The Postal Clause’s grant of ‘broad power’ to Congress over a system in crisis

The United States Postal Service, now under criticism from President Donald Trump, has its roots in the U.S. Constitution, and the U.S. Supreme Court recognized Congress's "broad power" to act in matters concerning posts more than a century ago.

The controversy now engulfing the postal system involves such directives from postal officials as banning postal workers from making extra trips to ensure on-time mail delivery and removal of high-speed mail-sorting machines and public collection boxes in numerous states, all of which portends problems with absentee and mail-in ballots in the November election.

When the Constitution was ratified in 1789, the Postal Clause in Article I, Section 8 gave Congress the power "To establish Post Offices and post Roads" and “To make all Laws which shall be necessary and proper” for executing this task.

In 1981, the Supreme Court in United States Postal Service v. Council of Greenburgh Civic Associations took up a constitutional challenge to a federal law prohibiting the placement of unstamped “mailable matter” in a letterbox approved by the United States Postal Service. Violators faced a fine. The Greenburgh Civic Associations had a practice of delivering its messages to residents by placing unstamped notices in the residents' home mailboxes.

After the local postmaster warned the association it could be fined if it continued its practice, the association filed suit, arguing that enforcement of the law would inhibit communication with local residents and thus deny them their First Amendment speech and press rights.

Before analyzing the challenge, then-Associate Justice William Rehnquist, who wrote for a unanimous court, said the case was a good example of Justice Oliver Wendell Holmes's aphorism that “a page of history is worth a volume of logic.” Rehnquist then proceeded to recount the history of the postal system:

“By the early 18th century, the posts were made a sovereign function in almost all nations because they were considered a sovereign necessity. Government without communication is impossible, and until the invention of the telephone and telegraph, the mails were the principal means of communication.

“Given the importance of the post to our early Nation, it is not surprising that when the United States Constitution was ratified in 1789, Art. I, § 8, provided Congress the power 'To establish Post Offices and post Roads' and 'To make all Laws which shall be necessary and proper' for executing this task. The Post Office played a vital yet largely unappreciated role in the development of our new Nation. Stagecoach trails which were improved by the Government to become post roads quickly became arteries of commerce. Mail contracts were of great assistance to the early development of new means of transportation such as canals, railroads, and eventually airlines. During this developing stage, the Post Office was to many citizens situated across the country the most visible symbol of national unity.”

Congress's broad power over the nation's mail system was recognized in the 1878 Supreme Court decision Ex parte Jackson, according to Rehnquist. In that decision, the Justices wrote:

“The power vested in Congress 'to establish post-offices and post-roads' has been practically construed, since the foundation of the government, to authorize not merely the designation of the routes over which the mail shall be carried, and the offices where letters and other documents shall be received to be distributed or forwarded, but the carriage of the mail, and all measures necessary to secure its safe and speedy transit, and the prompt delivery of its contents…. The power possessed by Congress embraces the regulation of the entire Postal System of the country.”

The postal system has been the target of numerous lawsuits over its many years, and a good number have been First Amendment challenges involving what kind of materials can be mailed. But what may be coming as a result of recent changes enforced by the relatively new postmaster general likely will be unique.

Six state attorneys general reportedly have been meeting to discuss what legal actions are possible to stop changes at the postal system that will hinder timely delivery of absentee and mail-in ballots in the general election. Pennsylvania Governor Tom Wolf, reacting to a recent warning by the postal system, has taken a proactive step by asking the state supreme court to extend deadlines for mail-in ballots to be received in the November election. It's not known yet if Wolf's action will face opposition.

But there already are active lawsuits by voters and vote organizations in at least 11 states challenging other obstacles to absentee voting, such as mail ballot deadlines, failure to provide prepaid postage, absentee ballot witnesses and notarization, among other issues.

The challengers in these lawsuits are relying on the First and 14th Amendments as well as Section 2 of the Voting Rights Act of 1965 and section 1983 of the Civil Rights Act of 1871. In those Covid-19 election cases that have reached the Supreme Court, the Justices generally have deferred to state officials.

In the end, however, if there is a crisis in the postal system's ability to handle absentee ballots this November or a crisis in voters' confidence in the system, the Postal Clause states, and the U.S. Supreme Court has made clear, Congress has the power over and responsibility for the postal system.

Marcia Coyle is a regular contributor to Constitution Daily and the Chief Washington Correspondent for The National Law Journal, covering the Supreme Court for more than 20 years.