The Constitution and the Postal System

President-elect Donald Trump has revived talk from his previous term of moving to privatize the United States Postal System. To be sure, such a process would be complicated and would likely require an act of Congress.

The Constitution in Article I, Section 8 grants Congress the ability “to establish Post Offices and post Roads,” including the power to control land for the “post roads” to carry the mail, and the buildings needed to maintain a mail delivery system.

The Postal Clause had its roots in the Articles of Confederation, which preceded the Constitution. That stated that the government “shall also have the sole and exclusive right and power of . . . establishing or regulating post offices from one State to another, throughout all the United States, and exacting such postage on the papers passing through the same as may be requisite to defray the expenses of the said office.”

During the 1787 Constitutional Convention in Philadelphia, the Committee of Detail crafted language that gave the federal legislature the right to create post offices. The convention then added the ability to create “post-roads” that had a broader impact on the growing nation by developing early transportation networks that facilitated commerce between the states.

In Federalist 42, James Madison noted the significance of this enumerated power granted to Congress. “The power of establishing post-roads, must in every view be a harmless power; and may perhaps, by judicious management, become productive of great public conveniency. Nothing which tends to facilitate the intercourse between the States, can be deemed unworthy of the public care,” he concluded.

In 1792, Congress and President George Washington officially created the Post Office with the Postal Act of 1792. Congress granted the postmaster general broader powers. The law also protected privacy by making it illegal for postal officials to open mail unless it was undeliverable. Offenders faced up to six months in jail and a $300 fine.

During the 1800s, there was a debate over the ability of the federal government to acquire buildings and roads for post offices, which was settled by the Supreme Court in Kohl v. United States (1875). In his majority opinion, Justice William Strong affirmed the power of the government to seize private land for a post office and customs house under the doctrine of “eminent domain” in line with the Fifth Amendment’s Takings Clause. By that time, the Post Office Consolidation Act of 1872 had elevated the postal system to a cabinet-level office in the executive branch under the administration of President Ulysses S. Grant.

The most significant modern governmental change to the post office came with the passage by Congress of the Postal Reorganization Act of 1970, what was signed into law by President Richard Nixon in Aug. 12, 1970.  A postal strike earlier in the year led to congressional action. The Reorganization Act formed the United States Postal System to replace the Post Office Department.

The postal system was repositioned as an independent establishment of the executive branch. The president with the consent of the Senate now appointed nine of the 11 members to a board of governors to operate the service. The board appointed the postmaster general and a deputy postmaster general.

“The United States Postal Service shall be operated as a basic and fundamental service provided to the people by the Government of the United States, authorized by the Constitution, created by Act of Congress, and supported by the people,” the act read. The service was also required to “provide prompt, reliable, and efficient services to patrons in all areas and shall render postal services to all communities.” The service was intended to be financially self-sufficient, and postal workers were granted union bargaining rights. In return, major tax subsidies were eliminated as a funding source. Another act of Congress in 2006 required the Postal Service to pre-fund retirement health and pension benefits for its employees.

Since then, the United States Postal Service has seen steady losses in its annual financial statements, which have led to calls for reforms and changes. In 2022, the Post Service Reform Act eliminated the pre-funding benefits requirement, but in its most recent fiscal year, the service lost $9.5 billion.

Among the suggested reforms are changes to the postal service’s statutory commitment to provide “prompt” services to all patrons in all communities. According to legal observers, such service changes or broader privatization measures would likely require an act of Congress to implement.

On Dec. 16, 2024, Trump confirmed at a press conference that he was considering Postal Service privatization. “It’s an idea that a lot of people have liked for a long time. We’re looking at it,” he told the press.

Scott Bomboy is editor in chief of the National Constitution Center.