Well, that was quick.
On Thursday evening, federal district Judge Indira Talwani issued a new order that temporarily blocks an effort by the Trump administration that appears designed to sabotage voting by mail in the upcoming midterm election. Talwani previously blocked an executive order that President Donald Trump issued in March, which ordered the US Postal Service (USPS) to impose a byzantine array of new regulations on voting by mail, but the Supreme Court reinstated the order on Monday.
Talwani’s new order sets up a new legal fight that is almost certain to return to the justices, and it is unclear whether this Court, with its 6-3 Republican majority, will allow Trump to make sweeping and unilateral changes to how the United States conducts its elections so close to an actual Election Day.
That said, while Talwani’s new order in League of Women Voters v. Trump is brief, it is well-crafted to persuade at least some members of the Court’s Republican majority to break with the leader of their political party.
Talwani relies on a fairly new legal concept known as the “major questions doctrine,” that the Court’s Republican majority invented in the later part of the Obama administration, and that the Court has only actually used against one president: Joe Biden. Briefly, the doctrine claims that the executive branch may not make policy changes that are too sweeping or too aggressive, often even if a federal statute appears to give it the power to do so.
As the Court summarized this idea in Utility Air Regulatory Group v. EPA (2014), the first Supreme Court decision to articulate the major questions doctrine, “we expect Congress to speak clearly if it wishes to assign to an agency decisions of vast ‘economic and political significance.’”
This doctrine, as Talwani indicated in her recent order, cuts sharply against Trump’s rules governing voting by mail. The Trump administration’s new rules impose so many layers of bureaucracy on mail ballots that it likely would be impossible for many states to comply with these regulations. Trump’s new rules, in other words, would effectively shut down voting by mail in much of the United States. And there are several states who conduct their elections almost entirely by mail, which means that Trump’s rules could effectively cancel the 2026 midterms in those states.
If that’s not a decision of “vast economic and political significance,” nothing is.
The uncertain question, however, is whether the Court will actually apply its major questions doctrine to Trump — something that several justices have thus far been reluctant to do. In Learning Resources v. Trump (2026), the tariffs case, three Republican members of the Court (Chief Justice John Roberts and Justices Neil Gorsuch and Amy Coney Barrett) did say that this doctrine prohibits many of Trump’s tariffs. But the other three Republican justices (Clarence Thomas, Samuel Alito, and Brett Kavanaugh) refused to apply this doctrine to a member of their own party.
If Roberts, Gorsuch, and Barrett hold to the view they expressed in Learning Resources — the view that the major questions doctrine applies to both Trump and Biden — then it is likely that these three justices plus the Court’s three Democrats will form a majority that will strike down Trump’s latest attempt to sabotage voting by mail.
A brief history of the major questions doctrine
Many federal laws lay out a broad policy goal, and then empower a federal agency to write rules that will achieve that goal. Federal law, for example, requires the EPA to determine when power plants must install cutting-edge technology to reduce their emissions. It tasks a body within the Department of Health and Human Services with determining which vaccines must be covered by health insurers. And it gives the Federal Communications Commission some control over the cost of cable television.
Often, the federal statutes granting these powers are written quite broadly. During the later part of the Obama administration, however, many voices within the conservative legal movement grew concerned that Democratic presidents could use these broadly worded statutes to make major policy changes. Indeed, in the late Obama administration, the Federalist Society’s annual lawyers’ convention, probably the most important annual gathering of influential Republican attorneys, became a showcase of proposals to restrict federal agencies and prevent them from using their congressionally granted authority too aggressively.
Ultimately, the Supreme Court’s Republican majority settled on the major questions doctrine as their solution to this clamor within the Federalist Society and other conservative legal groups. The doctrine effectively gives the justices a veto power over any policy proposal advanced by the executive branch if the justices deem that policy to be too ambitious.
The doctrine effectively gives the justices a veto power over any policy proposal advanced by the executive branch if the justices deem that policy to be too ambitious.
One common critique of this doctrine is that it appears nowhere in the Constitution or in any federal law. The Court first announced the doctrine in its 2014 opinion in Utility Air, which merely invoked it to criticize a hypothetical EPA regulation that never actually existed. The Court has also never handed down a majority opinion explaining where the justices’ new power to veto federal regulations comes from. Moreover, while some individual justices have attempted to do so, their explanations conflict with each other, and are often ridiculous. Barrett has argued, for example, that the major questions doctrine derives from a parable about a babysitter.
