned . . . .

  • D.C. Circuit Declines to Halt Trump EO on Mail-In Voting

    The D.C. Circuit today affirmed a lower court’s refusal to halt the implementation of President Trump’s EO on mail-in voting. The ruling would allow the Administration to move forward with its implementation of the EO.

    But at the same time, the decision comes just days after the Second Circuit declined to stay a different lower court opinion that halted the implementation. The Administration asked the Supreme Court to intervene in that case just yesterday.

    Both cases test whether the issue is ripe for judicial review, given that the Administration hasn’t yet implemented the EO.

    The two cases leave the EO in limbo, at least in the plaintiff states in the Second Circuit.

    The cases test President Trump’s March 31, 2026, EO on mail-in voting. The plaintiffs in the cases argued that the EO’s Sections 2, 3, and 5 exceeded the President’s authority, violated the Elections and Electors Clauses, and violated the Tenth Amendment’s anti-commandeering principle.

    Section 2 of the EO directs DHS to compile a list of U.S. citizens and transmit the list to the states. It also provides for investigation and prosecution of state officials who issue or distribute ballots to individuals not eligible to vote. Section 3 directs the U.S. Postal Service to issue regulations governing the design of envelopes for mail-in voting and requiring all ballot mail to be mailed in such envelopes. Section 5 orders the Attorney General and department heads “to deter and address noncompliance” by “state and local election officials” and “public or private entities engaged in” ballot printing or distribution.

    The problem with the challenges, according to the Administration and the D.C. Circuit, is that the Administration hasn’t yet implemented the EO, and so we don’t know exactly how the Administration will implement it and exactly what harms it might cause. Without better information about implementation and harms, the reasoning goes, courts can’t judge its lawfulness.

    That said, the D.C. Circuit expressed some mixed feelings on the merits. On the one hand, it wrote that the “Plaintiffs have identified a number of serious questions concerning the lawfulness of proposed actions if implemented on the threshold of the upcoming federal election.” (Emphasis in original.) On the other, it said,

    Given the Executive Order’s repeated commands for agency action to conform to the law, this court cannot assume that the agencies will impose such late-breaking disruption on the States’ conduct of the 2026 election.

  • Trump Administration Seeks Supreme Court Intervention in Election EO

    The Trump Administration asked the Supreme Court to stay a lower court ruling that enjoined the Administration from enforcing portions of President Trump’s executive order on elections.

    If the Court grants a stay, the Administration could move forward in implementing President Trump’s EO. If it doesn’t, the Administration can only enforce the EO in states that weren’t a party to the lawsuit.

    The case arose when 23 states and the District of Columbia challenged President Trump’s March 31, 2026, EO on elections. The plaintiffs argued that the EO’s Sections 2, 3, and 5 exceeded the President’s authority, violated the Elections and Electors Clauses, and violated the Tenth Amendment’s anti-commandeering principle.

    Section 2 of the EO directs DHS to compile a list of U.S. citizens and transmit the list to the states. It also provides for investigation and prosecution of state officials who issue or distribute ballots to individuals not eligible to vote. Section 3 directs the U.S. Postal Service to issue regulations governing the design of envelopes for mail-in voting and requiring all ballot mail to be mailed in such envelopes. Section 5 orders the Attorney General and department heads “to deter and address noncompliance” by “state and local election officials” and “public or private entities engaged in” ballot printing or distribution.

    The district court ruled for the plaintiffs. The court held that the plaintiffs had standing, that their case was ripe for review, and that Sections 2 and 3 are “ultra vires and violate the separation of powers.” The court issued an injunction, halting enforcement for the upcoming primaries and general election (though not later elections) in the plaintiff states (though not in non-plaintiff states).

    The Trump Administration sought a stay of the injunction pending appeal with the Second Circuit, arguing that the plaintiff states lacked standing and that the case wasn’t ripe for judicial review. The Second Circuit on Friday denied a stay.

    Then today the Administration sought a stay in the Supreme Court, again arguing that the plaintiff states lack standing and that the case isn’t ripe for judicial review.

    If the Court grants a stay, the Administration can go ahead with its plans to generate a list of U.S. citizens and to impose Postal Service requirements on mail-in voting in the plaintiff states. If the Court denies a stay, the Administration can’t.

    Either way, the merits aren’t going before the Court, at least as the Administration has briefed the case so far. (The Administration didn’t appeal the merits to the Second Circuit, either, and that court didn’t rule on the merits.) That’s probably because the Administration understands the weaknesses in its positions on the merits: The President has no statutory authority for his EO; the Elections Clause and the Electors Clause give initial responsibility to the states to govern elections for federal office, subject to congressional action (which hasn’t happened in this area); and the EO may impose requirements on the states in violation of the anti-commandeering principle.

    The Administration’s theories on standing and ripeness, if accepted, could make it hard or impossible for plaintiffs to challenge the EO until close to or even after the upcoming elections, at which point even a successful challenge would come too late.

  • Second Circuit Upholds New York’s School Vax Requirement, Without Religious Exemption

    The Second Circuit earlier this week upheld New York’s school vaccination requirement, which includes a medical exemption but not a religious one.

    The ruling means that New York can continue to enforce its vaccination requirement even against those who have a religious objection.

    Sooner or later, the issue seems likely headed to the Supreme Court. (The Second Circuit’s ruling aligns with the Fourth Circuit.)

    The case, Miller v. McDonald, arose when Amish parents and schools sued the state over its vaccination requirement and lack of a religious exemption, arguing that the law violated their free-exercise right and their right to parent their children consistent with their religious beliefs. New York law previously included both a medical exemption and a religious exemption, but it dropped its religious exemption in 2019, after measles outbreaks in low-vax-rate communities.

