Will the Court Help Trump Steal the 2026 Election?

The Oath and The Office

This episode of 'The Oath and The Office' examines a growing threat to democratic elections, focusing on the Trump administration's attempt

Key takeaways

• The Postal Service's new rules, framed as routine mail handling changes, could effectively block valid ballots from being delivered or counted.
• The administration claims these are non-election-related postal policies, but critics argue they are a strategic effort to undermine election integrity under the guise of preventing fraud.

Main topics

• Mail-in voting restrictions
• Supreme Court shadow docket abuse

Notable quotes

"You don't have to actually have not only a violent coup, you don't have to suspend elections, you don't have to suspend Congress in order to destroy democracy. You just have to find these little ways of subtly changing the rules."

Conclusion

While the Trump administration seeks to exploit postal rules and judicial shortcuts to undermine

Transcript preview

Speaker 4 (0:09) Welcome to another episode of the Oath in the Office podcast. I'm John Fugelsang, and today we ask what happens when the formal checks on presidential power stay in place, but the administration won't stop pushing those boundaries of those checks, and what happens when the courts, Congress, the military, and the public are the institutions expected to respond. Apparently, the Postal Service has just found a brand new constitutional power, folks, deciding who gets the privilege of exercising what used to be a basic right. voting by mail. For more, let's go to the star of the oath in the office, the author of the oath in the office and the presidents and the people, everybody's favorite constitutional law professor, Corey Bretschneider. Hello, sir. Speaker 1 (0:49) Thanks so much, John. You know, when you and I started this podcast, we're about a year and a half in. The idea was a president takes an oath to preserve, protect and defend the Constitution. And this guy, this president, Donald Trump, looked like he was doing the opposite. And, you know, I've used the phrase to really emphasize the threat to democracy, self-coup, the idea of a president destroying the checks and balances. And unfortunately, rather than that being paranoid or overstated, it looks like that's exactly what's happening in this post office story, which we've been covering again and again. It's just getting worse. And you don't have to. Here's my thesis of this part of the show. But really, it's a theme that covers the second Trump presidency. You don't have to actually have not only a violent coup, you don't have to suspend elections, you don't have to suspend Congress in order to destroy democracy. You just have to find these little ways of subtly changing the rules, changing the system. And that's what's going on here, that Donald Trump working with his new CEO of the post office. somebody who seems extremely complicit in Trump's demands to destroy democracy, they've come up with a way to do it. And it's coming up with convoluted rules that they want to implement to essentially deny ballots from even being delivered in the first place or from being counted. Speaker 4 (2:13) Well, let's talk about that because you're right. It is sort of death of democracy by a thousand little cuts. And I want to begin by asking about the mail voting. The administration is saying, Corey, this isn't, an election rule. This is just a mail rule that happens to affect elections. So it's very convenient. But the administration is asking the Supreme Court to allow all new postal service rules to make it harder for Americans to exercise their right to vote, restricting different aspects of mail voting. all of it to take place really fast before the midterms, because as you know, Corey, there was no fraud when Barack Obama and Joe Biden were president. But when Donald Trump's the president, there's a lot of fraud, apparently, and Trump wants to warn us about it. So what is the fundamental constitutional question that justices are being asked to resolve here? Speaker 1 (3:01) Well, the question that the way, you know, there are really two questions depending on who's asking the questions. And that's the problem. If it was me asking the question, and this is certainly what you're going to hear from those challenging this new rule. Rule doesn't quite, you know, it's sort of abstract way of talking about what agencies, how they implement policy. This rule would really do nothing less than destroy our election system. Exactly. Syria's rule understates it. The way I would ask it is, does the President of the United States have the right to usurp the right to vote guaranteed in legislation and in the Constitution? The answer that I would give to that question is no. Now let me ask it the way the Solicitor General and the President of the United States and the CEO of the Post Office want to ask it. Does the Post Office, under the direction of the President, have the right to administer the details of how mail is delivered or not. And, you know, in that way, it sounds very innocuous. And we have a series of events. We've been covering it again. Listeners know these details, but I want to update them. We had an initial moment where a lower court judge heard about this rule and saw the danger of it and stopped it from being implemented. And the Supreme Court came in and said, hey, you can't do that. But, you know, it's too early, basically. And so they used this procedural maneuver of saying that the issue wasn't. right. It wasn't time to hear it in order to really allow it to move forward. Well, now they've implemented it. A