Biazzo Law Files New Supreme Court Amicus Brief in USPS Ballot Mail Case After DOJ Refiles Emergency Stay Application
By Biazzo Law, PLLC
Updated September 9, 2026
Biazzo Law has filed a new amicus curiae brief in the United States Supreme Court in United States Postal Service, et al. v. California, et al. / Donald J. Trump, et al. v. League of Women Voters of Massachusetts, et al., No. 26A305.
This is the latest emergency-docket stage of the litigation involving Executive Order 14,399, the Postal Service’s Ballot Mail for Federal Elections final rule, and mail-in and absentee ballot procedures for the 2026 federal election.
Read Biazzo Law’s new Supreme Court amicus curiae brief here:
This article follows Biazzo Law’s earlier coverage of the same dispute:
This case also fits within the mission of the Biazzo Law Government Oversight Program, which focuses on nonpartisan constitutional accountability, separation of powers, agency authority, emergency litigation, public transparency, and lawful limits on government power:
Quick Answer: What Is the New Development?
The Department of Justice first filed an emergency stay application in No. 26A297 after the district court entered a temporary restraining order against mandatory enforcement of key parts of the USPS ballot-mail rule.
But the district court later issued a formal preliminary injunction that was substantively similar to the earlier temporary restraining order.
Because the order being challenged changed, DOJ withdrew the earlier 26A297 application and filed a new emergency application in No. 26A305 seeking a stay of the September 4 preliminary injunction.
Biazzo Law then filed a new amicus curiae brief in 26A305 because the Supreme Court was now reviewing a different order, in a different procedural posture, with a new application and updated arguments.
Why Did DOJ Withdraw the First Emergency Application?
DOJ’s first application, No. 26A297, targeted the district court’s August 27 temporary restraining order.
That order was labeled as a 14-day TRO, but the Government argued that it functioned like a preliminary injunction because it barred mandatory enforcement of several sections of the USPS final rule for federal-election ballot mail.
Then, on September 4, the district court issued a formal preliminary injunction that was substantively similar to the temporary restraining order and dissolved the TRO.
That created a procedural problem: the original Supreme Court application targeted an order that had effectively been replaced.
So DOJ withdrew the 26A297 application and filed a new application in 26A305 challenging the new preliminary injunction.
In plain English:
DOJ did not withdraw because the dispute ended. DOJ withdrew because the district court issued a new order, and the Government filed a new emergency application aimed at that updated order.
Why Did DOJ File the New 26A305 Application?
DOJ filed the new application because the preliminary injunction continued to block mandatory enforcement of the USPS final rule for the November 2026 election.
The Government argues that the final rule is a lawful and modest use of USPS authority over mail processing.
According to the Government, the rule governs envelope design, barcode information, ballot-mail preparation, portal submission, and USPS verification. The Government says USPS will not decide voter eligibility, will not maintain state voter rolls, and will not count ballots.
The Government’s position is that the rule regulates the U.S. Mail, not election administration.
The Government also argues that the injunction causes immediate harm because ballots have already begun entering the mailstream in some States and more will be mailed soon. Once those ballots are mailed, the Government argues, the final rule cannot be applied to them later.
What Do the Respondents Argue?
The respondent States and organizations strongly disagree.
They argue that the USPS rule is not modest and that it imposes new, mandatory, nationwide conditions on mail voting shortly before a federal election.
They contend that state and local election officials would need to redesign envelopes, obtain USPS approval, generate voter-specific Intelligent Mail barcodes, upload voter information into a new USPS portal, coordinate thousands of local systems, and survive USPS verification before ballot mail can be accepted.
They also argue that the rule risks disenfranchising eligible voters because noncompliant mailings may be returned rather than delivered.
The respondents’ position is that the preliminary injunction preserves the status quo for the November 2026 election while the courts determine whether the USPS rule is lawful.
What Did the District Court Do?
The district court entered a preliminary injunction limited to the November 2026 election.
The injunction does not bar all voluntary preparation. It allows States to voluntarily participate in envelope-design review and use the USPS portal.
But it prevents USPS from treating key parts of the final rule as mandatory and from verifying ballot envelopes for compliance before accepting them for mailing.
The district court concluded that the challengers were likely to succeed on claims that the rule exceeded USPS’s statutory and constitutional authority. It also concluded that immediate mandatory implementation threatened serious election-administration harms and potential voter disenfranchisement.
The Government appealed and sought emergency relief.
What Did Biazzo Law’s New Brief Argue?
Biazzo Law’s new amicus curiae brief supports respondents and denial of the stay application.
The brief focuses on a narrow statutory issue:
39 U.S.C. § 3661.
Section 3661 provides that when the Postal Service determines there should be a change in the nature of postal services generally affecting service on a nationwide or substantially nationwide basis, it must submit the proposal to the Postal Regulatory Commission within a reasonable time before the proposal’s effective date.
The statute also requires an opportunity for an on-the-record hearing before the Commission issues its advisory opinion.
