An editorial note atop Andy Craig’s June 26 article in the UnPopulist, “The Unfortunate Necessity of Court Packing to Stop America’s Authoritarian Drift,” opens with a striking observation: “Desperate times require desperate measures.” That aphorism is ancient: it dates back to Hippocrates’s precept that very sick patients require aggressive treatment. Its wisdom has traveled through centuries: in Hamlet, King Claudius explains that “Diseases desperate grown / By desperate appliance are relieved, / Or not at all.” Craig’s article diagnoses a social pathology; he prescribes adding four new Justices to the Supreme Court. He concedes that court packing will be very hard on the patient but explains that “sometimes a smaller harm is necessary to avoid a far bigger one.” 

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Number 27 in our series of occasional roundups on election law and policy, focusing this time on issues of electoral reform that will endure beyond the midterm battles of the moment:

• Reform failure: One reason reaction has been muted to the Supreme Court’s new decision in NRSC v. FEC, striking down limits on party coordination of spending with candidates, is that many close observers on the left and center agreed that the existing rules were counterproductive [Samuel Issacharoff, NYU Law Democracy Project (calling ruling a “welcome correction” and citing what “Pam Karlan and I have called the hydraulics of campaign finance regulation: money under pressure does not disappear, it finds the path of least resistance”); Richard Pildes, Rick Hasen]. 
• “In my view, there are plausible policy reasons to specify that all ballots should be in hand, not simply in the mail, by Election Day. But the Supreme Court was not presented today with that, or any, policy question” [my statement on the Supreme Court’s Watson v. RNC for Cato, together with Stephen Richer’s statement]. More from me: Maintaining accurate and up-to-date voter rolls should be ranked as a real reform priority, and Maryland is falling short [Free State Notes; also, why Maryland’s recent primary mail ballot foul-up didn’t pose a practical integrity issue, though it was embarrassing and confused voters (Alexander Shur, Votebeat; Christine Condon, Maryland Matters)]. 
• “Report: ‘Understanding How Proportional Representation Might Work in New York City’ ” [Jack Santucci (and John Ketcham}]; Discontent with California’s top-two system contributing to interest in multiparty options [Dennis Lytton, Liberal Currents]; Rob Richie discusses the proportional-ish voting method known as cumulative voting, as well as the promise of ranked-choice balloting in presidential primaries [Expand Democracy]; A caution from the Netherlands on the difficulties of national coalition formation under proportional representation [Tarunabh Khaitan and Mike Winterwerp, Social Europe]. 
• I and others have generally praised as admirable the Nebraska–Maine approach of divvying up a state’s electoral votes based on congressional district. But what if it has a dark sibling that would enable a state to use gerrymandered districts to hand most or even all of its electoral votes to a candidate who loses its popular vote? [Henry Noyes, Marquette Law Review via Electoral Law Blog]
• Reformers of an earlier day structured the Federal Election Commission so appointees from no one party could control it, which made for either partisan fairness or a kludgy guarantee of ineffectiveness, depending on who you ask. Will that structure survive the Supreme Court’s ruling in Trump v. Slaughter? [Bob Bauer, Executive Functions] 
• Meaningful representation of coherent geographical areas in national election processes seems to be less and less valued as time goes on, as witnessed by both the race to the bottom on gerrymandering and the continued momentum behind the National Popular Vote Interstate Compact electoral vote deal [Philip Wallach, American Enterprise Institute, with a discussion of “general ticket voting,” banned since the Apportionment Act of 1842, which was designed to award the party that won overall in a state its entire House delegation]. 

The US government operates on a division of labor: the legislature makes law, the executive implements law, and the judiciary interprets law. Two years ago, in Loper Bright Enters. v. Raimondo, the Supreme Court definitively rejected agencies’ appropriation of the power to interpret ambiguous statutes. Here, the Cato Institute filed an amicus brief asking the Court to reject agencies’ appropriation of the power to interpret ambiguous regulations. Allowing agencies to wield both the power to make law and the power to interpret it violates the separation of powers, encourages agencies to make bad rules, and displaces traditional legal rules.

