Trump CANNOT regulate elections by executive order

February 27, 2026

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The Washington Post set off a minor panic on Thursday by publishing a report that Trump is considering issuing an executive order banning mail ballots and requiring proof of citizenship—provisions that are included in the not-likely-to-pass SAVE Act. Per WaPo, Trump seems prepared to bypass Congress to implement the SAVE Act via executive order—something he cannot do.

Trump cannot make, change, or repeal laws via executive order.¹ Therefore, he cannot ban mail ballots or require a national voter ID by executive order. True, he can try. But courts can, will, and already have invalidated Trump’s efforts to regulate federal elections by executive order.

Sadly, the initial WaPo report failed to note the constitutional and judicial limits on executive power over elections, which in turn led to dozens of breathless, incomplete, doomsaying stories by news aggregators and Substack authors. (I received copies of those articles from panicked readers.)

For example, WaPo uncritically quoted the election-denier author of the proposed executive order as follows: “The emergency would empower the president to ban mail ballots and voting machines as the vectors of foreign interference, Ticktin argued.”

Noting that the author “argued” that Trump had the power to ban mail ballots and voting machines leaves unsaid that Trump has no authority to ban mail ballots or voting machines. Omitting that factual predicate is journalistic malpractice.

Over the course of the day, presumably in response to reader criticism (including mine), WaPo updated its story to acknowledge the limits on presidential power, but it was too late. The damage was done. The election denier’s views of presidential power were released unchallenged into the ether, and millions of Americans were wrongly told that Trump can and will use an executive order to ban mail ballots and require proof of citizenship to vote in federal elections.

In contrast, experts like Norm Eisen of Democracy Forward and Marc Elias of Democracy Docket accurately reported that the executive order would be blatantly unconstitutional.

Norm Eisen, founder of Democracy Forward, posted on Bluesky:

I have worked on 264 legal cases & matters against the Trump administration, including helping secure the injunction to stop his first executive order on elections If he tries this, it will be 265.

This is unconstitutional & insane.

Democracy Docket released a story that called the executive order “blatantly illegal,” and included commentary from legal experts explaining, “it would take new federal legislation to give the president or any part of the federal executive branch that kind of authority over the conduct of congressional elections.” See Democracy Docket, Anti-voting activists co-ordinating with White House on blatantly illegal draft emergency order to take control of elections.

Later in the day, Democracy Docket obtained a memo from the author of the proposed executive order (a private attorney who is an election denier). Democracy Docket described the memo’s justification for Trump’s authority to ban mail ballots and impose ID requirements as “laughable.” See Democracy Docket, Read the laughable legal memo behind the claim that Trump can declare a national voting emergency.

As explained by Democracy Docket, the author of the proposed executive order invokes the International Emergency Economic Powers Act (IEEPA) as the basis for regulating elections. The IEEPA allows the president to regulate international transactions during an economic emergency. The IEEPA says nothing about regulating elections.

If the IEEPA sounds familiar to you, it is because Trump invoked the IEEPA to impose tariffs, even though the IEEPA did not mention tariffs. In a 6-3 decision, the Supreme Court invalidated Trump’s tariffs, saying,

the President must “point to clear congressional authorization” to justify his extraordinary assertion of the power to impose tariffs. . . . He cannot.

Trump would rely on the same statute, the IEEPA, to regulate elections. But the holding in the tariff case would apply with equal force. Just substitute the word “elections” in the above quote, and we can see how the Supreme Court would strike down Trump’s executive order regulating elections under the IEEPA.

Indeed, some legal observers believe it would be a “gift” for democracy for Trump to issue such an executive order now, because that would expose Trump’s laughable arguments to early judicial review.

Per Democracy Docket,

“What a gift such a clearly unconstitutional executive order would be!,” David Becker, the executive director of Center for Election Innovation & Research and a former DOJ Civil Rights Division attorney, noted on social media. “Though divorced from legal and factual reality, it would enable the courts to invalidate this power grab well in advance of the election, and confirm the clear limits to [federal] interference in elections.”

The case for prompt invalidation of Trump’s use of the IEEPA to regulate elections is even stronger than the case against tariffs. Here, Congress is currently considering legislation that would impose the very regulations that Trump would purport to impose by executive order. That fact highlights that Trump is attempting to claim for himself powers that are reserved to the states and Congress by the Constitution.

I do not mean to dismiss or minimize Trump’s efforts to interfere in the 2026 midterms. But anyone who tells you only what Trump says he will do is telling you only half the story. The half of the story that is omitted by some authors—what we can do--is the most important part. I will leave it to you consider why journalists and authors tell you the scary part of the story but omit the part where we fight back and win.

If you are still concerned about this proposed executive order, I urge you to read the excellent Democracy Docket analysis here: Read the laughable legal memo behind the claim that Trump can declare a national voting emergency.

The House Oversight Committee wastes time taking testimony from Hillary Clinton, ignoring those in the administration who were involved with Epstein’s criminal enterprise.