lower court judge has stopped it. And the administration is again now, as I predicted last week, now it's happening, going to the Supreme Court and saying, help us help stop these lower court judges who are trying to so-called protect voting rights. No, that is what they're doing. And the administration is saying to the Supreme Court, we need an order that allows us to implement this. quote unquote rule. What is the rule? Again, it's to really deny the delivery of ballots that are valid, to deny them from being delivered in the first place and certainly from being delivered once they've been cast. We Speaker 4 (5:07) have to keep on stressing there is no fraud that could ever affect the outcome of any elections that these policies are designed to fix, just as. With voter ID laws, you know that those are racist scams because there has never been an election in our country where the outcome was affected by voter impersonation. The only reason you have voter ID laws is to prevent voter impersonation. But the mainstream liberal media doesn't ask these questions too much. And now with this one, Corey, it's basically an emergency application saying, can we please change the rules right before the election and then litigate whether we were allowed to change them after the election? I mean. That's it, right? Like they're saying that the Postal Service is just settling mail handling requirements. They're not regulating elections. It's just doing what they do. It just happens to involve ballots, right? I mean, why does that distinction matter constitutionally? Speaker 1 (5:59) Well, you know, I mean, I'll just use the argument, you know, the Solicitor General keeps making these arguments in the Supreme Court of why they should intervene on the behalf of the president. And he's saying things like, look, the president of the United States, if he fears that munitions or dynamite is being sent through the mail, he's got to act to protect our safety. And that's not a matter of law or a matter of the Constitution or a matter of rights. It's just the president's judgment. And the Solicitor General is saying essentially that's what's happening here, too. Now, here's the problem. What's the you know, what's the equivalent of the dynamite being mailed through sent through the mail? And what they're saying is it's these so-called fraudulent ballots. Oh, yeah. What fraud? Where is this? It goes back to the same theme of how Trump tried to steal the election. You said something else, John, that's really important. I want to. always connect the dots between our different podcasts. We're honored to have Stacey Abrams, one of the best out there when it comes to protecting democracy, about the SAVE Act. And she was campaigning, as we were, to stop this. act being passed by Congress, which would have created, you know, as Stacey Abrams made it very clear on our show, you know, all localities really require some form of ID. But what the SAVE Act was doing was finding those IDs that, by and large, Democratic voters didn't have. Now, that never passed. So what did Trump have to do? He still wants to steal the election. He can't cancel it. At least he's decided not to try that. He sees that that would cause too much chaos and resistance. So he's come up with this other scheme, this so-called rule, which would essentially deny ballots from being mailed. And, you know, it's something like a third of Americans cast their ballots through the mail. So we're not talking about a small amount here. Speaker 4 (7:46) And, of course, the Constitution gives Congress election authority. And the administration's argument seems to be, well, somewhere in the Postal Service Manual, there's an appendix. And that means just as much. Right. I mean, like like Congress has not delegated. the Postal Service authority to regulate elections in this way. That's what I keep coming back to, okay? So, you know, when did Congress cede control over this? I mean, what does the Constitution actually say about who has authority over elections? Speaker 1 (8:15) Right. I mean, there's no, you know, when it comes to, and that is, I should say, what repeatedly the lower courts have said, and district courts, and in this case, there was, you know, a decision that essentially said that, that Elections, you know, are a combined authority of localities. Congress also has power over elections. And although they might have the power to say, hey, we want the post office to have sole decision over voter fraud or something like that. They didn't say anything of the sort. There's been no legislation. And in fact, the legislation that Trump tried to pass through Congress to destroy our democracy, the SAVE Act, didn't pass. So now what you're really asking is, like, isn't this obvious? Like, aren't we, you know, in a moment in which the Supreme Court, of course, should come in. OK, they said it wasn't right now that it is being implemented or they're trying to implement it. I should say, too, just to update people, this new rule, which would Up until our elections has been stopped by the lower courts. And Justice Jackson, who's got initial control over the procedure at the Supreme Court in this particular case, has not lifted that. So the post office is now being prohibited from using the rule. So but why are we even talking about this? Why is the Supreme Court even going to consider it? Well, there is this idea that goes back to the Reagan White House and lawyers like now Justice Alito, then lawyer Alito, White House lawyer Alito, now Justice Roberts, then White House lawyer Roberts, who wanted to emphasize the complete control of the president over all the administrative