Name: Birthright Citizenship and Mail Voting: Two Executive Orders, Two Very Different Days in Court
Uploaded: 2026-10-29T02:57:20.000Z
Duration: 2106
Description: Two executive orders came from the same desk, and the government gave the same defense for both: the challenge came too early, because nothing had happened to...

Two executive orders came from the same desk, and the government gave the same defense for both: the challenge came too early, because nothing had happened to anyone yet. The argument lost against the birthright citizenship order, and it has lost every time since. Against the mail voting order, the Supreme Court accepted it and held that the district court never had jurisdiction. The difference was the drafting. The birthright order commands agencies to reach a result: no department or agency shall issue citizenship documents. The mail voting order commands the Postal Service to run a rulemaking, and a rulemaking's outcome has to stay open.

Gwen and Marc trace how that choice of wording decides which body of law tests a policy, when the clock starts, who can get into court, and what a loss actually costs.

In this episode:

• Why the birthright order was ready for review immediately, while agency guidance under it would have arrived slowly, agency by agency
• Biden v. Nebraska, where a presidential policy was carried out by the Secretary of Education, and why losing on the statute left the Higher Education Act as a second route
• A "ladder" of losses: procedural, statutory, and constitutional, and why only the constitutional one takes a policy off the table for good
• Constitutional avoidance: the interpretive canon, the separate habit of not deciding things, and why avoidance works poorly when a question isn't close
• Trump v. Barbara: a 6–3 affirmance on two different grounds, and Justice Kavanaugh's statutory route, which would have left a door open for Congress
• The second birthright order, enjoined before its implementing guidance existed
• Executive Order 14399 on mail voting: deadlines attached to proposals, a Supreme Court stay for prematurity, a final rule issued three days before that ruling, and then the government arguing the challengers were too late
• The twist: the Postal Service is exempt from ordinary APA review, so the case the plaintiffs were told to wait for may not be available to them

The lesson isn't that one instrument protects a policy. Each one buys time and changes which question a court gets to first. The real drafting question is which loss you can live with.

Recorded September 11, 2026. These cases are moving quickly, and developments after that date aren't reflected here.

Hosted by Professor Gwendolyn Savitz and Dean Marc Roark of the University of Tulsa College of Law.

Next week: standing, and who is allowed to challenge agency action at all.

Tags/keywords: administrative law, executive orders, birthright citizenship, Trump v. Barbara, Biden v. Nebraska, constitutional avoidance, ripeness, standing, APA, Postal Service, mail voting, Supreme Court, law school