By circumventing Congress, President Trump’s executive order federalizes and destabilizes our elections

President Donald J. Trump’s recent executive order (EO), “Preserving and Protecting the Integrity of American Elections,” seeks to make sweeping changes to the American electoral landscape. While the order’s real-world impact is still unknown, as many provisions will be subject to agency interpretation and inevitable litigation, the order aims to:

• Require voters to provide documentary proof of U.S. citizenship
• Expand state access to federal databases to clean up voter rolls
• Enable more rigorous prosecution of election fraud
• Mandate that absentee or mail-in ballots must be received by Election Day

While some provisions might point in the right direction, Trump is making a critical error in pushing these measures through an EO rather than pursuing a more durable and decentralized solution via legislation. As a result, the order moves our country toward a more top-down election system and sets a dangerous, destabilizing precedent for future executive action.

Trump justifies his EO’s expansive reach by referencing election policies from India to Sweden. It can be useful to look abroad for inspiration; however, these countries are poor comparators, as they set election policy at the national level and bear little resemblance to the U.S. system. Indeed, Americans have long been proud of our decentralized election structure, which enhances election security and ensures local communities have election systems they can trust. Regrettably, this order wantonly chips away at what makes our system uniquely valuable.

Instead of issuing this EO, Trump should have urged Congress to act on these ideas as our Constitution envisioned. By vesting legislative powers in a bifurcated Congress, the Framers sought to protect people from tyranny as well as from one another. By circumventing Congress, the president undermines our federalist system, generates confusion, and sets a frightening precedent.

Mandates vs. Discretion

First, with 535 elected representatives and senators from all 50 states and six delegates from U.S. territories, Congress inherently represents the unique needs and interests of states and local communities. Legislation that passes through Congress naturally reflects that diversity. In fact, the original National Voter Registration Act of 1993, which established many of the election processes modified in Trump’s order, included exemptions for some states in recognition that federal law need not apply in all jurisdictions.

In contrast, the new EO places a nationwide mandate for processes previously left to states’ discretion. Key among these is the decision to accept absentee or mail-in ballots postmarked by Election Day. By making this new top-down policy, the 18 states impacted—including states like Alaska, where mail service plays a major role in the delivery of ballots from remote villages—will have no chance to oppose or amend the new standard before it takes effect. While there is no guarantee that Congress will incorporate the concerns of every state or local faction in any given bill, the legislative process is designed to reflect those needs far better than any executive action can.

Executive Orders vs. Acts of Congress

Second, EOs add chaos to an already unstable institution. Unlike a more durable act of Congress, they can be implemented or revoked with the stroke of a pen. Presidents sign hundreds of EOs each term, with each new administration frequently tossing the orders of the last. In fact, Trump has boasted about rescinding nearly 100 of his predecessors’ EOs within the first two months of his second term.

Accordingly, changes made to the election system in this recent EO are likely to last only as long as the incumbent president wishes. If a Democrat occupies the White House in 2029 or 2033, then they can rescind the order just as easily as it was issued. Americans have already seen monumental changes to election rules in response to the COVID-19 pandemic in 2020, along with a flood of subsequent state actions over the last four years. Issuing new election rules via an EO that can disappear after just one presidential election cycle is likely to create confusion and bring further instability to an institution in dire need of a calmer, more deliberate approach.

Bad Precedent Further Expands Executive Power

Finally, by issuing this order, Trump is setting the stage for a future president to not only rescind his orders but to replace them with their own extensive changes. Democrats famously struggled to pass their landmark voting rights legislation, H.R. 1, through Congress in 2021, much to the relief of Republicans. With this EO as precedent, a future Democratic president could seek to implement H.R. 1 (and/or any other election changes they wished) unilaterally.

Passing legislation through Congress may be slow, inefficient, and even ineffective, but the resulting statutes are durable and reflect input from stakeholders across the country. By issuing new election-administration mandates straight from the Oval Office, Trump is bypassing the fundamental legislative process in order to centralize and destabilize American elections.