PEN – 9/15/26 – Monday the Supreme Court declined to allow USPS to carry out parts of a new rule on mail-in voting. We believe this is a loss for the citizens of this nation. Their ruling is below – below that is President Trumps statement on this ruling.
Cite as: 609 U. S. ____ (2026) 1
KAVANAUGH, J., concurring
SUPREME COURT OF THE UNITED STATES
No. 26A305
UNITED STATES POSTAL SERVICE, ET AL. v.
CALIFORNIA, ET AL.
ON APPLICATION FOR STAY
[September 14, 2026]
The application for stay presented to JUSTICE JACKSON
and by her referred to the Court is denied. The Government
is unlikely to succeed on the merits of its challenge to the
District Court’s preliminary injunction. And the equitable
factors applicable for obtaining emergency relief from this
Court do not favor a stay.
JUSTICE KAVANAUGH, concurring.
In my view, based on the briefing the Court has received
at this interim stage, there is at least a fair prospect that
the final rule falls within the Postal Service’s statutory
authority. See 39 U. S. C. §401(2). But applying the rule
in the 2026 elections would be arbitrary and capricious in
violation of the Administrative Procedure Act because state
and local election officials do not have sufficient time to
reasonably implement the rule before the elections. See 39
U. S. C. §3001(m); 5 U. S. C. §706(2)(A). For that reason, I
concur in the denial of the application for stay.
Cite as: 609 U. S. ____ (2026) 1
ALITO, J., dissenting
SUPREME COURT OF THE UNITED STATES
No. 26A305
UNITED STATES POSTAL SERVICE, ET AL. v.
CALIFORNIA, ET AL.
ON APPLICATION FOR STAY
[September 14, 2026]
JUSTICE ALITO, with whom JUSTICE THOMAS joins, dissenting from the denial of application for stay.
The Court incorrectly denies the Government’s application for a stay of a universal injunction that bars implementation of a final rule concerning election ballot mail. Some
of the plaintiffs lack standing, while the remainder are pursuing a claim that this Court has recently called a “‘Hail
Mary pass’” that “‘rarely succeeds.’” NRC v. Texas, 605
U. S. 665, 681–682 (2025). The Government has made the
showings necessary for a stay, so I respectfully dissent.
I
Some five months ago, the President issued an “internal
directive” to “his subordinates mandating,” among other
things, that the United States Postal Service “‘initiate a
proposed rulemaking’” regarding election ballot mail.
Trump v. California, 609 U. S. ___, ___ (2026) (per curiam)
(slip op., at 2). Just days after the President’s directive issued, numerous organizations and a group of States led by
California sued in the District of Massachusetts. The District Court entered a series of injunctions blocking implementation of the directive. This Court eventually stayed
one of the injunctions because the District Court likely
lacked jurisdiction because the suit was premature. Id., at
___, ___–___ (slip op., at 1, 3–8).
2 POSTAL SERVICE v. CALIFORNIA
ALITO, J., dissenting
In late August, the Postal Service promulgated a final
rule pursuant to the President’s directive. Ballot Mail for
Federal Elections, 91 Fed. Reg. 54966 (2026). The rule requires federal ballot mail to be sent in envelopes with three
special features: an election-mail logo, the ability to be
scanned using high-speed processing equipment, and a specialized barcode unique to each voter. Id., at 54990–54991.
States must design envelopes that adhere to these requirements and submit the designs to the Postal Service for review. Ibid. Finally, States must upload basic information
about the voter to a Postal Service portal. Id., at 54991.
Under the rule, the Postal Service must review mail sent
from States to voters for compliance with these requirements. Ibid. Mailings that fail to comply “will not be accepted and will be returned to the” State, which can then
resubmit the mail after correcting errors. Ibid.
Within days of the final rule’s issuance, the District Court
entered a temporary restraining order that it later converted to a nationwide preliminary injunction stopping the
rule from taking effect. The Government applied to this
Court for a stay.
II
To obtain a stay, the applicant must make a strong showing of a likelihood of success on the merits and irreparable
harm. In close cases, we also consider the balance of the
equities. See Hollingsworth v. Perry, 558 U. S. 183, 190
(2010) (per curiam).
