When it comes to elections, the U.S. Constitution is clear: Determining their time, place, and manner falls squarely upon the shoulders of the state legislatures with limited oversight from Congress. Nowhere is the president granted the power to regulate elections.
Yet through Executive Order 14019, President Joe Biden has ordered federal agencies to engage in overtly political activities that will affect elections, while violating the Constitution and federal law in the process.
The bad news is this executive order brings the threat of federal election interference to every state’s doorstep. And with the countdown to 2024 well underway, time is running out to stop Team Biden’s scheme. The good news is Congress and the states can stop the threat if they work together and work quickly.
In one of his first acts after taking office, Biden signed Executive Order 14019, titled “Promoting Access to Voting.” His order commanded every federal agency to use taxpayer-funded resources to engage in voter registration and get-out-the-vote efforts. These are overtly partisan activities reserved for political parties, not government.
Through food stamps, public housing, Medicaid, and other welfare programs, federal agencies have the resources and ability to target millions of potential voters across every state in the country — potential voters whose information is required to enroll in these programs and who are statistically more likely to vote Democrat.
The order went even further by requiring agencies to allow third-party groups, hand-selected by the White House, to engage in voter registration activities on federal agency premises.
To date, the administration has refused to disclose the full details of the agencies’ plans to carry out this order, nor has it disclosed which groups the White House has approved for special access and taxpayer-funded resources to carry out their mission.
But Team Biden has a big problem. The executive order is illegal. State attorneys general, with the help of congressional allies, can work together to stop this scheme.
Using the power of the courts, state attorneys general should sue the Biden administration seeking a permanent injunction barring agencies from carrying out Executive Order 14019. There are at least three legal claims they can make.
First, Biden’s executive order violates the National Voter Registration Act (NVRA) and the Administrative Procedure Act (APA), as the executive order directs all agencies to assist in registering voters whether or not they are legally authorized to do so under the NVRA, which goes beyond the statutory authority of these federal agencies that have been neither explicitly authorized under current law to register voters nor designated by the state to do so.
Second, the executive order violates the elections clause of the Constitution, since the order commands executive agencies to engage in activity that affects the time, place, and manner of elections without statutory authority to do so. It infringes on the constitutional rights of state legislatures to regulate elections with limited oversight from Congress. Even if the administration could point to a federal statute clearly granting it the secretive, unbridled power over elections that it is seeking to exercise through this executive order, such a delegation of power would be unconstitutional regardless. The powers at issue here, outlined in the elections clause, are clearly legislative powers. Congress cannot delegate powers that are strictly and exclusively legislative, even if it wished to.
Third, the executive order violates a federal law known as the Anti-Deficiency Act, since it requires agencies to expend funds that Congress never authorized these agencies to spend. The Anti-Deficiency Act strictly forbids this.