Senate Minority Leader Chuck Schumer (D-N.Y.), House Minority Leader Hakeem Jeffries (D-N.Y.), and four Democratic organizations went to court one day after President Donald Trump signed Executive Order 14399.
They asked a federal judge to stop federal agencies from carrying it out before those agencies had written the rules. On Tuesday, a unanimous D.C. Circuit panel told them that they had arrived a bit too early.
Circuit Judges Patricia Millett, Robert Wilkins, and Gregory Katsas upheld U.S. District Judge Carl Nichols' refusal to issue a preliminary injunction. The executive order isn't self-executing, and the injuries claimed by the plaintiffs depended on agency decisions that hadn't been made.
The judges said the challengers may return promptly if federal agencies violate the Constitution or federal law while implementing it. From The Federalist:
In a unanimous ruling, a three-judge panel for the D.C. Circuit Court of Appeals shot down Democrats’ lawfare against Trump’s March elections order. That directive, as summarized by the court, “directs the Department of Homeland Security, the United States Postal Service, and other agencies to begin developing new rules and procedures for mail voting in the upcoming midterm and future elections.”
The Democrat plaintiffs filed their lawsuit a day after the order was issued. They subsequently asked the U.S. District Court for the District of Columbia a week later to issue a preliminary injunction blocking its enforcement.
The district court rejected that request.
In affirming the lower court’s ruling, the D.C. Circuit panel noted that “while Plaintiffs have identified a number of serious questions concerning the lawfulness of proposed actions if implemented on the threshold of the upcoming federal election, this case likely is unripe for review in its present posture.” In other words, the case is unreviewable at this time because the named agencies haven’t implemented their official rules as required by the president’s order.
“In particular, Plaintiffs’ request for preliminary relief ‘is premised on the threatened impact’ of the Executive Order after it is implemented and if in violation of federal law,” the court ruled. “In addition, the Executive Order, which is not self-executing, directs the agencies to act only to ‘the extent feasible and consistent with applicable law, including but not limited to the Privacy Act of 1974,’ and so requires compliance with the very legal limitations about which Plaintiffs are concerned.”
Trump's March 31 order directs the Department of Homeland Security to compile state citizenship lists from federal records, with procedures allowing people and states to correct errors.
It also orders the U.S. Postal Service to develop uniform standards for mail ballots. The proposed rule includes official election mail markings, automation-compatible envelopes, unique tracking barcodes, and state lists of voters participating by mail.
Trump won the appeal, but the court didn't rule that every part of his order is constitutional. The panel identified "serious questions" about future implementation and noted that the Constitution gives the president no express authority over the conduct of elections.
The judges also warned that a nationwide overhaul of mail procedures might prove impossible before the November 3 midterms.
Judicial restraint works in both directions. Courts can stop unlawful agency action once it becomes concrete, but they aren't supposed to decide disputes built entirely around predictions.
Schumer, Jeffries, and the Democratic groups filed their lawsuit on April 1, before any agency had acted and before anyone knew what a final rule would contain.
The Postal Service published its proposed rule on June 2, five days after Nichols denied the injunction. The D.C. Circuit could review only the record that had been before him.
The panel also noted that the plaintiffs hadn't renewed their request after Homeland Security and the Postal Service took later steps toward implementation.
A separate case keeps the larger fight alive. A Massachusetts injunction currently blocks key parts of the order for the November 3 election in 23 states and the District of Columbia.
The First Circuit refused to pause that injunction on July 25, and the Solicitor General, John Sauer, asked the Supreme Court for emergency relief two days later. From The Federalist:
The appellate court said that plaintiffs may seek relief “[i]f the defendant agencies take steps to implement the Executive Order in a manner that violates federal law or the Constitution.” The panel was comprised of Judges Patricia Millett (Obama appointee), Robert Wilkins (Obama appointee), and Gregory Katsas (Trump appointee).
The ruling was handed down a day after the Trump administration filed an emergency application with the U.S. Supreme Court to pause a Massachusetts-based judge’s injunction against the mail-in voting order. Similar to the D.C. Circuit, the Justice Department argued that “the injunction is especially indefensible because the agencies are still deliberating over how (if at all) to implement the Order.”
Justice Ketanji Brown Jackson, who oversees emergency applications from the 1st Circuit Court of Appeals, has given respondents until 4 p.m. ET on Aug. 3 to file a response to the government’s application.
The split legal landscape leaves President Trump with a real appellate victory and an order that remains partly blocked elsewhere. The D.C. Circuit ruling protects a basic limit; plaintiffs must identify concrete government action and a ripe injury before a court blocks it.
Trump's order may survive, change, or fail once final rules exist. Tuesday's loss belongs to Democrats because they tried to make the court decide a future dispute. They wanted the injunction first and the facts later.
The unanimous panel refused.
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