NA Donald Trump has been trying to "nationalize" (his term, not mine) control over elections, claiming sweeping presidential power to control voting processes in a variety of ways. In a compelling recent post at the Election Law Blog, Richard Bernstein explains why these moves run afoul of the major questions doctrine: Briefing has begun in the cases challenging President Trump's latest attempt to arrogate power over federal elections to the federal executive branch—EO 14399's direction that the USPS provide lists states of voters eligible to vote by mail and to block the mail-in votes of those not on the USPS lists. The Society for the Rule of Law (with me as counsel) filed an amicus brief arguing, at pages 10-14, that the major questions doctrine applies to interpretations of federal agency authority on elections issues. That brief is linked here. The lack of authority for EO 14399 is so clear that a federal court does not need to rely on the major questions doctrine in order to invalidate EO 14399. But it should, as an alternative holding…. Before a federal agency has authority to regulate a major question, a statute must provide "clear congressional authorization." West Virginia v. EPA, 597 U.S. 697, 723-24 (2022). "[M]odest words, vague terms, or subtle devices" do not suffice. Id. at 723. Under the major questions doctrine, courts "presume that Congress intends to make major policy decisions itself, not leave these decisions to agencies." Id. at 723 (quotations omitted). This reflects "both separation of powers principles and a practical understanding of legislative intent." Id. at 723-24. "[A] reasonable interpreter would not expect Congress to pawn . . . a big-time policy call . . . off to another branch." Learning Resources, Inc. v. Trump, 146 S. Ct. 628, 641 (2026) (plurality opinion) ("Learning Resources Plurality") (cleaned up). Deciding what is a major question also reflects "constitutional structure and common sense." Id. at 639. The major questions doctrine is especially suitable for federal agency regulations of federal election issues. That is because federal elections control who exercises federal legislative and federal executive power. To compare an election issue to Learning Resources, Congress has the power to impose tariffs, but federal elections decide who exercises that power and every other legislative and executive power, and therefore how all those powers are exercised. As James Madison explained in Federalist No. 51, "[a] dependence on the people" through elections… [TheTopNews] Read More.
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