A
The Government is likely to succeed on the merits of its
appeal.
To begin, the District Court issued a nationwide injunction based on claims asserted by several plaintiff organizations that likely lack standing. These organizations first
claim a direct organizational injury because the rule
Cite as: 609 U. S. ____ (2026) 3
ALITO, J., dissenting
supposedly thwarts their ability to educate members about
voting. Yet this theory of injury is based on “‘a setback to
the organization’s abstract social interests’” and an effort
to “spend its way into standing simply by expending money
to gather information and advocate against the defendant’s
action[s].” FDA v. Alliance for Hippocratic Medicine, 602
U. S. 367, 394 (2024). The organizations also assert associational standing based on injuries to unnamed members
who never filed declarations themselves. Such cryptic filings cannot be used to show standing. We have “required
plaintiff-organizations to make specific allegations establishing that at least one identified member had suffered or
would suffer harm” and to additionally meet the “requirement of naming the affected members.” Summers v. Earth
Island Institute, 555 U. S. 488, 498–499 (2009).
As for the plaintiff States, their claims are unlikely to
succeed. They claim the rule violates the Elections Clause.
U. S. Const., Art. I, §4, cl. 1. This claim, however, collapses
into an inquiry about whether the Postal Service has statutory authority to promulgate the rule. Even assuming the
rule here is a regulation of elections, Congress may create
such rules under the Elections Clause. And, by statute, it
may authorize the Postal Service to issue such rules. Because litigants cannot convert claims that a federal entity
has “acted in excess of [its] statutory authority” into constitutional claims, see Dalton v. Specter, 511 U. S. 462, 472–
474 (1994), the crux of the dispute is whether the Postal
Service has statutory authority to issue the rule.
To assert a claim that an agency exceeded its statutory
authority, the challenger needs a cause of action, which is
typically provided by the Administrative Procedure Act.
5 U. S. C. §§702, 704. However, Congress broadly exempted “the exercise of the powers of the Postal Service”
from review under the APA. 39 U. S. C. §410(a); see also
Mittleman v. Postal Regulatory Comm’n, 757 F. 3d 300, 305
(CADC 2014). It also channeled many claims against the
4 POSTAL SERVICE v. CALIFORNIA
ALITO, J., dissenting
Postal Service to initial review before the Postal Regulatory
Commission followed by review in the United States Court
of Appeals for the District of Columbia. See 39 U. S. C.
§§3662–3663. These provisions tightly constrain APA review of Postal Service actions.
Unsurprisingly, the statutory claim here is not subject to
APA review. It is a challenge to the scope of the Postal Service’s general rulemaking authority and therefore exempt
from the APA. §410(a).*
Since the plaintiff States cannot proceed under the APA,
they must instead invoke an equitable cause of action
known as an ultra vires claim. Because such claims rely on
a judicially-implied cause of action and may be used to “endrun” statutes created by Congress that restrict judicial review, this Court’s “cases have strictly limited nonstatutory
ultra vires review” to a narrow set of circumstances. NRC
v. Texas, 605 U. S., at 681. Crucially, the relevant agency
action must be “entirely in ‘excess of [the agency’s] delegated powers and contrary to a specific prohibition’ in a
statute.” Ibid. (emphasis deleted). Such a claim is thus
“‘essentially a Hail Mary pass’” that “‘rarely succeeds.’”
Id., at 681–682; see also Federal Express Corp. v. Department of Commerce, 39 F. 4th 756, 764 (CADC 2022) (“ultra
vires claims are confined to ‘extreme’ agency error where
the agency has ‘stepped so plainly beyond the bounds of [its
statutory authority], or acted so clearly in defiance of it, as
to warrant the immediate intervention of an equity court’”).