Biazzo Law’s brief argues that this process matters here because the USPS final rule appears to make a significant nationwide change to the postal service available to election officials and voters.
Why Section 3661 Matters
Section 3661 is not a general policy objection.
It is a specific statutory procedure Congress enacted for certain consequential nationwide changes in postal service.
The Postal Regulatory Commission’s advisory opinion is not binding. USPS retains ultimate policymaking authority. But Congress still required USPS to follow a public process before implementing qualifying nationwide changes.
That process includes:
advance submission to the Postal Regulatory Commission;
an opportunity for an on-the-record hearing;
participation by USPS;
participation by users of the mail;
participation by an officer representing the general public;
and an advisory opinion before implementation.
Biazzo Law’s position is narrow:
The issue is not whether USPS can ever adopt ballot-mail processing rules. The issue is whether USPS had to follow Congress’s required process before making this nationwide rule immediately effective.
How Did the New Brief Build on Biazzo Law’s Prior 26A297 Brief?
Biazzo Law’s earlier 26A297 brief made the same core Section 3661 point.
But the procedural posture changed when the district court issued a formal preliminary injunction. The Government’s new 26A305 application also sharpened several issues, including:
the distinction between a TRO and a preliminary injunction;
whether the district court’s ruling should be stayed immediately;
whether USPS’s general powers under 39 U.S.C. §§ 401 and 404 override Section 3661;
whether respondents identified a specific statutory prohibition for ultra vires review;
whether the district court relied on theories not presented by the parties;
whether the injunction’s scope was proper;
and whether emergency relief should issue before the parties and lower courts fully address Section 3661.
Biazzo Law filed a new brief because the Court was now considering a new application directed at a new preliminary injunction.
The new brief updated the Section 3661 argument for that posture.
What Is the Core Argument of Biazzo Law’s 26A305 Brief?
The core argument is that Section 3661 supplies the specific statutory command the Government says is missing.
The Government argues that challengers cannot obtain ultra vires review unless they identify agency action that is entirely beyond delegated power and contrary to a specific statutory prohibition.
Biazzo Law’s brief responds that Section 3661 is that kind of specific command.
It identifies:
the agency: USPS;
the type of decision: a change in the nature of postal services;
the geographic scope: nationwide or substantially nationwide service;
the required recipient: the Postal Regulatory Commission;
the timing: within a reasonable time before the effective date;
and the process: an on-the-record hearing before an advisory opinion.
The brief argues that the final rule’s immediate effective date, nationwide operation, mandatory ballot-mail conditions, portal enrollment, voter-linked data submission, barcode verification, and return of noncompliant mailings strongly indicate that Section 3661 applies.
What Is Buchanan v. Postal Service?
Biazzo Law’s brief relies on Buchanan v. Postal Service, a Fifth Circuit case interpreting Section 3661.
Buchanan identified three factors for determining whether Section 3661 applies:
a meaningful change;
a qualitative alteration in the postal service available to users;
and a nationwide or substantially nationwide effect.
Biazzo Law’s brief argues that the USPS final rule likely meets all three.
First, the rule is meaningful because it turns prior recommendations into mandatory conditions for accepting federal ballot mail.
Second, the rule qualitatively changes service because election officials who could previously tender properly addressed and prepaid ballot mail must now comply with an integrated federal process before that mail will be accepted.
Third, the rule is nationwide because it applies to every state or local jurisdiction using USPS to send federal-election ballot mail.
Why General USPS Authority May Not Be Enough
The Government relies heavily on USPS’s broad authority under 39 U.S.C. §§ 401 and 404 to regulate the collection, handling, transportation, delivery, forwarding, return, and holding of mail.
Biazzo Law’s brief does not deny that USPS has substantial postal authority.
Instead, it argues that general authority and specific procedure can coexist.
USPS may have power to regulate certain aspects of mail preparation and handling. But when the rule creates a qualifying nationwide service change, Section 3661 may require a separate preimplementation process.
The brief’s point is straightforward:
A broad grant of authority to regulate the mail does not erase a specific statutory procedure Congress enacted for significant nationwide postal-service changes.
Why the Executive Order Does Not Resolve the Problem
The USPS final rule traces back to Executive Order 14,399.
But an Executive Order cannot override statutory conditions Congress placed on agency action.
Biazzo Law’s brief argues that presidential direction may instruct an agency to pursue lawful policy, but it cannot make a required statutory process optional.
That matters here because the Executive Order directed USPS to initiate rulemaking and set a timeline. But Section 3661, if triggered, required a Postal Regulatory Commission process before implementation.
In other words:
Executive urgency cannot substitute for statutory compliance.
Why This Is an Emergency Docket Issue
This case is in the Supreme Court’s emergency docket.
That means the Court is not deciding the full merits through ordinary briefing and oral argument. Instead, it is deciding whether the preliminary injunction should be stayed while appeal proceeds.
Emergency docket rulings matter because they determine what happens now.
