Can Trump legally kneecap the Postal Service to block vote by mail?

As I wrote in April, the dark fate facing the U.S. Postal Service today was evident months ago. For years, it has struggled to stay afloat despite a congressional mandate that it front load retiree medical benefits 75 years forward — something that private corporations like UPS and FedEx need not do. Republican politicians’ years-old attacks on Postal Service inefficiencies are unfair. It is a creature of statute, not free markets. But this month is different for the USPS, because Trump’s hauling off truckloads of U.S. neighborhoods’ familiar blue mail boxes and removing sorting machines from processing facilities carries no pretense of justification. Once again, America is facing the ubiquitous question of the Trump presidency: His actions are terrible policy, but are they lawless, too?  

Like all-things-Trump, the real question isn’t whether he can do this, but whether there will be consequences. Because without consequences, the law itself doesn’t matter. Consider, for example, how effective speed cameras are at making people take speed limit laws seriously. So far, Congress has done nothing to save the Postal Service and little to save the election itself, despite its constitutional authority to act on both fronts. 

The Constitution specifically empowers Congress “To establish Post Offices and post Roads.” In 1970, the Postal Reorganization Act made the USPS a so-called government-owned corporation. For the Postal Service in particular, what this means is that Congress gave away its constitutional power to fix rates and no longer directly subsidizes the USPS, among other things. But unlike private mail carriers, the USPS cannot be sued for negligence if it misdirects or fails to deliver mail. While it’s a hybrid public entity with private characteristics, therefore, it ultimately answers to Congress.

If the Senate hadn’t skipped town until Sept. 17, Congress might change the law in time to save the USPS and the election, with an influx of dollars to address immediate budget shortfalls. Such funding is included in the House-passed HEROES Act that would supplement coronavirus relief, but that bill has sat untouched on Senate Majority Leader Mitch McConnell’s (R-Ky.) desk since May. 

Over the weekend, House Speaker Nancy Pelosi (D-Calif.) called on Congress to return to Washington from its summer recess for emergency hearings to address the Postal Service crisis, which many fear could derail the November elections.

Congress has the constitutional power to pass laws governing federal elections. It could, for example, pass a law that recognizes ballots as timely so long as they are postmarked by a certain date — regardless of when the mail actually arrives at state election offices. That way, Trump-induced delays wouldn’t affect the election results, even if they slowed the tallying process. Such requirements already thread throughout the law governing what the Internal Revenue Service can and cannot do insofar as pinging taxpayers for delays in mailing annual tax returns.

If Congress is not going to act, the courts — if asked through viable lawsuits — likely would. In 1845, the U.S. Supreme Court held that U.S. mail is federal property, and that USPS personnel “are not mere common carriers, but a government, performing a high official duty in holding and guarding its own property as well as that of its citizens committed to its care.” In 1895, the court recognized federal courts’ power to issue injunctions to ensure “the carrying of the mail.” (In that case, the government sued to ensure that the U.S. mail could run in the midst of a strike. The court, no doubt, would never have imagined the need to issue an injunction against a president of the United States who — in former President Obama’s words — is trying to “actively kneecap” the Postal Service just weeks before November 3, but here we are).

Congress has already bound the hands of the president and his newly-minted and ethically-conflicted Postmaster General, Louis DeJoy, by confining their ability to gut essential mail services for raw political gain. The rationale is clear in the text of the Postal Reorganization Act itself. It states that “[t]he United States Postal Service shall be operated as a basic and fundamental service provided to the people by the Government of the United States, authorized by the Constitution, created by Act of Congress, and supported by the people.” 

There’s more. 

“The Postal Service shall have as its basic function the obligation to provide postal services to bind the Nation together through the personal, educational, literary, and business correspondence of the people. It shall provide prompt, reliable, and efficient services to patrons in all areas and shall render postal services to all communities.”

And this. 

“The costs of establishing and maintaining the Postal Service shall not be apportioned to impair the overall value of such service to the people,” and in fixing rates, “the Postal Service shall give the highest consideration to the requirement for the most expeditious collection, transportation, and delivery of important letter mail.”

Are ballots “important letter mail”? Any thinking person (for that matter, even Russian President Vladimir Putin) would say yes.

So, does Donald Trump have the legal power to kneecap the Postal Service in order to prevent eligible voters from safely casting ballots by mail? And does the case against him get stronger if the reason for mail-in voting is to enable Americans to protect their health during a lethal pandemic, which has already claimed over 170,000 American lives? What about compromising the needs of Americans who get vital services like medicines through the mail — does Trump have the power to make these people suffer by hamstringing mail delivery under the guise of efficiency in order to thwart an election? 

Clearly, the answer to whether Trump is acting consistent with the law is “no.”

The question remains whether the other two branches of government — Congress or the courts — will do anything to hold Trump accountable for violating the law. If not, the law won’t matter anymore in America.

Kimberly Wehle is a professor at University of Baltimore School of Law and author of the books “How to Read the Constitution — and Why,” and “What You Need to Know About Voting — and Why.” Follow her on Twitter @kimwehle.