Trump's Most Dangerous Executive Order Yet

This week on Unexplainable, the Black Plague didn't happen exactly Among other things, it wasn't just about rats. We can look at other kinds of mammals. Camels, it turns out, are pretty good plate transmitters. Camel? Sheep potentially as well. Follow Unexplainable wherever you get your podcast.

Hey everyone, Ellie here, wishing you a happy Wednesday. Yeah, we're coming to you a little early again this week. It's Memorial Day weekend. People are going to be thinking about better things on Friday. Hopefully you're on your way to vacation or relaxing or something. So we thought we'd bring you a little bit early this week. Also, today's topic deals with something that just happened. So I wanted to get this out.

Fairly quickly. Hold on for that. Before we get there, two quick things. Number one, you surely saw that Friday evening, the US Supreme Court. declined to get involved in Virginia's gerrymandering dispute, meaning the Virginia Supreme Court's ruling stands, which struck down that 10 to 1 pro-democratic gerrymandered map.

You could see this one coming. I was on CNN the day after Virginia approved the referendum and I was asked, are there going to be any legal problems with this? And I said, absolutely, this thing is probably going to get struck down in the Virginia court.

Because Virginia simply didn't follow its own rules for how you have to do a referendum. This has nothing to do with right or wrong or fair or unfair. Definitely Donald Trump started this. Definitely Texas started it. Definitely Democrats were trying to

keep up and retaliate, but the problem is Virginia just did not follow its own rules. So as expected, the Virginia Supreme Court struck it down. And as also expected, I was a little nervous about this one because I was very confidently predicting both of these. Uh, the US Supreme Court did not take the case. And so that saga comes to an end, I guess, for now. Secondly.

You may have seen this week that Minnesota State prosecutors have brought a second degree assault charge against an ICE officer, a guy named Christian Castro, who shot a Venezuelan immigrant in the leg during an enforcement operation. Now this is not of course Alex Predi or Renee Good. This is a different guy who was shot and lived. And now here's what's so unusual about this case and really going to be a legal problem.

Here we have state level prosecutors charging a federal officer, an ICE officer, for something he did on the job. And in my view, there is just no way this case succeeds. This has nothing to do with whether it was a valid shooting or an invalid shooting justified or not. This simply has to do with notions of the supremacy clause and federalism, which basically says that the federal government reigns supreme over the state, doesn't get to do everything it wants, but the state can't interfere

in the federal government's enforcement of federal duties. And I don't believe there has ever, ever in the history of this country been a successful State level prosecution of a federal law enforcement official for something that federal law enforcement official has done on his job. And that's for a reason. The law simply will not allow this, in my view. So

Don't be surprised if somewhere down the line, a few months from now, this one ends up getting dismissed too. I don't know what's on the mind of these Minnesota prosecutors. They clearly have to be aware of this legal impediment. They may just be in a situation where they're thinking, well,

Bring the charge and people will be happy. And if it gets thrown out later, blame the courts or blame the federal system or whatever. And it may be better for them politically. And honestly, I've said that about both sides. I think there are situations

where people have said, ah, let me just bring the charge and if some judge throws it out, I'll blame the judge later, but it'll be good for me politically. So I I think that's a real problem when prosecutors do that. I think the Minnesota prosecutors are going to lose this case. Oh, one more thing.

So next week on Wednesday, May 27th, I'm going to be doing something that I've never done before. I'm going to be co-moderating a debate. for a congressional seat, the US House seat for New Jersey's seventh district, which is actually the district next to the one I live in. I'm gonna be moderating it with Sarah Fisher, who you may know from Axios or

uh also CNN and one of our media analysts. So Sarah and I are going to moderate a debate among all of the candidates. And this is a real toss-up district, one of the very few toss-up districts left in this country. It has gone Democratic in the House a few years ago. The current incumbent is a Republican. The margins are always in the low 50s to the high 40s. It has voted for Democratic presidential candidates and Republican candidates.

over the last several cycles. And this race is really interesting because the current incumbent is a Republican named Tom Caine Jr., who the name may ring a bell because he's been missing from Congress. since early March. Jon Stewart did a thing about it. There was a piece in the New York Times about it.