Petitioner Kendrick Jarrell Beaird entered a guilty plea to a single count of felon-in-possession of a firearm. He faced an enhanced sentence for possessing a “large capacity magazine.” This finding was based on the district court’s deference to US Sentencing Guidelines commentary, which defined “large capacity magazine” as any magazine that accepts more than 15 bullets of ammunition. 

The Supreme Court has held that because the US Sentencing Commission “drafts the guidelines as well as the commentary interpreting them,” the latter should receive the deference afforded to an agency when interpreting its own regulations. This means an agency’s interpretation becomes the “ultimate criterion” for what an agency’s own regulation means.

Such deference gives agencies both the power to make the law and to determine what the law means, collapsing the Constitution’s careful division of powers. It also encourages them to write regulations poorly and then come up with convenient post hoc interpretations. This deference is uniquely dangerous in the hands of the Sentencing Commission, given how insulated it is from public pressure and political accountability. 

Damage to the coherence of the law as a whole has come as deference to agencies replaces core legal principles—such as the rule of lenity—with regulators’ own glosses. The Court should end agency deference and send Mr. Beaird’s case back for further proceedings.

The excerpt below is Chapter 1 in the new Cato Institute book, A History of Repeated Injuries, Threats to Liberty Since American Independence. In this chapter, “The Purpose and Limits of Government,” Cato Senior Fellow Roger Pilon, founding director emeritus of Cato’s Robert A. Levy Center for Constitutional Studies, reads the Declaration of Independence as an argument for legitimate government, dedicated to securing our natural rights to life, liberty, and the pursuit of happiness. Yet today, he writes, “too many Americans have lost touch with those principles and the ways they secure our freedom. Indeed, we have imposed on ourselves many of the abuses that drove the Founders to revolution.” This chapter explores deeply the moral foundations of free societies.

THE PURPOSE AND LIMITS OF GOVERNMENT

Roger Pilon

When America’s Founders declared our independence from English rule in 1776, they did so through a document that has inspired countless millions around the world ever since: our Declaration of Independence. Written from “a decent Respect to the Opinions of Mankind,” the Declaration set forth not only the immediate causes that impelled our political separation but a moral, political, legal, and economic vision that spoke to the ages. In a few brief lines, penned near the start of our struggle to secure our independence, the Founders distilled their philosophy of government: equal liberty for all, defined by rights to life, liberty, and the pursuit of happiness, secured by a government instituted for that purpose, its limited powers derived from the consent of the governed. 

Yet today, too many Americans have lost touch with those principles and the ways they secure our freedom. Indeed, we have imposed on ourselves many of the abuses that drove the Founders to revolution. We are not alone in that, of course. Around the world today, even where the people purport to rule, we see expanding, largely unaccountable governments limiting liberty and trampling rights. As the 21st century’s authoritarianism grows, we are thus called once again to breathe life into the foundational principles that have ever defined us as a people. 

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Earlier this week, Judge Emmet G. Sullivan (D.D.C.) ruled that the United States Postal Service’s (USPS) June 2, 2026, proposed rulemaking on mail ballots violates an agreement it had previously entered into with the National Association for the Advancement of Colored People (NAACP). The defeat is the latest in President Trump’s rough, two-week stretch of efforts to federalize broad swaths of American election administration. 

Background

On March 31, 2026, President Trump issued his second Executive Order pertaining to election administration (“Ensuring Citizenship Verification and Integrity in Federal Election”). Among other things, the EO contemplates an expanded role of USPS in mail voting. In the past, the USPS has simply acted as a mail carrier for election mail—just as it does for all other customers. Election officials prepare the mail voter list, assemble the mail packet, label the outbound envelope for the specific voter, and then deliver it to USPS for delivery. 

Under the president’s EO, states would be required to provide advance notice of their intent to use USPS for election mail. Then, 30 days before the election, states must provide USPS with a detailed list of all voters who will use a mail ballot. Under Trump’s Executive Order, the USPS is tasked with ensuring that only people on that list receive ballots and people not on the list don’t receive a mail ballot. Never before has USPS had a role in voter eligibility. For more on the EO, see my previous Cato blog post here.