Hillary Clinton voluntarily appeared before the House Oversight Committee to confirm that she did not know Jeffrey Epstein—a statement she had put into an affadavit before the deposition. But House GOP members were salivating at the prospect of questioning the former Secretary of State. After hearing dozens (hundreds?) of times that Hillary Clinton did not know Epstein, Republicans began to ask about the existence of UFOs and Pizzagate.

The deposition was not only an insult to Hillary Clinton, but it was also an insult to Epstein’s victims. The House Oversight Committee is, in effect, continuing the cover-up by wasting time on “show-trial” testimony from political targets with no knowledge of Epstein instead of asking Donald and Melania Trump about their close, decade-long relationship with Epstein and Ghislaine Maxwell.

Hillary Clinton delivered a scathing written opening statement that deserves to be read start to finish. Unfortunately, the statement is available only on Twitter as an image. I have copied and converted the statement into a PDF file, which can be accessed at this link: Hillary Clinton Opening Statement 2026-20-26.

Secretary Clinton’s statement accused the House Oversight Committee of acting to impede the search for the truth and to protect Trump. She wrote,

Secretary Clinton held a post-deposition briefing with the media, which can be viewed in its entirety (12 minutes) here: WATCH: Hillary Clinton speaks to reporters after closed-door House deposition on Epstein | PBS News. The entire briefing is well worth your time.

I also recommend Lucian K. Truscott IV’s Substack on this subject, which covers the hearing and relevant background in more detail. As always, Truscott’s writing and analysis are superb, delivered with a razor’s edge. See Lucian K. Truscott IV, What the hell was the House Oversight Committee doing questioning Hillary Clinton today?

Republican Senators are demanding release of the FBI interviews of a Trump accuser.

NPR and MSNow discovered that the DOJ failed to release notes of three FBI interviews with a 13-year-old girl who accused Trump of sexual abuse. The DOJ has issued shifting defenses and explanations, but now says it is “reviewing” whether any additional documents must be released under the Epstein Files Transparency Act.

The DOJ had better hurry. Even Senate Republicans are losing patience with the cover-up. See The Hill, GOP senators warn Justice Department to release all Epstein files mentioning Trump.

Trump and the DOJ have forgotten the First and Second Laws of Cover-ups:²

• First Law: The Cover-up is (usually) worse than the crime.

• Second Law: Once a cover-up is discovered, it is only a matter of time until the truth emerges.

Trump and the DOJ had a 30-day window to avoid the First and Second Laws of Cover-ups. Unfortunately for them, that window closed on December 19, 2025, the date they were required (but failed) to produce all files demanded by the Epstein Files Transparency Act.

Every day since December 19 has been part of the cover-up. Which brings us to the Third Law of Cover-ups:

• Third Law: The longer a cover-up continues after discovery, the worse it gets for the person trying to conceal the truth.

The DOJ has been caught trying to conceal an accusation against Trump. The delay in producing the obviously relevant documents is making things worse and will continue to do so until the Second Law is satisfied.

Federal judges are losing patience with DHS violations of court orders.

Federal judges across the nation have ordered DHS / ICE / Border Patrol to change their policing tactics, to release detainees, and to stop deportations of specific immigrants in custody. DHS / ICE / and Border Patrol have routinely ignored court orders. One federal judge has had enough and put the administration on notice that it will begin holding administration officials in criminal contempt for future violations. See NYTimes, Judge Vows to End Trump Administration’s Noncompliance ‘One Way or Another’. (Gift article, accessible to all.)

US District Judge Patrick Schiltz threatened criminal contempt against administration officials, writing

The court is not aware of another occasion in the history of the United States in which a federal court has had to threaten contempt — again and again and again — to force the United States government to comply with court orders.

Per the Times,

On Thursday, Judge Schiltz identified 210 orders issued in 143 cases in Minnesota in which he said Immigration and Customs Enforcement officials had not complied with court orders.

The threat by the judge is extraordinary, both because it shows the lawlessness of the administration in conducting its mass deportation program, but also because it has lost the presumption of regularity and trust between the DOJ and federal courts across the nation.

The word of the DOJ is no longer trusted by federal judges, which means that the government will have to work harder to obtain relief from skeptical judges. That loss of credibility will work against the DOJ if and when it seeks court orders interfering in the 2026 midterms.

Speaking of a breach of trust, ICE agents impersonated police officers searching for a missing child to gain entry to a Columbia University dorm, where they promptly arrested a foreign student. The student was released after Mayor Mandami made a personal appeal to Trump. See NPR, Columbia student detained by ICE is abruptly released after Mamdani meets with Trump.

The tactic of impersonating officers is reprehensible and will make it more difficult for law enforcement officers who seek cooperation from the public in the future. Police departments and unions across the nation should condemn ICE’s tactic.

Opportunities for Reader Engagement

Movement Voter Project

The Legal Community for Democracy, a new volunteer initiative at Movement Voter PAC (MVP), is holding its inaugural event on March 5th, 8pm ET/5pm PT.

We are delighted that this event will feature Linda Greenhouse, NY Times columnist, Pulitzer prize-winning author and Supreme Court scholar and Maya Wiley, lawyer, professor, civil rights activist and President and CEO of the Leadership Conference on Civil and Human Rights.

