Even the New York Times headline suggests that the Supreme Court somehow approved of Trump’s Executive Order requiring the creation of lists of federally “approved” citizens and prioritizing the prosecution of state officials who fail to comply.

Court Allows Trump to Pursue Mail Voting Limits, for Now

SCOTUSblog was even worse.

In its 10-page per curiam decision, the Court found that the case was not yet ripe as the postal service had not yet promulgated a final rule, such that the stay imposed by Judge Indira Talwani was premature and the court lacked jurisdiction. Ironically, the decision came out on the Monday following the postal service’s publishing of its final rule the prior Friday. Oops.

Notably, now that there is a final rule from the USPS, the state plaintiffs will head back to Judge Talwani to make the same motion and, no doubt, get the same preliminary injunction, but this time in a ripened case as far as the majority is concerned.

The Court’s disposition of this application does not mean that any measure taken by the Government to implement the Order will necessarily be lawful. On that score, time will tell. But the Order itself does not harm the States, so the District Court lacked jurisdiction to bar the Government from trying to implement it. And for the reasons discussed, that injunction is likely to irreparably harm the Government if it remains in place while the appellate process runs its course.

Lest anyone be confused by the majority’s finding that the injunction will cause the government irreparable harm, the Supremes have adopted the position that anything Trump tries to do as president is entitled to a presumption that denying Trump his every whim causes such harm. What it does not mean is that the government will suffer any actual harm at all. After all, keeping the postal service delivering mail-in ballots the same way it’s always been done would strike most people as maintaining the status quo, but the Supreme Court has flipped the status quo on its head to accommodate Trump’s whimsical changes.

The more significant aspect of the quoted paragraph is that the majority admits that its ruling bears no relation to the lawfulness of Trump’s attempt to manipulate the election to his advantage. Thus, the big question here that needed answering was left untouched.

This is the gist of Justice Sonia Sotomayor’s 4-page concurrence. Final rule or proposed rule, it’s unconstitutional either way so why inject chaos into the election rather than just decide the obvious question presented?

The majority says it was speculative to think there would be a final rule at all when this suit was filed, seemingly accepting the Government’s representation that it may not actually implement the Executive Order. Yet even as the Government represents that it may not implement the Executive Order at all for purposes of defeating standing, it insists that it seeks to implement the Executive Order immediately for purposes of establishing irreparable harm. See Application 28–29 (“The irreparable harm is the government’s inability to implement the order as to the November 2026 election in the respondent States”). The Government cannot have it both ways.

If one of the fundamental purposes of the judiciary, in general, and the Supreme Court, in particular, is to decide whether the president is engaging in unconstitutional actions, does Trump v. California reflect a fundamental failure of the Court to fulfill its duty to the nation? Granted, over the past decade, the Court has studiously kicked the can down the road time after time in the apparent hope that it wouldn’t be required to fully answer the question before it and create a constitutional crisis with Trump or so outrage a significant portion of the polity as to compel them to do something drastic.

Often, the Court will grasp the escape hatch by seizing upon the weasel words “according to law” tossed into an EO to rationalize that it couldn’t possibly mean committing an unlawful act because it says otherwise.

In this case, however, the issue could not have been more clear. The Constitution doesn’t give the president any authority to dictate election procedures for the states. There was nothing about this EO that could conceivably pass constitutional muster, regardless of whether the postal serve promulgated final rules or not. The majority’s attempt to suggest otherwise, “time will tell,” was not merely ludicrous, but extremely dangerous given that the midterm elections are only a little more than two months away, and the time to get absentee ballots printed, and whether they need to be printed in conformity with the Executive Order, is now, not “time will tell.”

The interference with elections as run by the states as provided in the Constitution is a pretty big deal in a democracy. Citizens get to vote, whether they’re on Trump’s “approved citizens” list or not, and states get to decide whether and to whom mail-in ballots get sent. Except states don’t have their own postal service and so rely on the United States Postal Service to deliver mail-in ballots to those citizens states deem eligible to vote.

The time for an answer as to whether the federal postal service can overrule states and dictate who gets a mail-in ballot is now, and yet the Supreme Court chose not to answer the question. Did SCOTUS blow it?

*Tuesday Talk rules apply.