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President Trump’s 2026 executive order on elections is back before the Supreme Court, which two weeks earlier had declined, on standing and ripeness grounds, to rule on the merits of what it characterized as only “an internal directive from the President to his subordinates.” One prong of the order, a Postal Service proposal affecting election mail, is now a final rule, and the agency is reportedly rushing to implement it. A lower court has preliminarily enjoined the rule, and the government has asked the Supreme Court for a stay.
But the issuance of the final Postal Service rule and the current matter before the Court should not distract attention from the significance for this election cycle of the earlier interim order ruling. That ruling introduces serious uncertainties into the remaining weeks before the election if the executive branch launches another eleventh-hour intervention by executive order and the Court once more adopts an “internal directive” analysis and declines to hear the challenge.
“Internal” Executive Branch Action
In concluding that the executive order was “an internal directive from the President to his subordinates,” the Court emphasized that the order “neither requires nor forbids anything of anyone outside the Executive Branch.” A legal challenge before the agencies took formal action pursuant to the order was premature and would constitute “intrusion into the Executive Branch’s internal operations.”
This seems to me to be a questionable characterization of the effect of an executive order of this nature. More broadly, it fails to come to terms with the “injury in fact” —“concrete and particularized” rather than merely “conjectural or hypothetical”—which supports standing and which, on a record uncontested by the government, the executive order inflicted on the states in their administration of elections. The Court’s dismissal of these injuries was especially striking in light of its recognition in another decision in the last Term that standing principles must be applied differently to the electoral process—“a process of the most fundamental significance under our constitutional structure.” By emphasizing the “internal” character of the executive order and the absence of immediately applicable prohibitions and requirements, the Court in Trump v. California abandoned considerations particularly relevant to election law cases.
As Lisa Manheim and Kathryn Watts have described, executive orders may be broadly sorted into two categories: those that “directly regulate private actors outside of the executive branch… [altering] legal rights or obligations,” and others treated as “nonlegally binding” that the president uses as a “communication tool, enabling the chief executive to tell executive-branch officers what to do, or not to do, as they carry out their duties and administer the nation’s laws.” In the second case, a president also uses executive orders as a “communication tool” to stress that he or she is taking meaningful action of which the public and affected parties should take note. It is not a merely internal message, and the audience extends beyond the executive branch.
At the time it issued the executive order, the White House published an accompanying “fact sheet” to describe it as the president taking “decisive action to prevent non-citizens from voting in Federal elections and to protect the security of mail-in and absentee ballots.” Moreover, the executive order purported to support this claim with specific findings, among them that concrete “additional measures” are “necessary” to “enhance election integrity via the United States Mail.” That the USPS responded in the first instance with just a “proposed” rulemaking went only so far toward weakening the significance of the executive order: the force of the message it intended to convey and its effects outside the executive branch.
For the election officials planning for the midterms, the executive order necessarily had meaningful if not “decisive” effects. The lower court found, and amici before the Supreme Court stressed, that election officials have had no choice but to divert time and resources to prepare for the implementation of the order. In the Court’s view, however, those officials could have somehow ignored the order until the agencies functioning at the president’s direction took final action. It treated the states’ decision to spend resources for planning as effectively voluntary, a choice to inflict “harm on themselves based on their fears of hypothetical future harm that is not certainly impending.”
What Happened to Bost?
But the right assessment of the effect of the order on the states seems to call most fundamentally for attention to that context: the conduct of elections. In a standing case in the last Term, in Bost v. Illinois State Board of Elections, the Court put great weight on just that context—the operation of the electoral process. It was in that ruling that the Court stressed the electoral stakes as “of the most fundamental significance under our constitutional structure.” It held that a candidate could establish standing to sue a state over an election count rule because candidates always have a particular interest in “a fair process.” The Court declined to require the candidate to wait and see if the rule in question might directly affect his chances of winning, at which point he could have asserted a more standard form of particularized injury. The Court also noted that requiring the candidate to defer legal action until later in the cycle risked“late-breaking, court-ordered rule changes” that can “result in voter confusion and consequent incentive to remain away from the polls.” The result of delay would be diminished voter “[c]onfidence in the integrity of our electoral processes. . . essential to the functioning of our participatory democracy.” Better that the courts become involved sooner rather than later.
The concern with late-cycle, federal court-ordered rule changes—sometimes called the “Purcell principle” after the case in which it was first articulated—raises complex questions that I will not take up here. For present purposes, it is notable as one of the considerations that, in Bost, favored candidates’ immediate access to the courts to litigate their enduring interest in a fair process.