That Hail Mary pass is unlikely to be successfully completed here. The Postal Service has broad authority to
——————
*The claim is arguably channeled to the Postal Regulatory Commission for review in the first instance. The lower courts have not addressed
that issue despite its jurisdictional implications. See Axon Enterprises,
Inc. v. FTC, 598 U. S. 175, 185 (2023); Steel Co. v. Citizens for Better
Environment, 523 U. S. 83, 94 (1998). And because the Government is
likely to succeed for another reason, resolution of that question is not
necessary
Cite as: 609 U. S. ____ (2026) 5
ALITO, J., dissenting
regulate the mail. It holds the “general powers” to “adopt,
amend, and repeal such rules and regulations, not inconsistent with this title, as may be necessary in the execution
of its functions under this title and such other functions as
may be assigned to [it] under any provisions of law outside
of this title.” 39 U. S. C. §401(2). Through this provision,
Congress has “broadly empowered [the Postal Service] to
adopt rules and regulations.” Postal Service v. Council of
Greenburgh Civic Assns., 453 U. S. 114, 123 (1981). The
Postal Service also possesses the power “to provide for the
collection, handling, transportation, delivery, forwarding,
returning, and holding of mail, and for the disposition of
undeliverable mail.” 39 U. S. C. §404(a)(1).
If the question of the Postal Service’s power were before
us in something other than the context of an ultra vires
claim, the Government’s argument would present a difficult
question. But here the question is different. In order to
assert an ultra vires claim, the plaintiffs must show that
the challenged regulation of envelopes here is “entirely ‘in
excess’” of the power to govern collecting, handling, transporting, delivering, forwarding, and returning of mail.
NRC v. Texas, 605 U. S., at 681. The same is true of the
requirement to pass along information about each recipient
of ballot mail. At the very least, the Postal Service did not
act “‘contrary to a specific prohibition’” in enacting the rule.
Ibid. (emphasis deleted).
The plaintiff States resist these conclusions by invoking
a highly technical provision tucked away in a corner of the
Postal Reorganization Act of 1970. It concerns “nonmailable matter,” a hodgepodge of items ranging from those that
exceed the size and weight limits for certain classes of mail
to fragrance-advertising samples. See 39 U. S. C. §3001.
Under this provision, “proceedings concerning the mailability of matter under [chapter 30 of title 39] and chapters 71
and 83 of title 17 shall be conducted in accordance with [the
APA].” §3001(m). But a lawsuit claiming the Postal Service
6 POSTAL SERVICE v. CALIFORNIA
ALITO, J., dissenting
exceeded its authority under chapter 4 of title 39, see
§401(2), is not a proceeding concerning the mailability of
matter under chapter 30 of title 39. Such a broad reading
is difficult to square with Congress’ decision to exempt the
Postal Service from APA review except in narrow instances.
§§410(a), 3662–3663.
It is also not clear that the Postal Service created a new
class of nonmailable matter, let alone that it is specifically
prohibited from doing so. NRC v. Texas, 605 U. S., at 681.
The rule’s requirements appear more similar to other
threshold requirements for mailing—such as the basic requirement to list the recipient’s address on one side of the
package or stamping requirements—that do not render
noncompliant mail “nonmailable material.” Reading the
nonmailable material provisions to prohibit the rule’s conditions on mailing would allow niche provisions to swallow
the Postal Service’s otherwise broad power to regulate the
delivery of mail.
In sum, the plaintiff States’ statutory claim is based on a
contestable reading of a broadly drawn statute empowering
the Postal Service to regulate the mail. Given that the
plaintiff States advance an ultra vires claim, the Government must show only that the agency’s interpretation of the
statute is not “‘patently a misconstruction.’” Changji
Esquel Textile Co. v. Raimondo, 40 F. 4th 716, 722 (CADC
2022). I express no view on whether the Government would
be likely to succeed on de novo review of the Postal Service’s
powers. But for now, the Government has satisfied its burden of making a strong showing that the plaintiff States’
ultra vires claim is not likely to succeed.
B
The remaining equitable factors favor a stay as well. The
Government will suffer irreparable harm absent relief.