NAACP lawsuit

The current NAACP lawsuit arises out of a previous lawsuit filed by the NAACP against the USPS, which alleged that USPS delivery delays disenfranchised voters. In December 2021, the parties settled the lawsuit, and USPS agreed to “prioritize monitoring and timely delivery of election mail” and to “issue ‘National Guidance documents’ for every national election cycle through 2028 that ‘reflect the Postal Service’s formal nationwide Election Mail practices and policies for prioritizing the monitoring and timely delivery of Election Mail.’ ” (At page 3).

According to Judge Sullivan, the proposed rulemaking would violate that settlement agreement. Therefore, the court granted the NAACP’s “Motion to Enforce Compliance with the Settlement Agreement.” (At page 19). Celebrating the win, NACCP’s general counsel, Anthony P. Ashton, said, “The proposed U.S.P.S. changes would have created unnecessary and unlawful barriers, in direct violation of the U.S.P.S.’s mandate to prioritize election mail.” 

Latest in a String of Losses

The ruling is another setback in President Trump’s effort to expand the federal government’s role in administering the November midterm elections. Last week (June 25, 2026), Judge Talwani (D.Mass) ruled against Trump’s Executive Order that prompted the USPS rulemaking (which prompted the NAACP lawsuit). Talwani ruled that the president lacked “constitutional or statutory authority” for the vast majority of the election aims in the Executive Order (at page 32).

Several other losses were noted by my colleague Walter Olson in his most recent election policy round (#26). They include:

• June 27, 2026: Judge Bissoon (W.D.Pa.) dismissed the DOJ’s lawsuit against Pennsylvania for its complete voter rolls, including “highly sensitive personal identifiers.” The DOJ is now 0–11 against the states in such lawsuits.
• June 25, 2026: Judge Casper (D. Mass) converted a temporary injunction against Trump’s first election Executive Order into a permanent injuction.
• June 24, 2026: The Sixth Circuit affirmed one of the 11 DOJ losses in its voter registration database lawsuits against the states.
• June 22, 2026: Judge Sooknanan (D.D.C.) held that the federal government’s creation of the SAVE citizenship database violates the Social Security Act, the Privacy Act, and the Administrative Procedures Act.

Where Will President Trump Turn?

Perhaps given his consistent defeats in court, Trump has applied renewed pressure on the US Senate to pass the SAVE America Act, which would impose new federal election administration dictates on the states, including proof of citizenship requirements, identification requirements, and perhaps limitations on mail voting. The administration also continues exploring the extent to which it can leverage the investigatory power of the FBI to shape election administration. 

Never a dull moment in election administration. Until next time, Happy Fourth, and happy Primary Election to Arizona (July 21).

On June 30, the Supreme Court struck down President Trump’s executive order purporting to limit birthright citizenship. That order would have denied citizenship to children born on US soil if their parents were in the United States only temporarily or illegally. But the Court held that the Fourteenth Amendment guarantees citizenship to such children, as it does for nearly all children born on US soil. The Court’s opinion by Chief Justice John Roberts correctly interprets the original meaning of the Fourteenth Amendment and ensures that nearly universal birthright citizenship will continue as the law of the land, just as it has since the English common law.

The Fourteenth Amendment commands, “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.” The key debate in this case hinged on the meaning of the middle portion of that sentence: “subject to the jurisdiction thereof.” Looking at history, the Court found that this phrase had a clear meaning: jurisdiction is about being subject to a nation’s laws. 

“Before the Revolution, the American colonists—like all in the British Empire—were considered subjects of the sovereign.” And this relationship between the King and his subjects came with both responsibilities and benefits. “The King, Blackstone explained, owes those ‘born within the dominions’ a duty of ‘protection.’ … And ‘in return for that protection,’ those ‘born within the dominions’ owe the King a ‘duty’ of ‘allegiance.’” This reciprocal relationship extended to everyone born on soil controlled by the King. “A foreign mother could enter the British Isles, give birth, and leave with her child the very next day, and that child would remain a British subject. Why? Because the child owed an implied allegiance to the sovereign who protected him at his birth.” 