The analysis in Bost, as informed by Purcell, is in clear tension with the one the Court adopted in Trump v. California, where the Court denied standing to states that possess at the very least a comparable interest in the fair and lawful administration of elections, and in an earlier rather than later resolution of their claims on a compressed election-year timetable. The Court has stressed on other occasions that states have “strong,” protectable interests in adopting “generally applicable and evenhanded restrictions that protect the integrity and reliability of the electoral process itself”; in “orderly, fair, and honest elections ‘rather than chaos’”; in “maintaining the integrity of the political process”; and in avoiding “voter confusion.” In Trump v. California, the states could show that they were incurring “pocketbook injury” affecting those interests as they expended resources to plan for potential agency actions pursuant to the order. But the candidate in Bost was not held to any such requirement: his interest in the abstractly formulated “fair process” was sufficient.
It is curious that only Justice Jackson raised the question of how the majority’s analysis could be consistent with Bost. Neither the majority nor the separate dissent from Justice Sotomayor, joined by Justice Kagan, engaged with Bost. The significance of that case for late-stage legal interventions in the electoral process seems now in doubt, and it is not at all clear why. The majority may believe that it best addresses the merits when the issue before it is definitively framed, as when a case involves a legally operative rule that imposes concrete prohibitions or requirements affecting parties outside the executive branch. The reasoning of Bost would then have no bearing if, in an election-related case, an executive order does not effect a rule of that kind and is, in that sense, only “internal.”
What Is at Stake in the Coming Weeks: Hypotheticals
A pair of hypotheticals—which, unfortunately, are not extreme stretches of the imagination—will illustrate the serious problems that this approach could present in the next two months.
1) One month before the election, the president issues another executive order directing the Secretary of Homeland Security and the head of U.S. Immigration and Customs Enforcement to coordinate with the Department of Justice to plan for the deployment of ICE agents to polling locations “as feasible and consistent with law” to guard against non-citizen voting. It includes affirmative factual findings similar to those the president included in his address to the nation about the corruption and vulnerability of American voting systems. The president alleges that non-citizens vote in massive numbers sufficient to affect the outcome of the elections, and that federal government action is “necessary” to prevent this illegal voting. But the administration is ready to contend that, as the Court found in Trump v. California, the order is internal, a communication to subordinates to prepare on a contingent basis for actions they might not take.
2) Two weeks before the election, the president delivers another national address to bring to the nation’s attention alleged intelligence that foreign governments, in aid of their “Antifa” or communist allies, may act to undermine this year’s elections and rig them to ensure that Democrats win. He announces a new order that directs the Secretary of Defense to prepare, in cooperation with the Department of Homeland Security, contingent plans to address, “by all lawful means,” these threats to the electoral process, including by the deployment of regular armed forces under the Insurrection Act. The Attorney General briefs reporters the following morning on the president’s broad authority under the Insurrection Act. He states that the president is hoping to avoid exceptional measures but, “in an abundance of caution,” is closely consulting with the Department of Justice on his constitutional powers and legal options.
Would these executive branch actions qualify as “internal” communication tools with no legal effect on third parties—that is, the states? Without any question, state officials would have to plan immediately for the potential disruption to polling places in the event of the threatened ICE and regular armed forces deployments—and for emergency litigation. Voter alarm over the prospect of an unprecedented executive branch intervention in the elections would skyrocket. Officials would have to answer voters’ urgent questions about what this order portends for the operation and security of their polling places. Political parties and their candidates would have to prepare with similar urgency for communications with their voters and major potential adjustments in their turn-out programs.
Of course, executive interventions in the coming weeks might not materialize. Or they could occur in less dramatic form than those depicted hypothetically here. And the Court will always bring to election cases, as to others, a natural concern that capacious standing to challenge executive action of an “internal” nature, even in the election context, could become a slippery slope, inviting more litigation and sometimes hard line-drawing in deciding when the courts should hear the challenges.
But the Bost Court declined to adopt Justice Barrett’s view, expressed in her concurrence, that “elections are important, but so are many things in life.” It affirmed that, for standing purposes, elections are different, and that, on a fixed election timetable, the timeliness of judicial relief matters. The choice the Justices may face in the coming weeks is between accepting those core propositions, which entails working through what they mean in particular cases and drawing the hard lines, or deciding that elections are not all that different after all. For the upcoming elections, it is a deeply consequential choice.
Note: I co-chair the Bipartisan American Election Project, which filed an amicus brief in Trump v. California supporting the states’ standing. The views expressed here are mine alone.