A couple weeks ago, we wrote about the USPS whistleblower who revealed that the Postal Service had violated a preliminary injunction from a Massachusetts court in preparing to implement a horrifying Trump executive order designed to get the USPS to block the mailing of many mail-in ballots. We won’t go through all the details again, but there have been two big developments since then, and together they suggest the Trump plan isn’t going anywhere, especially since the Supreme Court is now letting the Massachusetts injunction remain in effect.
First, another judge — Carl Nichols, a Trump appointee — also issued an injunction on Sunday night, holding that the Postal Service had blown past its statutory authority — the Postal Reorganization Act lets it move mail, not run voter data portals — and that the rule would create chaos in the middle of the midterms:
… the public has a “strong interest in exercising the fundamental political right to vote.” Purcell v. Gonzalez, 549 U.S. 1, 4 (2006) (internal quotation marks omitted). For the reasons discussed above, Plaintiffs have demonstrated that, absent an injunction, there is an increased risk that a significant number of otherwise appropriate absentee or mail-in ballots will ultimately not be counted in the upcoming elections. Supra Section II.B. The public has a strong interest in ensuring that doesn’t happen.
On the other side of the ledger, the Federal Government does not point to any record evidence that there will be significant fraud in the upcoming elections in the event the Court enters preliminary injunctive relief. That’s perhaps not surprising, since the Government’s position is that the Final Rule is just a “regulation of the U.S. mail, and a modest one at that.”
But the bigger showdown was at the Supreme Court, where the government had asked for a stay of the earlier injunctions — the ones the whistleblower says USPS was already violating. On Monday evening, the Court (perhaps surprisingly) said no, leaving the injunctions in place and the new rules blocked. No vote is shown, and no real reasoning is given for the decision, so we don’t fully know how strongly the court feels about this, but there are a few indicators.
Justice Kavanaugh wrote a brief one-paragraph concurrence, basically agreeing that letting the USPS implement this rule, at this point, this close to the midterms would be chaotic:
In my view, based on the briefing the Court has received at this interim stage, there is at least a fair prospect that the final rule falls within the Postal Service’s statutory authority. See 39 U. S. C. §401(2). But applying the rule in the 2026 elections would be arbitrary and capricious in violation of the Administrative Procedure Act because state and local election officials do not have sufficient time to reasonably implement the rule before the elections
For what it’s worth, this is a potentially interesting point of debate — the Nichols decision (and the Alito dissent) argue that the USPS isn’t subject to the APA, but the underlying point about the chaos for the 2026 election gets both to the same point.
But the really crazy bit is Justice Alito’s dissent, joined only by Justice Thomas, suggesting that the vote here may have been seven to two. Alito and Thomas are, by a wide margin, the most reliable adherents to the “President Trump gets to do absolutely everything he wants, but when Democrats are in the White House they have no power at all” school of jurisprudence.
It’s honestly absurd how Alito’s rulings read differently depending on which party is in the White House. For example, let’s just go back a few years to 2023 and the US v. Texas case. Here’s Alito in that, when a Democrat is in the White House, decrying the idea that the executive branch can do things without explicit congressional approval:
As I will explain, nothing in our precedents even remotely supports this grossly inflated conception of “executive Power,” U. S. Const., Art. II, §1, which seriously infringes the “legislative Powers” that the Constitution grants to Congress, Art. I, §1.
Got it? When Democrats are in power, the idea of “executive power” is “grossly inflated.” When Trump is in power, it’s suddenly how dare a state challenge the executive’s authority? Here’s how he describes that same executive power this week:
The Postal Service has broad authority to regulate the mail. It holds the “general powers” to “adopt, amend, and repeal such rules and regulations, not inconsistent with this title, as may be necessary in the execution of its functions under this title and such other functions as may be assigned to [it] under any provisions of law outside of this title.” 39 U. S. C. §401(2). Through this provision, Congress has “broadly empowered [the Postal Service] to adopt rules and regulations.”
Anyway, Alito’s dissent gets even more bizarre. In exploring whether or not there is irreparable harm, he claims that the Government has “a strong interest” in enforcing this rule, which Trump put in place explicitly to fight mail-in ballot fraud — a problem researchers keep looking for and failing to find. An American Statistical Association analysis of 2,281 fraud cases over two decades found that states that moved to mail voting saw no increase in fraud whatsoever, with rates running well under one case per million eligible voters. As for how this rule would disenfranchise millions of voters? Well, that’s a sacrifice Alito is not too concerned about:
As for the equities, the Government has a strong interest in enforcing the rule, and implementing it will also “enhance the visibility of Federal Ballot Mail” in order to better detect election fraud. 91 Fed. Reg. 54972. On the other side of the balance, the plaintiff States invoke the practical effects of implementing the rule close to the midterm elections. I take that problem very seriously, but it is not enough to convince me to deny the application.
On the one hand, there’s a completely fabricated non-existent problem that is a pretext for suppressing the vote. On the other hand, there’s the fact that we’ll deny millions of Americans their constitutionally-guaranteed right to vote, but that doesn’t sway good ol’ Samuel Alito.
Alito, more than any other Justice, has given up any pretense of even pretending that he’s on the Court to be a neutral arbiter. He knows his job is to rubber stamp whatever fascist nonsense Donald Trump is pushing, and he’s going to continue to do so as much as he can.