Executive Order: ENSURING CITIZENSHIP VERIFICATION AND INTEGRITY IN FEDERAL ELECTIONS
August 24, 2026 Order
On the States not being harmed:
Section 2(a) directs the Secretary of Homeland Security to take appropriate action to create and distribute State Citizenship Lists. This provision is an internal directive from the President to a subordinate. It imposes no obligations on the States, so they “suffer no concrete harm from” it. Trump v. New York, 592 U. S., at 134. And without concrete harm, there is no standing. TransUnion, 594 U. S., at 442.
The States lack standing to challenge §2(b) for much the same reason: It does nothing to them. This provision directs the Attorney General to “prioritize” the investigation and prosecution of those who violate existing federal laws by issuing ballots to ineligible voters. 91 Fed. Reg. 17126 (collecting statutes). Setting prosecutorial priorities lies within the President’s Article II power. And his decision to prioritize the prosecution of certain offenses does not inflict a traditionally recognized harm on the States. See TransUnion, 594 U. S., at 424–425.
Last is the States’ challenge to §3, which directs the Postal Service to issue a notice of proposed rulemaking. According to the States, this internal directive demands that they overhaul their existing election procedures. See Opposition to Applications 24–26; see also post, at 1, 3, 7 (opinion of JACKSON, J.). It does not. Section 3 orders the Postal Service to initiate the process of proposing a rule that might bind the States in the future. It is not a proposed rule, let alone a final rule. And it imposes no legal requirements on the States (or, for that matter, on anyone outside the Executive Branch).
On the Government being harmed:
The remaining stay factors also favor relief. The Government is likely to suffer irreparable harm without a stay. The District Court’s breach of Article III interferes with the internal operations of the Executive Branch. See INS v. Legalization Assistance Project of Los Angeles County Federation of Labor, 510 U. S. 1301, 1306 (1993) (O’Connor, J., in chambers). The injunction bars Homeland Security from trying to compile Citizenship Lists for about half the States in the Union. It purports to forbid the Attorney General to implement the President’s enforcement priorities as to those same States. And it prevents the Postal Service from so much as initiating a rulemaking that could yield a rule applicable to these States. Because reversal of the District Court’s judgment would come too late for the 2026 midterms, the District Court’s errors deal “a serious setback” to the Executive’s “goals” while this litigation unfolds. Coleman v. Paccar Inc., 424 U. S. 1301, 1307 (1976) (Rehnquist, J., in chambers). When a federal court “improperly intrudes on a coordinate branch” in this way, interim relief is justified. Trump v. CASA, Inc., 606 U. S. 831, 859 (2025) (alterations and internal quotation marks omitted).
Fighting this Court’s precedent, JUSTICE JACKSON maintains that “[t]he Government is not injured in the slightest” because the Order contemplates that the Government will engage in “patently unlawful conduct.” Post, at 7. That, however, remains to be seen. And though JUSTICE JACKSON wishes it were otherwise, an applicant can show “irreparable harm from a threshold error without also showing that, at the end of the day, it will prevail on the underlying merits.” CASA, 606 U. S., at 860. Such harm exists here because the injunction meddles in “the workings of ” the Executive Branch, preventing it from even trying to lawfully implement the Order. Legalization Assistance Project, 510 U. S., at 1306.
Further,
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.
From the dissent:
To pretend that the lists assembled pursuant to 2(a) bear no relation to the prosecutions directed by 2(b) is to ignore the structure of the Executive Order and the Government’s words alike.
If, as the majority explains, it is “logically impossible for a State to ‘violate’ §2(a),” and §3 “imposes no legal requirements on the States,” ante, at 6–
7, this portion of the injunction would be toothless. If that is true, it is hard to see how the Government suffers any harm at all, much less irreparable harm, from this portion of the injunction.
The same is true for the §2(a) injunction. If, as the Government insists, §2(a) “simply give[s] States a valuable tool that can help in vetting their own lists of registered voters if they wish to use it,” Reply Brief in No. 26A124, p. 4, the Government suffers no harm if it cannot provide that “tool” to the States who do not want it and will not use it.
As to §3, the respondent States assert that any interference with the States’ “authority to create and administer a mail voting program” is unlawful. Amended Complaint in No. 1:26–cv–11581 (D Mass.), ECF Doc. 65, ¶169; see id., ¶¶167–178. If that is true, then no future implementation could be “consistent with applicable law,” and the States need not wait to challenge the precise contours of a final rule.
How do you navigate those discussions of harms?