GOP embraces 'unitary executive' theory to give Trump sweeping control over mail-in voting

Federal agencies say they have yet to take steps to implement President Donald Trump’s executive order restricting voting by mail, as the Department of Justice fights a Democrat-led lawsuit against it.

The Justice Department late Friday filed documents asking a federal judge to dismiss the lawsuit and to not block the executive order on a preliminary basis because the order hasn’t been implemented. The filings marked the Trump administration’s first effort to defend the order in court.

The March 31 order directs the creation of state citizenship lists and restricts how ballots can be sent through the mail, instructions that Democrats and election experts have called unconstitutional and illegal. It comes as Trump has seized on the specter of noncitizen voting, an extremely rare phenomenon, to demand sweeping voting restrictions.

In its Friday filing, the Justice Department sought to persuade Judge Carl J. Nichols in U.S. District Court in the District of Columbia that a legal challenge is premature.

“If and when the Executive Branch takes some action to implement the Executive Order” then a lawsuit can be brought, Stephen Pezzi, a senior trial counsel in the Justice Department’s Civil Division, wrote in a court filing.

Nichols has scheduled a hearing for May 14.

No action taken, officials tell court

The DOJ’s argument relies on statements by key federal officials that the agencies affected by the order — the Department of Homeland Security, the Social Security Administration and the U.S. Postal Service — are still deliberating over how to carry out Trump’s directive. In declarations filed in court on Friday, officials at all three agencies say final decisions haven’t been made.

“As the Postal Service is still in the deliberation phase of determining how to implement the Executive Order, we have not yet published a proposed rule, nor have we reached any final decisions about the substance of a proposed rule,” Steven Monteith, the Postal Service’s chief customer and marketing officer, wrote.

The executive order directs the postmaster general, who leads the Postal Service, to propose a rule that would block states from sending ballots through the mail except to voters on lists provided by the state to the Postal Service.

The order also instructs Homeland Security to compile lists of voting-age U.S. citizens in each state with the help of the Social Security Administration. Democrats allege the Trump administration is building an unauthorized national voter list, despite the U.S. Constitution giving states the responsibility of running federal elections.

Michael Mayhew, deputy associate director of the Immigration Records and Identity Services Directorate within U.S. Citizenship and Immigration Services, wrote in a declaration that the agency “has not yet begun preparation” of state citizenship lists. USCIS is a subsidiary of Homeland Security.

At the Social Security Administration, Jessica Burns MacBride, head of program policy and data exchange, wrote that the agency hasn’t made any final decisions “about its role” in implementing the executive order.

Focus on Postal Service

The order’s opponents are especially watching the Postal Service’s response, since it is an independent corporation overseen by its Board of Governors — not the White House.

Democrats and experts on postal law say Trump has no authority to order the postmaster general to take any action. The Board of Governors hires and fires the postmaster general, and board members serve seven-year terms, helping insulate them from political pressure.

Last month, 37 Democratic U.S. senators signed a letter to Postmaster General David Steiner and the Board of Governors urging the Postal Service to not implement the executive order. The senators pointed out the president has no authority to regulate federal elections or the Postal Service.

“Like the President, the Postal Service has no authority to regulate the manner of voting in federal elections, nor who is eligible to vote by mail in such elections,” the letter says.

The Postal Service is a named defendant in the lawsuit filed by Democratic groups and leaders in Congress.

The Justice Department, which is representing the Postal Service, sidestepped questions about the president’s authority in Friday’s court filing. It called arguments about Trump’s authority over the Postal Service an “abstract legal question” that can’t be resolved before the agency takes action.

Still, Monteith appeared to nod to concerns within the Postal Service over the order’s legality while avoiding specifics.

“I am aware that deliberations are currently ongoing within the Postal Service regarding the implementation of the Executive Order,” Monteith wrote, adding that the deliberations include “legal considerations” regarding the order.

Unitary executive theory

The executive order faces at least five lawsuits, including a challenge brought by a coalition of Democratic state attorneys general led by California’s Rob Bonta. The Justice Department has not yet filed court documents defending the order in that case.

For their part, Republican attorneys general — led by Catherine Hanaway of Missouri — are defending the executive order. Their position, if adopted by courts, would give Trump sweeping control over the Postal Service.

In a May 1 court filing, the GOP attorneys general argue those challenging the executive order are unlikely to succeed in showing that Trump cannot direct the Postal Service to propose a rule. They say that federal law doesn’t specifically prohibit the president from ordering the postmaster general to put forward rules on mail ballots — and it’s unconstitutional if it does.

“The Constitution vests the entirety of the executive power in the President,” The Republican coalition says, articulating a view commonly called the unitary executive theory: the idea that Congress cannot constitutionally create agencies that exist outside of White House control.

The Republican states involved also include Alabama, Florida, Indiana, Kansas, Louisiana, Montana, Nebraska, Oklahoma, South Carolina, South Dakota and Texas.

Democrats and many constitutional law experts reject the unitary executive theory, though it has gained support among Trump-aligned Republicans as the White House seeks greater control over independent agencies.

If the U.S. Supreme Court eventually greenlights Trump’s efforts to control the Postal Service and other independent agencies, it would mark a “tremendous” change in how the federal government operates, James Campbell Jr., an attorney in the Washington, D.C., area who consults on postal law, said in an interview last month.

“What you’re basically talking about is redesigning the U.S. government,” Campbell said.