There was speculation he was sick. It turns out he has now made a statement. He was sick. He says he's coming back 100%. He has not confirmed that he will show up to this debate. I don't think he's going to show, but there are four Democratic candidates. Looking for that primary nomination, who are all really quite impressive and substantive. And I'm looking forward to moderating that. So I don't know, if you happen to be

In the Raritan Valley area. We're going to do it at Rariton Valley Community College. You can sign up. There will be links online. Better yet, or probably easier for many of you. If you want to check it out, we'll put it online. It'll be on YouTube. So I'm excited for that. Start with New Jersey house races and we'll see where it goes from there. All right, folks, have a great Memorial Day weekend. Oh, I just sorry, one more, one more thing. I do love your letters.

And emails, we're getting them and I'm reading them. I trust me, I read them all. There's not that many. There's a good number, but there's not like so many. And I read every one of them. And I am going to do a mailbag sometime this summer. It'll be a bonus. Episode for you, and I will answer your questions. And I really do appreciate the comments. Thank you. I really also especially appreciate when people say,

You know, I don't always love what you have to say politically, but I know you're just trying to give it to us straight. I got a few of those. So I do appreciate that. I've also gotten other comments over the years of why don't you just shut the heck up? Those are fine too. But people have not been emailing that. So anyway, on with this week's piece. Send those questions and thoughts in to letters atcafe.com.

Which of President Donald Trump's second-term executive orders currently threatens to do the most damage to our collective political order? I'll let you think about it for a second. Birthright citizenship jumps to mind, but Trump's effort to shred our 150-year-old conception of citizenship, freedom, and equality has been blocked by the federal courts from the start and has never actually gone into effect.

Based on oral argument in the Supreme Court in April, Trump's attempted redefinition is all but certain to fail. Global emergency tariffs would have been a contender as they temporarily threw international markets into disarray. But the Supreme Court invalidated the president's unilateral Liberation Day scheme back in February.

Trump's executive actions attacking universities and law firms are anathema to core First Amendment notions of free speech and association, but the president's bullying tactics have been uniformly rejected by the federal courts. And have blessedly little chance of ever becoming law, though we can't discount the chilling effect, as many of the targeted institutions meekly chose to settle, quote unquote, with the administration rather than fight.

Allow me to offer for your consideration a little-noticed contender. Trump's March 2026 executive order, absurdly titled, Ensuring Citizenship, Verification, and Integrity in Federal Elections.

This one has slid under the radar a bit. Part of that is a function of sheer volume. In his first year plus back in office, Trump has issued a torrent of executive orders, over two hundred fifty so far, Already more than Joe Biden or Trump himself in his first term, and just under Barack Obama's output during his eight year tenure.

Trump's executive order on elections also has largely evaded public scrutiny because it doesn't quite bash the Constitution over the head like birthright citizenship or remake the global economy like tariffs. And the order's language is dense and confusing. It's hard to tell on first reading what it actually does. So let's dig in. When we cut through the bureaucratic gibberish of Trump's executive order on elections, we can see the mayhem it would read.

The order first requires the Department of Homeland Security to compile a quote state citizenship list of eligible voters to be quote derived from federal citizenship and naturalization records, SSA records. save data and other relevant federal databases, and then delivered to state election officials.

The order is cagey about what exactly those state officials can and should do with the federal master lists, but it contemplates that states can cross-check them against local records and use them to purge eligible voter rolls, wink wink. Well, I see that you're registered to vote in this state, but you don't appear on the new federally created master state citizenship list, so Sayanara.

Of course, there's no way DHS can generate from scratch reliable state-by-state lists encompassing hundreds of millions of voters by election day, never mind by the order's stated deadline of 60 days before the election in early September. No such lists exist now as the order recognizes. Indeed, the order doesn't even know which federal databases might exist for these purposes, quote, and other relevant federal databases, end quote. Um, did you have any in mind?

