Nonmailable Matter

Key takeaways

• Trump's executive order (Section 3) directed the Postal Service to require every state's mail-in ballot to carry a USPS election-mail logo, a unique per-voter barcode, and pre-approved design specs, and to force election officials to upload every mail voter's name and address to a new federal portal before ballots could go out. Any ballot not meeting these specs would simply be returned undelivered.
• The order has no constitutional footing: the Elections Clause gives states, not the president, primary control over how federal elections are run, and Congress (not the executive) holds the postal power. The Postal Service's fallback argument, that a vague grant to make rules "necessary in the execution of its functions" covers this, mirrors arguments the Supreme Court already rejected in the Trump tariffs case and Biden's student-loan forgiveness case, where broad language didn't imply the specific power claimed.
• The "non-mailable matter" doctrine (illustrated by a 1912 rigged piano-contest lottery case) shows Congress must explicitly designate what the Postal Service can refuse to deliver—lottery tickets, poisons, explosives, "infernal machines" (bombs). Legally cast mail-in ballots from registered voters don't fit any category Congress has authorized, so the Postal Service can't unilaterally add them.
• A whistleblower told Senator Blumenthal in late August that the Postal Service's new ballot-tracking portal was "rushed, risky and haphazard," built in about three months versus the three years it took (and still failed) to launch the ACA insurance portal; raising real risk of what the whistleblower called a "catastrophic failure" derailing the midterms.
• The case's outcome hinged less on the merits than on procedural doctrine: the Supreme Court first killed the states' April lawsuit on "ripeness" grounds (too early, since no final rule existed yet), then after the Postal Service issued a final rule and a new suit produced a fresh injunction, the Court denied Trump's emergency stay request on September 14th, explicitly stating the government was "unlikely to succeed on the merits."
• Roughly a third of the 2024 electorate voted by mail (up from 21% in 2016), and mail voters lean Democratic, making this a targeted effort to suppress turnout ahead of midterms where Trump's approval sits in the 30s and Democrats are favored to retake the House; which would bring subpoena power over Trump family finances, pardons, and the Epstein files.

Notable moments

• The 1912 Armstrong Bird Music Company piano-contest flyer: contestants submitted answers burned into wood and stitched into pillow embroidery to win a "$350" piano that cost the company $130 wholesale.
• "The Constitution gives no authority to the president to regulate federal elections. None. This isn't even a close question."
• Justice Jackson's dissent calling the ripeness bind a "Kafkaesque nightmare" for parties trying to time an election lawsuit correctly.
• The Supreme Court's entire September 14th ruling: "The application for stay is denied... the equitable factors applicable for obtaining emergency relief from this court do not favor a stay."
• Justice Alito, joined by Thomas, dissenting by blaming the states for the "cloud" over the government's rule; even though the same states had been told months earlier they sued too early.
• Trump's response on social media after the ruling: calling the justices "merely a shell of their original selves" and denying he'd have chosen them.
• The host's aside on federal law's list of non-mailable items, including "infernal machines"; the old legal term for bombs.

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