agencies, including the post office. So what they're trying to say is this isn't a legal decision. We don't need... power to be handed over by Congress. It's just an administrative decision. And I gave the example before, you know, of the president's control over, you know, does he write on white paper or yellow paper that he orders for, you know, the White House? I'm not sure he's writing on any legal paths, but let's imagine a hypothetical where this president did write notes. If he chooses yellow over white, they're like, that's not a matter of law. That's just an administrative decision from within the executive branch. Well, that idea, which I've been stressing, is now going to the Supreme Court. And they have to decide whether or not this is a matter of law. In other words, did Congress delegate the power to decide elections? They clearly didn't. Or is this more of an administrative decision? So that's a real example that I gave about. worrying about explosives being sent through the post office. And they're like, well, that would be an administrative decision. And this is one, too. And I would say it's got no chance. It's a crazy argument. Except look at who the justices are. Speaker 3 (11:02) They are the same Speaker 1 (11:03) people who are pushing for this idea of more administrative control over the agencies, over the post office. You know, they're the designers, the lawyers who design this idea. So is it undermining law? Absolutely. Is it undermining Congress? Totally. But yet they're able to do it by just saying, no, this is just an administrative decision. Speaker 4 (11:24) Well, I mean, this is the same Supreme Court where we know from the birthright citizenship case that three of them think the president. should be allowed to overturn the Constitution with an executive order if that president's a Republican. So in many ways, it just seems like he's appealing to an umpire he hopes will be friendly. Because is there a constitutional principle here that goes beyond mail voting? I mean, it seems to be about whether, again, an executive agency can just discover brand new powers inside some old statute. Speaker 1 (11:56) Yeah, I mean, you know, I just want to emphasize, you hear me talk about hope all the time. And on birthright citizenship, if you want to go, people can go back and listen to it. We had Cecilia Wang, who argued the case, but before you and I discussed it extensively. And what I said, and I was vindicated by what they did is, look, this is too embarrassing for them to take the side of the president. It says on birthright citizenship, right in the 14th Amendment, if you're born in the United States, then you are a citizen. And yes, it uses the phrase subject to the jury. But that's a very narrow idea. It's Speaker 4 (12:28) not Speaker 1 (12:28) embarrassing for white Speaker 4 (12:29) supremacists, Professor. Speaker 1 (12:30) It's not embarrassing for white supremacists Speaker 4 (12:32) at all. Speaker 1 (12:32) It is just order. But the Supreme Court there did what I predicted, right? They struck it down. Here, we're in a different world. You know, there is an idea of this unitary executive, increasing executive presidential control specifically over the agencies on administrative decisions. that they really have developed these justices, including justices who voted to strike down birthright citizenship, Justice Roberts in particular. He loves this idea. He loves this idea of the unitary executive control over executive agencies. What's the principle on the other side? We talked about laws passed by Congress. It's called separation of powers. It's called checks and balances. The idea that there's a limit when it comes to the executive branch and that limit, by the way, Madison. tried and failed to spell this out in an amendment, I wish he did, that emphasized it's a balance of powers, that you have to make laws in order to implement them. And that's not how Roberts sees it. They really emphasize this. vast and essentially inherent power of the executive. The executive power is vested in one person, the Constitution says, a president. And they're going to use this, well, malarkey, but I gave you the legal argument for this malarkey, in order to, you know, do what? To undermine the law, to try to steal our election. That's why I'm so worried at this moment. Yeah. Let me say one more sentence, John. Sometimes they do this through opinions, but this well might be done just through what's known as an emergency. order through a decision where we never really get to see why they did it. They have been reluctant under this shadow docket, these emergency orders to give us reasons. And, you know, I have no doubt Justice Jackson will give us her reasons, but it may well be a dissent. Speaker 4 (14:17) Well, yeah. And I mean, that brings us to the crux of the thing, right? What changes when the Supreme Court is asked to intervene on an emergency basis? rather than through the ordinary appeals process, right? This brings us back. You said the shadow docket. We got to tell people once again what that means. Why is emergency litigation, Corey, potentially different from the ordinary, usual legal process of constitutional adjudication? Speaker 1 (14:42) Yeah, we're combining two really disturbing trends that's understating it of the Supreme Court. One is The destruction of separation of powers and the tendency to ignore the law in favor of this idea that there are all these solely executive functions, the president controlling the agencies, controlling the post office. And here's what that's disturbingly combined with. a failure of the court to give its reasons. One of the main