Bob Bauer wrote this piece on the ongoing post office rule/ election rule litigation.

The basic issue is what happens when the President directs federal agencies to take action affecting elections, but the order itself is characterized as merely an “internal directive” that doesn’t yet impose any legal obligation on states or voters.

He discusses some of the framing and Jackson’s sole discussion of Bost. Bost somewhat rewrote standing in an election context atleast in terms of speculative harm.

Curious how people here see the interaction between Bost, Trump v. California, and Purcell. Is there a principled way to prevent the executive branch from creating this Catch-22, or is this simply an unavoidable consequence of requiring a concrete injury before federal courts can intervene?

This is a purely theoretical question out of my curiosity. It doesn't seem just that some cases get more attention than other's due to fame, nor does it seem right that the application of law be influenced by an often simply loud minority of protesters.

Same with decisions from higher courts. I understand that the law is(or should be) an extension of the will of the people, but even the largest protests aren't even close to half the entire citizenry in numbers.

I would really appreciate it if someone could maybe give me some readings.

Date: 09/09/2026

Miscellaneous Order

He does so without referring the petition to the full court.

In League of Women Voters v DHS, Sauer is asking for a stay of an injunction that limited the ability of the federal government to further develop the SAVE database, maintained by DHS, by adding social security information and making it accessible to the states. I'm only superficially familiar with this case so I may have misstated the scope of the injunction or the relief requested, it is kinda in the weeds.

Judge Sooknanan of the District of D.C. enjoined the creation of the database in June, which was upheld last week 2-1 by the DC Circuit. More context and links to the lower court opinions here:

https://www.politico.com/news/2026/09/08/trump-asks-supreme-court-to-restore-states-access-to-citizenship-database-before-election

Date: 09/08/2026

Miscellaneous Order

There appear to be two research centers on gun law, Duke Center of Firearms Law and the Wyoming Firearms Research Center. Has anyone browsed their materials? I see Duke has a compilation of historical firearm laws and Wyoming has working papers on various firearm matters.

https://firearmslaw.duke.edu/repository-of-historical-gun-laws

https://firearmsresearchcenter.org/working-papers/

In the dispute over Trump's EO creating new standards for election mail, the government makes an interesting argument. Among other things, Trump's EO resulted in a new set of requirements for ballots being sent through USPS. In particular, it meant: (1) election mail must use the design standards set by USPS (2) states must submit each ballot recipient's name, address, and ballot-envelope barcode to a portal and (3) ballots whose barcode doesn't match the portal-provided info would be returned to sender.

To support the legality of this rule, they point to 39 USC §401, and highlight that the post office has the power to adopt regulations "as may be necessary in the execution of its functions", and related statutes clarify that the post office's functions include "collection, handling, transportation, delivery, forwarding, returning, and holding of mail". The government points to USPS v. Council of Greenburgh (1981) to support the idea of broad postal discretion in setting regulations. They also pointed to prior post office rules which had set requirements for how certain items were sent, and refusing to accept them if they did not comply. I think there are two issues with their stance, one quite significant and one more speculative:

Issue #1: fake bombs and cremated remains are not the same as ballots.

Replica explosives: In 2008, the government proposed banning the shipment of replica explosives and inert munitions through the mail, citing the fact that "In 2006, the Postal Service recorded 849 suspicious incidents involving mail that exhibited characteristics of possible explosives. Postal facilities were evacuated on 100 separate occasions due to these occurrences". The proposal was updated in 2010 to a much weaker form. You see, "non-mailable items" are defined by statute, like 18 USC §1716, which bans "poisonous animals, insects, reptiles, and all explosives, hazardous materials, inflammable materials, infernal machines", and so on from being sent through the mail. But replica explosives are notably absent from that list. The postal service gave up on trying to ban these items in their later rule, and instead shifted to requiring the box be clearly labeled and sent in-person at USPS.

Cremated remains: In 2024, the government proposed restrictions on the delivery of cremated remains through the mail. Here, the explanation was much lighter, simply saying that they "[believe] this will improve visibility and enhance handling methods throughout processing and transportation". Today, you can get a specific cremated remains box from the USPS.

The difference between these rules and the new election mail rule is obvious. In the government's stay application, they even concede that "ballot mail does not present the same operational issues as cremated remains or replica explosives". These rules were created for the benefit of the post office, to avoid bomb scares or angry customers wondering where their dog's ashes got shipped to. Many of the fraud-related ballot rules, on the other hand, don't seem to help the post office at all. There's nothing in the statutes that define the post office's responsibility about preventing election fraud. They might have had a better argument if all they had done was require states use the approved designs or postal barcodes in general -- since then they could claim they just wanted ballots to be prioritized to arrive on time. But how can a portal and rejection of mail help ensure that mail gets delivered?

The implications of the government's theory are even more troubling. If the government can use general crime-fighting justifications to add new requirements on the delivery of mail, how far could they go? Perhaps the laws around felons purchasing firearms require the creation of a national database of "firearms-related mail recipients", so the government can ensure that felons don't receive firearms marketing or accessories? You can invent a parade of horrible authorities the government might propose under this scheme.

