Congress is almost certain to win any court battle over the executive trying to supersede the Postal Reorganization Act.
Donald Trump’s latest brainstorm in reorganizing the executive branch is to move the U.S. Postal Service into the Commerce Department. As a policy matter, there is certainly a case for shaking up how the USPS works, but it would be more prudent to privatize or streamline more of its functions and operations; putting it under the control of a cabinet department is the opposite of that. Moreover, the USPS budget is six times the size of the budget of Commerce (whose operations consist largely of weather, fisheries, and the census), and its workforce is more than ten times the number of people employed by Commerce, so this would immediately make the Postal Service the dog on which the Commerce Department is merely the tail.
But policy aside, Trump’s proposal would face especially formidable legal obstacles unique to the Postal Service, even aside from the inevitable battles this would trigger with the powerful unions that represent the USPS workforce. Trump would need to directly challenge the power of Congress — and do so on uniquely powerful congressional turf.
By the Postal Reorganization Act of 1970, the Post Office Department was statutorily taken out of the cabinet and turned into the United States Postal Service, an “independent establishment of the executive branch,” aimed to function more like a semi-private entity that is (in theory, but not in practice) self-funding and able to compete with private companies in lines of business such as package delivery. Title 39, which governs the USPS, is a highly detailed statutory scheme that sets up a management structure (the Board of Governors), a regulatory agency that exists solely to regulate the Postal Service (the Postal Regulatory Commission, formerly known as the Postal Rate Commission), the powers of the Postal Service (such as when it is permitted to sue and be sued), and many other aspects of its independent existence. There is simply no way to square the statute with returning the USPS to the control of a cabinet-level agency, which is how it functioned between 1829 and 1971 and what Congress very explicitly and in great detail brought to an end 55 years ago.
But wait, I can hear some of you saying: Aren’t “independent” agencies an abuse of the Constitution’s separation of powers? Shouldn’t Trump be challenging the hoary bromide of an independent agency exercising executive powers?
Yes, he should. But he’s going to need to persuade the Supreme Court to go with him. And the Postal Service is about the worst case for that.
Mail delivery, along with its associated tasks such as building post offices, is a traditional executive function. We had a postmaster general as far back as 1775 (when the Continental Congress designated one of its own, Benjamin Franklin, to handle the job), and it was under presidential control from 1789 on, with the PMG becoming a cabinet official under Andrew Jackson. For much of the 19th century, it was by far the largest category of federal workers (especially civilians). Patronage control over postmasters was a huge prize for presidents; the Civil War was brought on in part due to Southern fear that Abraham Lincoln would appoint Republican postmasters who would end the de facto ban on delivering abolitionist mail. But the mail was also long a subject of heavy congressional regulation, from setting the price of stamps to naming post offices to mandating the franking privilege for congressional mail. The long tradition of congressional lawmaking would be strike one against letting Trump just ignore the PRA.
Mail delivery, however, is not an inherently executive function. Most of the “independent” agencies involve some subset of police powers, by which the agencies rule over the citizenry. The Postal Service does little of that; most of its rules govern either itself or how the public uses its services. The great bulk of its workforce does a basically similar job to what people who work for Federal Express, UPS, or Amazon do — retail service in exchange for a price. The Postal Reorganization Act was passed under Congress’s explicit power under Article I, Section 8 to “establish Post Offices and post Roads.” The congressional power may be at its strongest in this instance, given both that the congressional role is explicit and textual and that nothing in Articles I or II requires the post office function to be run by an executive department. Congress could, if it wished, contract it out entirely to Jeff Bezos, leaving the executive branch to do little more than oversee payment to the contractor. Congress did not go that far, but in deciding how post offices and post roads should be managed through a semi-public entity with half a million permanent employees and perhaps as many temporary and seasonal workers, operating in every congressional district, it exercised a core and traditional legislative power that the courts would be extremely reluctant to overturn.
If Trump decides to die on this hill, that’s exactly what he’s likely to do. Congress is almost certain to win any court battle over the executive trying to supersede the Postal Reorganization Act.