Of course, America has no king, but many aspects of English common law were adopted by analogy after independence. “This view crossed the Atlantic with the colonists—and was adopted with little fanfare after the Revolution, as ‘subject[s]’ of the sovereign became ‘citizens’ of the States. And the same logic applied to children born in the states: if they were born subject to the laws of the state, they were also born citizens of the state.” 

As Chief Justice Roberts lays out, the logic of this rule also explains its exceptions. Ambassadors and diplomats from another country have long been held to have “diplomatic immunity,” meaning they are not subject to all the laws of the country they temporarily inhabit. So, children born to ambassadors and diplomats were not “subject” to the country of their birth and thus not born citizens. In America, the same logic led states to conclude that those born on Indian tribes were also not automatically citizens of the state because they, too, were not fully subject to state law.

These were the only two recognized exceptions to birthright citizenship until the Supreme Court’s “odious decision of Dred Scott v. Sandford” in 1857, which held that the rule of birthright citizenship “excluded all those descended from slaves.” After the Civil War, the Reconstruction Congress sought to both overrule Dred Scott and prevent any future diminishment of the rule of birthright citizenship. First, in 1866, the Civil Rights Act declared that “all persons born in the United States and not subject to any foreign power, excluding Indians not taxed, are hereby … citizens of the United States.” Then, to avoid all doubt and remove the power of future Congresses to revoke this rule, the Fourteenth Amendment guaranteed that all persons born in the United States and “subject to the jurisdiction thereof” are citizens.

As Chief Justice Roberts sums up, the meaning and purpose of this language is made clear by the history leading up to it. “Any child who was born ‘under the protection of’ the United States—that is, any child for whom no extraterritorial fiction applied—was made a citizen, for he owed a natural ‘allegiance’ (and thus ‘obedience’) to the Nation.” In practice, that means the Fourteenth Amendment guaranteed citizenship to all born in the United States, except those born to diplomats or within Indian tribes. Immigrants, even those here illegally or only for a short time, are subject to U.S. law and thus bound to both its restrictions and its benefits. The default rule of birthright citizenship, therefore, applies to them.

The Court’s decision is exactly right. In Cato’s amicus brief, we argued that “The Fourteenth Amendment was meant to extend its broad protections to ‘all persons,’ with only narrow exceptions rooted in the common law. … ‘All persons’ includes the children of temporary visitors and aliens.” Just as we urged, the Court rejected the government’s cramped view, which is that “jurisdiction” refers only to those subject to “political jurisdiction” who have “lasting ties to create allegiance” to the United States. In the government’s view, this meaning of jurisdiction would exclude the children of parents who are temporarily or illegally in the country. The dissents by Justices Thomas, Alito, and Gorsuch (and a partial concurrence by Justice Kavanaugh) each make some version of this argument (though mostly limited to temporary visitors rather than unauthorized residents). 

But as the majority opinion put it, “there is scant evidence for this dramatically revisionist view.” To prove its case, the government would have had to show that “At some point before the ratification of the Fourteenth Amendment, … it became ‘deeply rooted’ in this country that ‘[d]omicile is the key concept that creates allegiance.’” But history does not support such a change in the common law. Instead, right up to the Fourteenth Amendment’s enactment in 1868, legal sources “defined ‘allegiance by birth’ just as the British did—as ‘the tie or duty’ owed by one who is ‘born within the dominions and under the protection of a particular sovereign.’”

The Court’s decision is a reaffirmation of a rule that had been nearly undisputed for over a century, since the Supreme Court’s decision in United States v. Wong Kim Ark (1898). As the Court explained, “What the Court held in Wong Kim Ark was simple: the Citizenship Clause incorporated the common law and granted citizenship to nearly all children born in the United States.” It is the government’s view that would have massively upended American law, injecting tremendous uncertainty into our process for citizenship. But because the Supreme Court ruled on constitutional grounds, it is now certain that no future president or Congress can alter this rule. 

Those born on American soil are American citizens, subject to our laws and guaranteed our protection. This rule has helped generations of immigrant families quickly assimilate into equal status as Americans. The rule’s continued vitality and constitutional protection are something to be celebrated.