Another criticism of the doctrine is that the Court has never applied it to a Republican administration — indeed, the Court has thus far only applied it to Biden. The doctrine, after its first appearance in 2014, laid dormant for the entire first Trump administration — only to spring back to life in order to block several of Biden’s attempts to respond to the Covid-19 pandemic.
Yet, while the major questions doctrine is hard to defend as a good faith effort to interpret the Constitution or any statute, the pragmatic case for allowing someone to rein in a too aggressive president has undoubtedly gotten stronger in the last two years. Trump is a walking advertisement for the idea that there should be limits on executive power. If the Court decided to apply its major questions doctrine to Trump, it’s unlikely that many Democrats would object to such a decision.
Thus far, however, the Court’s three Democrats have kept this recently fabricated doctrine at arms length — in Learning Resources v. Trump (2026), for example, they concluded that it was unnecessary to invoke the major questions doctrine to strike down Trump’s tariffs that were at issue in that case because federal law was clear that those tariffs could not exist.
The Court’s Republicans, meanwhile, have split on whether the doctrine should be applied to Trump. While Roberts, Gorsuch, and Barrett all concluded that Trump’s attempt to impose trillions of dollars worth of new taxes on imports was a decision of “vast ‘economic and political significance,’” the other three Republicans joined an opinion by Justice Brett Kavanaugh, which said that the doctrine does not apply “in the foreign affairs context, including foreign trade.”
Kavanaugh, in other words, would have invented a new exception to a brand new legal doctrine, which just happened to be perfectly tailored to exempt a Republican president’s signature economic policy.
Still, there are three Republican justices who have previously concluded that the major questions doctrine may be used against a Republican president. If these justices hold to that view in League of Women Voters, that’s enough to form a majority against Trump’s restrictions on voting by mail because the Court’s three Democrats have already signaled that they oppose those restrictions.
League of Women Voters gives the Roberts Court a second chance to legitimize one of its most consequential changes to US law
Because the Court has neither offered a plausible explanation of where the major questions doctrine comes from, nor applied this doctrine in a nonpartisan way, both the Democratic justices and a wide array of legal scholars have treated the doctrine as illegitimate. So have I. Kavanaugh’s dissenting opinion calling for a Trump-sized exemption to the major questions doctrine certainly didn’t help the case for it.
But if any case justifies a court decision that overrides a presidential power grab, League of Women Voters is that case.
Trump has carried out a vendetta against voting by mail since the 2020 election. During the Covid pandemic, disease-shy Democrats were much more likely to vote-by-mail than Republicans, because voting by mail allowed Democrats to avoid a trip to the polls where they might catch Covid. And these voting patterns continued even after the pandemic receded. According to the Pew Research Center, 44 percent of Democrats, and only 26 percent of Republicans, voted by mail in the 2024 election.
The new restrictions on voting by mail, in other words, are almost certainly motivated by Trump’s desire to shut down a method of voting that is preferred by Democrats, and thus skew the 2026 election towards Republicans.
Among other things, the new rules require states to mail ballots in a special envelope which must include certain design elements mandated by the federal government. These envelopes must be preapproved by the Postal Service, and individually scanned in a process that the Trump administration claims will take “less than a minute per mailpiece.”
But, as several states point out in a legal filing challenging Trump’s rules, California alone needs to mail 23 million ballots to individual voters. So that potentially adds up to “23 million minutes … or more than 43 years” that state officials would need to spend just to comply with one small part of the new regulations.
Trump’s lawyers point to two vaguely worded statutes to justify the new restrictions. One permits USPS to adopt rules “as may be necessary in the execution of its functions.” The other permits it to “provide for the collection, handling, transportation, delivery, forwarding, returning, and holding of mail.”
If the major questions doctrine applies to Republican administrations, however, there is no need to parse whether these two laws should be read to allow the Trump administration to effectively shut down voting by mail. The question of whether to quash a method of voting that tens of millions of US voters have used in the past is undoubtedly a question of “vast … political significance.” And thus, under Utility Air’s holding that Congress must “speak clearly” before it can give a federal agency the power to resolve this question, the two vague statutes that Trump’s lawyers cite to justify the new rules are not enough.
League of Women Voters, in other words, should be a very easy case — even for the Court’s Republicans. All they need to do to strike down Trump’s attack on voting by mail is apply the same rules to Trump that they previously applied to Biden.
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