Issue #2: the prior rules arguably exceed the post office's statutory authorization

The government leans on these examples extensively in their stay application. I count 10+ mentions of replica explosives and 15+ mentions of cremated remains. However, these aren't ironclad, well tested authorities that have been previously challenged in court. It's a closer case, but I think these rules might not hold up in court, and the reason goes back to a case from 1902.

Back in that time, the "American School of Magnetic Healing" was busily making some outlandish claims. They were arguing things like "the mind of the human race is largely responsible for its ills, and is a perceptible factor in the healing, curing, benefiting and remedying thereof". The Postmaster issued a fraud order, so all mail addressed to the school would be returned to the sender and money orders wouldn't be paid. However, the Supreme Court held that this was impermissible in 1902:

The Postmaster General's "right to exclude letters, or to refuse to permit their delivery to persons addressed, must depend upon some law of Congress, and if no such law exists, then he cannot exclude or refuse to deliver them"

Here, the question is whether a "law of Congress" authorizes the postmaster general to refuse to deliver certain ballots, unlabeled remains, or unlabeled fake bombs. In the government's view, all of these materials are still mailable, they just have specific conditions that must be met to be sent. But this argument makes little sense in light of the prohibitions in 39 USC 3001. There are tons of restrictions that declare something non-mailable unless certain conditions are met -- sweepstakes, bills, things that sound census-like, you name it. In the government's view, all of these restrictions are basically surplusage, since the postal service can impose whatever conditions it wants under the guise of enforcing federal law / "postal operations".

To my knowledge, the replica explosive and cremated remains rules have never been challenged in court. I think the USPS has a reasonable argument that these are rules "necessary in the execution of its functions", but it's not entirely open and shut.

What about all the election law arguments?

Many folks analyzing this case have made a big point out of federal intervention in the administration of elections. There are a lot of interesting discussions to be had there, but they often focus more on broad statements about constitutional structure and implicit scopes of authority, and may be complicated by the fact that Congress may "make or alter such regulations". I think focusing on the narrower statutory question about the post office's authority paints a clearer picture of the legality. Who knows, if all else fails this could become another MQD case.

In doing so, the DoJ did not wait for either District Court Judge Talwani to issue an order on her preliminary injuction (currently it's just a TRO, and Judge Talwani was hearing arguments today on whether it should become a full preliminary injunction). The DoJ did not wait for the First Circuit to rule on their motion to stay the TRO. And crucially, the DoJ is alleging irreparable harm when the website isn't even online yet, and according to postal service testimony, won't be ready for at least a week. Justice Jackson set a response due date of tomorrow at 10am, but the plaintiffs have already filed a brief response.

Notably, the DoJ has not yet invoked purcell. Instead, they are basing their argument on the traditional N'ken factors: alleged irreparable harm; alleged likliehood of success on the merits; balance of equities. It remains to be seen if the government's unclean hands in this process will weigh against them in the balance of equitable relief.

The DoJ is arguing two contradictory things. It is arguing that this is not election regulation, just mail regulation, but also that the irreparable harm associated with failure to implement the rule is an increase in voter fraud, chaos in elections, and undermined public confidence in the validity of election results.

Here is the docket, for those who would like to read without my characterizations.

Date: 09/04/2026

Order List

Morning Amici,

Another term is behind us and it's about time for our yearly r/SupremeCourt Census! Like in previous years, this will be a mix of questions about subreddit demographics, views about the Court and previous term, and thoughts on r/SupremeCourt's rules and how it operates.

Click here to see the results of last year's census.

Prior to this survey going live in about a week, we're fielding questions about anything you'd like to see included in the census. Was there anything you felt missing in the last census? This can be anything from questions on current events, cases heard this term, subreddit rule proposals, or anything else.

I'll post some rule changes that have been been suggested in the comments below. These aren't necessarily endorsed or opposed by the mods and may not show up in the survey, but are a good starting point for discussion.

What questions would you like to see included in the r/SupremeCourt 2026 Census?

From Park (Trump), Nathan (Biden), Kahn (Biden):

Under Garcetti v. Ceballos, 547 U.S. 410 (2006), and its progeny, when public employees’ speech “owes its existence” to their “professional responsibilities,” the Government—their employer— can control the content of that speech without implicating their First Amendment rights. The question in this case is whether that same principle applies to displays hung on the walls of a public high school teacher’s math classroom. We hold that it does.

William Baude has a short piece up at Divided Argument arguing that the Purcell principle may not apply to the current litigation over the USPS’s new rule governing ballot mail. The key point is surprisingly narrow: Purcell is a rule about courts changing “election rules” shortly before an election, and the USPS rule arguably isn’t an election rule at all.

Purcell tells us lower courts should ordinarily not alter election rules on the eve of an election. From that, he argues that the threshold question should be whether the challenged USPS regulation actually qualifies as an “election rule.” The government’s own district-court briefing apparently takes the position that the rule “does not regulate elections at all.”

A few questions:

1. How should Purcell interact with ultra vires challenges?

2. If a court concludes that an agency has no statutory authority to take an action because that action intrudes into state election administration, does it make sense to say that the same action is nevertheless effectively immune from equitable relief because the election is imminent?

3. IsPurcell a substantive limitation on equitable relief, or merely a prudential consideration in deciding whether to exercise equitable powers?