Believing in something means defending what it stands for even when (perhaps especially when) you will be criticized for doing so. This is especially true in politics, where siren songs constantly pull people to sacrifice what they believe in on the altar of power. Resilience to the pull of political power is part of what is required to keep oneself grounded in principle.
Believing in the Constitution, then, means defending it when either Democrats or Republicans are pushing against the principles of that founding American document. That is exactly what happened when President Trump announced his intention to use an executive order to “get rid of mail-in ballots” before the 2026 midterm elections.
What the U.S. Constitution says
The U.S. Constitution enumerates powers to both states and Congress when it comes to elections. Article I, Section 4 of the Constitution says that the time, place, and manner “of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof.” This is the state provision. It goes on to say that “the Congress may at any time by Law make or alter such Regulations,” with an exception regarding U.S. Senators. This is the congressional provision.
Now apply that to President Trump’s announcement. Notice anything missing in these provisions in the Constitution? Any mention at all of the President of the United States.
The U.S. Constitution excludes the President from its delegation of authority to change state laws regarding elections. This omission is significant, as the framers could easily have empowered the President of the United States to change state election laws. After all, the office has its own dedicated section in the Constitution. Instead, the framers chose explicitly to place the federal power to alter state election laws in Article 1, which is the portion of the Constitution about Congress’s powers. That is problematic for President Trump’s desire to end vote-by-mail via executive order.
Does federal law ban vote by mail?
The Trump administration may argue in its forthcoming order either that: (1) the administration’s interpretation of current federal election law (already enacted by Congress) empowers it to explicitly end vote by mail, or (2) current federal law is in conflict with common vote by mail procedures, and therefore states cannot administer mail-in voting. Either is constitutionally dubious.
Federal election law, as a matter of plain fact, does not outlaw mail-in voting. If administration lawyers sought to stretch the meaning of federal law to the breaking point in order to imply the authority to ban vote by mail, it would be a flimsy federal foundation for an executive order.
However, the administration may see a sound legal basis in current federal laws like the National Voter Registration Act (NVRA) or Help America Vote Act (HAVA) to end vote-by-mail. It might argue in the forthcoming order that procedures required to administer mail-in voting are in insurmountable conflict with certain provisions of NVRA and/or HAVA. Therefore, vote-by-mail would not be a legal option under federal law and the U.S. Constitution.
That would be a controversial legal opinion, to say the least. It is a legal fight that the administration is likely to lose in the courts. States have been successfully administering mail-in voting for decades without legal conflicts with federal election law; when it comes to the U.S. Supreme Court, history matters.
Perhaps history wouldn’t matter as much if federal law plainly and explicitly banned vote-by-mail, but it does not. So, introducing the novel legal argument that federal laws in place for more than a generation actually banned vote by mail this whole time, and the legal community just didn’t realize it, might be reasonably met with more than a little skepticism by the courts.
To see why, simply consider the logical ramifications of the competing arguments for judges. A logical conclusion from the idea that generation-old federal laws actually banned vote by mail is that the last 20-30 years of federal and state laws may potentially be null and void, since they were enacted by lawmakers chosen using election methods that were illegal, unbeknownst to everyone.
On the other hand, perhaps the administration is trying to enact via decree a policy agenda that it cannot accomplish through the regular, constitutional lawmaking processes that Congress follows. Given recent evidence of many such attempts from presidents of all partisan stripes in recent decades, this is a much more reasonable and sensible conclusion.
Whether looking at the plain language of the U.S. Constitution or potential interpretations of federal election law, a controversial executive order to explicitly or effectively ban vote-by-mail will likely be deemed unconstitutional. Anything is possible in politics today, of course. But those who believe in the U.S. Constitution should be skeptical of the idea that the President of the United States can unilaterally end mail-in voting in the states, which has operated in harmony with federal law for decades.