“Because reversal of the District Court’s [injunction] would
come too late for the 2026 midterms, the District Court’s
Cite as: 609 U. S. ____ (2026) 7
ALITO, J., dissenting
errors deal a serious setback to the Executive’s goals while
this litigation unfolds.” Trump v. California, 609 U. S., at
___, (slip op., at 9) (internal quotation marks omitted).
As for the equities, the Government has a strong interest
in enforcing the rule, and implementing it will also “enhance the visibility of Federal Ballot Mail” in order to better
detect election fraud. 91 Fed. Reg. 54972. On the other side
of the balance, the plaintiff States invoke the practical effects of implementing the rule close to the midterm elections. I take that problem very seriously, but it is not
enough to convince me to deny the application.
First, as the District Court acknowledged, the States disagree about the nature of these effects. App. to Application
for Stay 44a. Twelve States supported the rule below and
asserted that compliance at this time is practicable.
Second, the plaintiff States and the courts bear a substantial share of the blame for the rule’s timing. In April,
the plaintiff States sued to challenge the President’s internal directive to subordinates mandating a rulemaking. For
months, this litigation cast a cloud over the Government’s
ability to issue a final rule. The District Court entered several injunctions months later prohibiting the Government
from undertaking that rulemaking. Not only was the Government subject to months of premature litigation and a series of injunctions that this Court later determined were
likely issued without jurisdiction, the Government had to
wait nearly another full month for this Court to issue its
decision so holding. Indeed, this Court spent from late July
to the end of August drafting nearly 40 pages of opinions,
including two dissents, despite the Government’s public notice that it would not publish a final rule while subject to
the injunctions, see 91 Fed. Reg. 44880, and its representation that it had a strong interest in issuing its rule in earlyto mid-August to allow time to implement it. The plaintiff
States cannot claim the timing of the rule tilts the equities
8 POSTAL SERVICE v. CALIFORNIA
ALITO, J., dissenting
in their favor when they, and courts hearing their claims,
are responsible for so much of the delay.
* * *
For these reasons, I would grant the Government’s application and respectfully dissent from the Court’s denial
President Trumps Statement
Republicans just got another bad decision from the United States Supreme Court, one that the Court System took forever to give, and then blamed it, in part, on no time left to implement a solution to our totally CORRUPT and out of control Mail-In voting “disaster,” which is a laughing stock all over the World, and where we are the only country that has to endure such a Nation Destroying SCAM. Justices Alito and Thomas, legends both, strongly disagreed with this horrible, highly political, ruling. It is a big loss for Republicans, and America itself, and makes cheating by the Radical Left “Dumocrats,” on Mail-In Ballots, a much easier thing to do – And now they have an open field to do so!
The Supreme Court has really let our Country down! Certain Justices are petrified of these crazed and depraved Democrats and are totally unable to show the courage necessary to save our America. Their horrible decision on Tariffs will be costing the U.S.A., for many years to come, Trillions and Trillions of Dollars. They didn’t even state, “money paid does not have to be paid back,” much to the benefit of entities that truly hate our Country, and have been RIPPING IT OFF FOR YEARS, unnecessarily costing us, immediately, Billions of Dollars. Likewise, the Supreme Court’s Decision on Birthright Citizenship is a complete and total disaster for America, and has already led to massive corruption with respect to “citizenship” in our Country.
The damage done to America is incalculable, and they know this, just as everyone else does – It is an irreparable and unrecoverable harm! The Court’s inability and unwillingness to do the right thing for our Country will go down, in a very negative way, in the annals of History. This Supreme Court is bullied and cajoled by the Radical Left into making decisions that have set America back at least a hundred years. These are not the people I interviewed to serve on the United States Supreme Court, they are merely a shell of their original selves, a Court that is costing the United States Trillions of Dollars with shockingly bad rulings that are of such magnitude that it won’t be easily possible for our Country to recover or heal. It is a Court that will go down as having rendered some of the most destructive, hurtful, and damaging decisions in our Country’s history. It is not easy for me to write this criticism of the United States Supreme Court – it will likely cost me dearly for years to come – but I feel it my obligation and duty, as President, to do so for the America we love! Thank you for your attention to this very important matter. God bless the U.S.A. President DONALD J. TRUMP