Even if DHS does manage to slop together names called from assorted, partially overlapping but distinct federal databases, there's no way they'll have the time or resources necessary to ensure reliability. Are any of the listed voters actually ineligible? Do the lists omit other voters who are eligible?

In a court hearing last week, a Trump administration lawyer conceded that the state citizenship lists are bound to be flawed. Quote, no list is ever going to be perfect, a DOJ lawyer shrugged in court. It gets worse.

Trump's executive order instructs the U.S. Postal Service to design a new high-tech elections-only super envelope. Our cutting-edge mailers must be, quote, automation compatible. with quote designated markings provided by USPS, including a quote, unique intelligent mail barcode that quote facilitates tracking, and just for good measure, anything else quote, consistent with other requirements of this section, whatever the heck that means.

Turns out the Postal Service is just as baffled as anyone else and informed a federal court last week that it was still deliberating and had not, quote, reached any final decisions about the substance of a proposed rule, end quote. Translation, this executive order is completely unworkable, so we're spinning our wheels while hoping a court strikes it down so we don't have to deal with this impossible mess.

There's a dark purpose lurking here beneath the confusion of it all. Trump's executive order instructs the Postal Service that it can distribute these new envelopes only to people listed on the aforementioned state citizenship list. And the order tells the Postal Service that it can deliver mail-in ballots only in the designated envelope.

As a practical matter then, any person who does not appear on the dubious federally created state citizenship lists, one can be kicked off state voter rolls, and two, will not receive a mail-in ballot and cannot vote by mail. Trump's executive order now faces a legal challenge in federal court where two obvious problems have bubbled to the surface. First, there's just no way DHS or the Postal Service can comply with the order's outrageous demands.

Both have made that clear already in their court filings. DHS can't realistically put together these state citizenship lists with any degree of reliability, nor can the Postal Service design, manufacture, and distribute the new election-specific envelopes before September. Second, not a small deal, Trump's executive order is facially unconstitutional. Article 1's elections clause is about as clear as things get in our seminal parchment. Quote.

The times, places, and manner of holding elections for senators and representatives shall be prescribed in each state by the legislature thereof, but the Congress may at any time by law make or alter such regulations. End quote. So elections are up to the states, unless and to the extent that Congress passes laws regulating those elections. It's pretty easy. The Constitution purposefully gives the executive branch no power to administer elections.

Now, Trump tries a clever-ish end run with his executive order. It purports to regulate not elections per se, but rather DHS and the Postal Service, which fall within the executive branch. But the instructions Trump gives to these agencies would upend the voting process in conflict with the power granted by the Constitution to the states and Congress. Imagine if, for example, a president instructed the Army Corps of Engineers

to build 12 foot alligator moats around all polling places. Technically, he'd merely be giving instructions to one of his own executive branch agencies, but he'd certainly compromise state and congressional control over elections in the process. Despite the apparent unconstitutionality of the order, Federal District Court Judge Carl Nichols, a twenty nineteen Trump appointee who has, however, rejected prior efforts by Trump to expand his executive power,

Judge Nichols has expressed hesitancy to strike down this order swiftly. At a hearing last week, the judge wondered aloud if it might still be too early to act. Quote, why is there irreparable harm now? What if they don't remove a single voter? he asked. Right. Surely the list will be perfect, and nobody will be wrongly dropped during a process that DHS and the Postal Service themselves have acknowledged will be somewhere between implausible and impossible.

The judge ultimately promised to rule quickly and warned the government not to further implement the order until he issues a decision. I do believe the courts ultimately will strike down Trump's executive order on elections. But that outcome is not guaranteed, and there's much uncertainty about how and when it will be its ultimate fate. Thus far, this particular executive order has largely skimmed by unnoticed.

But if it becomes reality, even in some modified form, it will plunge the upcoming midterm elections into chaos. Thanks for listening everyone. Stay safe and stay informed.