How the Major Questions Doctrine Limits Presidential Power Over Elections

Donald Trump has sought to "nationalize" control over elections, asserting sweeping presidential authority to oversee voting processes. In a recent analysis for the Election Law Blog, legal scholar Richard Bernstein explains why these efforts conflict with the Major Questions Doctrine.

Briefing has begun in lawsuits challenging President Trump’s latest attempt to expand federal executive power over elections. This includes Executive Order 14399, which directs the U.S. Postal Service (USPS) to provide states with lists of voters eligible to vote by mail and to block mail-in ballots from those not on USPS lists. The Society for the Rule of Law—with Bernstein as counsel—filed an amicus brief arguing that the Major Questions Doctrine applies to federal agency interpretations of election authority. The brief is available here.

The lack of legal authority for EO 14399 is so evident that a federal court could invalidate it without relying on the Major Questions Doctrine. However, the doctrine provides an additional legal basis for striking down the order.

What Is the Major Questions Doctrine?

Under the Major Questions Doctrine, federal agencies must have clear congressional authorization before regulating significant policy areas. As the Supreme Court ruled in West Virginia v. EPA (2022):

"Before a federal agency has authority to regulate a major question, a statute must provide 'clear congressional authorization.'" West Virginia v. EPA, 597 U.S. 697, 723-24 (2022)

"[M]odest words, vague terms, or subtle devices' do not suffice." Id. at 723

Courts presume that Congress intends to make major policy decisions itself rather than delegate them to agencies. This principle reflects both separation of powers and legislative intent. As the Supreme Court noted in Learning Resources, Inc. v. Trump (2026):

"[A] reasonable interpreter would not expect Congress to pawn . . . a big-time policy call . . . off to another branch." Learning Resources, Inc. v. Trump, 146 S. Ct. 628, 641 (2026)

Why the Doctrine Applies to Election Regulations

The Major Questions Doctrine is particularly relevant to federal election regulations because elections determine who exercises federal legislative and executive power. As James Madison wrote in Federalist No. 51:

"[A] dependence on the people" through elections "is, no doubt, the primary control on the government."

The Elections Clause of the U.S. Constitution vests authority over federal election rules primarily in state legislatures, with Congress having the power to alter these rules. Congress has frequently exercised this authority, but allocating such power to the President would represent a fundamental departure from the constitutional framework.

Our federalist election system, shaped by the Elections and Electors Clauses, promotes election integrity by decentralizing rulemaking and administration. This structure ensures transparency and reduces the risk of concentrated power undermining public trust in elections.