Here, that timing is critical because the case involves ballot mail for the upcoming November 2026 election.
The Government argues that every day without implementation causes harm because ballots are already entering the mailstream.
Respondents argue that every day of mandatory implementation risks disruption, errors, returned mailings, and disenfranchisement.
Biazzo Law’s brief adds a third point:
Before the Court allows immediate nationwide implementation, it should account for Congress’s own preimplementation process for major nationwide postal-service changes.
Why This Is a Government Oversight Issue
This case fits directly within the Biazzo Law Government Oversight Program:
Government oversight is not partisan. It is institutional.
It asks whether public power is being exercised lawfully, transparently, and within constitutional limits.
This case involves:
executive orders;
federal agency authority;
Congress’s required procedures;
state election administration;
mail-in and absentee ballot systems;
the Postal Service’s nationwide operations;
public participation in agency decision-making;
emergency injunctions;
and the role of courts when government acts quickly before an election.
Those issues matter regardless of which administration is in office.
The rule of law requires agencies to follow the procedures Congress enacted, especially when a new rule affects a nationwide public service close to an election.
How This Blog Fits With Biazzo Law’s Prior Coverage
Biazzo Law has followed this dispute through multiple stages.
First, Biazzo Law covered the original Supreme Court emergency docket filing in Trump v. California, which involved Executive Order 14,399 before the final USPS rule had issued:
Second, Biazzo Law covered the broader emergency docket developments involving the mail-ballot case and the White House ballroom case:
Third, Biazzo Law filed and covered an amicus curiae brief in No. 26A297 after the district court entered a temporary restraining order against mandatory enforcement of the final rule:
Now, in No. 26A305, the issue has shifted again because the temporary restraining order has been replaced by a preliminary injunction.
That procedural change is why DOJ filed a new emergency application and why Biazzo Law filed a new amicus curiae brief.
Key Takeaway
This case is not simply about whether election integrity matters or whether mail voting should exist.
It is about lawful process.
The Government says the USPS final rule is a lawful use of postal authority and should be allowed to take effect immediately.
The respondents say the rule exceeds USPS authority, disrupts state election administration, and creates serious risks close to the election.
Biazzo Law’s amicus brief focuses on a narrower statutory point:
Congress created a process for significant nationwide postal-service changes. If the USPS ballot-mail rule triggers 39 U.S.C. § 3661, then USPS could not bypass that process simply because the rule was placed on an urgent executive timetable.
The Supreme Court does not need to decide every election-law, constitutional, or administrative-law question in emergency posture.
It can deny a stay, deny relief without prejudice, or request further briefing on Section 3661 before authorizing immediate nationwide implementation of the rule.
That is the core government-oversight point:
When Congress prescribes a sequence, agencies must follow it.
Frequently Asked Questions
What case did Biazzo Law just file in?
Biazzo Law filed a new amicus curiae brief in United States Postal Service, et al. v. California, et al. / Donald J. Trump, et al. v. League of Women Voters of Massachusetts, et al., No. 26A305.
What is No. 26A305?
No. 26A305 is the new Supreme Court emergency-docket application seeking a stay of the district court’s September 4, 2026 preliminary injunction against mandatory enforcement of key parts of the USPS final rule for federal ballot mail.
What happened to No. 26A297?
No. 26A297 was the earlier Supreme Court application seeking a stay of the district court’s temporary restraining order. DOJ withdrew that application after the district court issued a preliminary injunction that replaced the TRO.
Why did DOJ file a new emergency application?
DOJ filed a new application because the order being challenged changed. The earlier application targeted a TRO; the new application targets the September 4 preliminary injunction.
Why did Biazzo Law file a new brief?
Biazzo Law filed a new brief because the Supreme Court was considering a new application, a new order, and updated arguments in a changed procedural posture.
What does the USPS ballot-mail rule require?
The rule requires certain federal ballot-mail envelopes to satisfy design, automation, logo, barcode, portal, data-submission, and verification requirements before being accepted for mailing.
What does Biazzo Law’s brief argue?
The brief argues that 39 U.S.C. § 3661 likely required USPS to submit the rule to the Postal Regulatory Commission before making it effective because the rule appears to create a significant nationwide change in postal service.
Does Biazzo Law’s brief argue USPS can never regulate ballot mail?
No. The brief argues that USPS must follow Congress’s required procedure before implementing qualifying nationwide changes. It does not argue that USPS can never adopt lawful ballot-mail processing rules.
What is 39 U.S.C. § 3661?
Section 3661 requires USPS to submit certain significant nationwide changes in postal service to the Postal Regulatory Commission before the changes take effect and provides for an on-the-record hearing process.
What is the Biazzo Law Government Oversight Program?
The Biazzo Law Government Oversight Program is a nonpartisan initiative focused on constitutional accountability, separation of powers, agency authority, emergency litigation, public transparency, and lawful limits on government power.
Where can I read Biazzo Law’s new Supreme Court brief?
The filed brief is available here:
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