Grassroots groups are on the frontlines of the battle to preserve the rule of law, including the fight in Minnesota and elsewhere against ICE, demanding adherence to due process and the 4th amendment; educating, registering and turning out voters (particularly young people and people of color) in states and districts where we have the best chance to flip House and Senate seats this November; and the hard work of fighting voter suppression and working locally with town/county election officials, Secretaries of State and state legislators to ensure free and fair elections.

This event will raise funds in support of Movement Voter PAC. Movement Voter PAC is a national organization that supports several hundred grassroots groups in over 40 states to register and turn out voters, win elections and build long-term progressive power. The event is free to all.

You can register for this event here.

Concluding Thoughts.

We have slightly more than 8 months until the 2026 midterms. During that time, our resolve and steadfastness will be tested repeatedly. Trump will do his best to confuse, frighten, and demotivate Democratic and independent voters. He will do so, in part, by claiming that he will take actions that are unlawful or impossible. We cannot react to every statement by Trump as if he has superpowers to make his wishes come true. He does not.

There is a danger in constantly cataloguing every threat Trump has ever made about election interference (a common practice on cable news and in the pro-democracy media). The constant repetition of those threats gives them life and heft they do not possess. Those threats need our consent to take root in our minds. Do not grant that consent.

We must, of course, raise the alarm to ensure that we are prepared to defeat Trump’s efforts to interfere in the midterms. But merely raising the alarm is insufficient. We must accompany every warning with a statement explaining how we can defeat the threat.

We have more than enough people sounding the alarm; we need more people responding to the alarm. Even more critically, we need people to lead the brigades into battle.

Within minutes of the publication of the WaPo article, readers began to send me copies of the original article as well as articles by commentators repeating the Post’s original reporting. Most of the time, the forwarded articles had no comment from the reader. It is difficult to know why specific readers sent the article without comment, but I know from subsequent email exchanges that some readers assumed that Trump could ban mail ballots and impose proof of citizenship by executive order.

While I appreciate the heads-up on breaking stories, I want to encourage readers to consider adding “Here’s how we can respond” to emails that implicitly say, “Here is something bad Trump says he will do.”

I ask you to be proactive in pushing back against Trump’s threats, not for my sake, but for yours. It will be a long 8 months and we can’t fall victim to believing everything we read on the internet. We must be willing to push back, even when the news is both bad and true. We are not potted plants. We have agency. We can change the future, but only if we believe in our ability to do so.

For example, I do not believe the SAVE Act will pass. But if it does, I believe that Democrats are better positioned to fight back against the bill’s voter suppression measures than are Republicans. Other commentators also believe so. See The Atlantic, Trump’s Favorite Voter-ID Bill Would Probably Backfire (“Congressional Republicans are trying to pass a strict “election integrity” law that seems almost custom-designed to disenfranchise their own supporters.”)

But many pro-democracy writers discuss the SAVE Act as if its passage will be the end of democracy. It will not. We can fight back. We can register our voters and get them to the polls in greater numbers than Republicans. I am not saying the SAVE Act is nothing to worry about. To the contrary, it is an abomination that violates the spirit and letter of the Constitution. We should strive to prevent its passage with all our might. But let’s not convince Democrats that all is lost if the SAVE Act passes. They might believe us.

Here’s my point: It will be a rough 8 months. We need to adopt a fighting spirit that refuses to surrender or shrink away in the face of seemingly bad news. Within hours of WaPo’s apocalyptic initial story about the executive order, Democracy Docket had determine that the legal basis for the executive order was “laughable.”

To be clear, no one is saying Trump’s ill-intent and motivation are laughable, only that his legal arguments are. That fact should give us confidence to carry on in the fight to save democracy.

Stay strong, everyone! Talk to you tomorrow!

Pro-democracy protest photos

[Please send protest photos to rbhubbell@gmail.com.

Freeport, Maine, Visibility Brigade Biker off to the bridge over I-295.

Camano Island, WA, patriots.

Chesapeake Indivisible Visibility Brigade, Annapolis MD

I 90 Berkshire Visibility Brigade standout in at Marble St. in Lee, MA

West LA Freeway Brigade, Los Angeles 2/26/2026.

Pasadena, CA

Needham Resists Visibility Brigade (MA).

The attached photos below shows what our all-American team was doing during the SoTU—giving pro bono dental care to children in the Phillipines. (Phillips Renner Foundation (www.p-r-foundation.org) Our team, with a few local volunteers, worked from 7 AM to 7 PM, then returned to our hotel after treating almost 300 children.

Petaluma Indivisible in northern California: 40-60 folks meeting on the 101 overpass every Thursday afternoon since Summer

1. See ACLU, What Is an Executive Order and How Does it Work?

2. I think the framework of “The Three Laws of Cover-ups” is original, but it is possible that I am recalling a forgotten source. If so, please let me know and I will credit the original source. Of course, “The cover-up is always worse than the crime” is an American political axiom of longstanding usage.