    This is the second time the Second Circuit considered the case. The court previously upheld New York’s law against the same challenge. But the Supreme Court vacated that earlier judgment and remanded the case for reconsideration in light of Mahmoud v. Taylor (2025). Mahmoud held that a school board violated parents’ rights to direct their children’s religious upbringing by refusing to allow parents to opt their children out of instruction that included messages contrary to the parents’ religious beliefs.

    The Second Circuit applied Mahmoud to the plaintiffs’ right-to-parent claim and again upheld New York’s vax requirement against both claims.

    As to the free-exercise claim, the court held that the requirement was a neutral law of general applicability, and, even though it had an “incidental” effect on religion, it only needed to clear a low bar, rational-basis review. The court rejected the plaintiffs’ claim that the medical exemption (and the state’s withdrawal of the religious exemption) meant that the state treated comparable secular conduct more favorably than religious conduct, making the law biased against religion (and not neutral). It also rejected their claims that the medical exemption required an individualized assessment that would make the law not generally applicable. The court noted that even the plaintiffs conceded that the law satisfied rational basis review, and it therefore didn’t violate free exercise.

    As to the parental-right claim, the court held that the New York law didn’t burden parents’ rights the same way that the instruction and lack of exemption in Mahmoud burdened parents’ rights. That is, the New York law didn’t interfere with the parents’ right to direct their children’s religious upbringing; instead, it “imposes a health-and-safety condition on in-person school attendance to reduce the spread of communicable disease.” The court said that Mahmoud therefore didn’t change its earlier conclusion: the New York vax law, sans religious exemption, is valid.

  • Supreme Court Rejects President Trump’s EO Limiting Birthright Citizenship

    The Supreme Court ruled yesterday that President Trump’s executive order purporting to limit birthright citizenship violated the Citizenship Clause of the Fourteenth Amendment.

    The ruling leaves in place the long- and well-established rule that a person born in the United States is a citizen of the United States, with only limited exceptions–not including those who are unlawfully or temporarily present.

    The case, Trump v. Barbara, tested President Trump’s January 20, 2025, executive order, “Protecting the Meaning and Value of American Citizenship.” The EO said that children of persons who are unlawfully present or temporarily present in the United States do not qualify for birthright citizenship.

    In particular, the EO pointed to the text of the Citizenship Clause–“All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States”–and said that persons who are unlawfully or temporarily present were not “subject to the jurisdiction” of the United States and therefore did not enjoy birthright citizenship. The theory turned on allegiance, which, in turn, turned on domicile: A person is “subject to the jurisdiction” if they owe allegiance; they owe allegiance if they are domiciled in the country. By the President’s reckoning, those who are unlawfully or temporarily present can’t be domiciled here, therefore they can’t owe allegiance to the United States, and therefore they are not “subject to the jurisdiction” of the United States.

    Plaintiffs sued, arguing that the EO violated the Citizenship Clause and federal law that mirrors the Citizenship Clause. (This wasn’t the Court’s first crack at the case. Plaintiffs originally prevailed and won universal, or nationwide, injunctions against the EO early last year. In an emergency-docket ruling last year, the Court held that district courts lacked authority to issue universal injunctions. Plaintiffs then refiled and again prevailed, but with different relief, leading to yesterday’s ruling on the merits.)

    Six Justices agreed that the EO was unlawful. Five Justices held that it violated the Citizenship Clause, and one Justice (Justice Kavanaugh) held that it violated federal law (but not the Citizenship Clause). Three Justices dissented.

    This means that five Justice on the Court held that the Citizenship Clause provides birthright citizenship to children born in the United States to parents who are unlawfully present or temporarily present. (Four Justices disagreed.) Because a majority issued its ruling under the Citizenship Clause (and not just federal law), neither the President nor Congress can act to prohibit citizenship to children born of such parents.

    Chief Justice Roberts wrote the majority opinion, joined by Justices Sotomayor, Kagan, Barrett, and Jackson. He traced the history of birthright citizenship from English common law and concluded that “subject to the jurisdiction” only meant that a person is present in the United States (“referring to the power of the United States to govern those within its territory”), with narrow exceptions for children of foreign ministers and members of certain nineteenth-century Native American tribes (or those who raised “intersovereign concerns”). He wrote that children born of parents who are unlawfully or temporarily present in the United States do not fall within an “intersovereign” exception, and therefore they are citizens.

    Justice Jackson concurred, joined in part by Justice Sotomayor. She filled in with additional history and countered some of the points in Justice Thomas’s dissent.

    Justice Kavanaugh concurred in part and dissented in part. He argued that the EO violated federal law, but not the Constitution. (“I respectfully disagree with the Court’s constitutional holding. In my view, the Executive Order does not violate the Fourteenth Amendment.”) Although the statue and Citizenship Clause contain the same language, he contended that the Citizenship Clause, as “appl[ied] to new circumstances[,] *** support[s] additional exceptions for children born to foreign citizens unlawfully or temporarily in the country.” And despite his reading of the current statute, he also argued that “Congress could–consistent with the Fourteenth Amendment–amend [the law] or otherwise enact new legislation establishing exceptions to birthright citizenship for children born to foreign citizens unlawfully or temporarily in the country.”

    Justice Thomas wrote the principal dissent, joined by Justice Gorsuch. He traced his own history and argued that the Citizenship Clause was designed to provide citizenship for “Blacks . . . because they were Americans,” and that birthright citizenship doesn’t extend to children born to parents who are temporarily or unlawfully present.

    Justice Alito separately dissented with his own textual and historical analysis.