High Country Advocate Staff
Ruling Ignores President’s Duty to Enforce Federal Law Against Non-Citizen Voting
WASHINGTON, D.C. – U.S. District Judge Colleen Kollar-Kotelly ruled Friday that President Donald Trump’s executive order requiring documentary proof of citizenship for voter registration is unconstitutional, dealing a blow to the administration’s election integrity efforts. But a careful examination of the Constitution reveals serious flaws in the judge’s reasoning.
In her opinion, Judge Kollar-Kotelly declared that “our Constitution assigns responsibility for election regulation to the States and to Congress” and that “the Constitution assigns no direct role to the President” in setting voting qualifications or regulating federal election procedures. She ordered the U.S. Election Assistance Commission permanently barred from implementing the citizenship verification requirement.
But There’s a Problem: Federal Law Already Makes Non-Citizen Voting Illegal
What Judge Kollar-Kotelly’s ruling glosses over is a critical fact: 18 U.S.C. § 611 explicitly makes it a federal crime for non-citizens to vote in federal elections, punishable by fine, imprisonment up to one year, and deportation.
If there’s a federal law with criminal penalties, there must be an enforcement mechanism. Yet the current system has none.
The Enforcement Gap Congress Created
Under the National Voter Registration Act of 1993, voters simply sign a form under penalty of perjury attesting they are citizens. No verification. No documentation. Just a signature.
Here’s where it gets interesting: During the 1993 congressional debate, lawmakers actually considered allowing states to require proof of citizenship. That provision made it into the Senate version of the bill. But a conference committee deliberately stripped it out.
Republican lawmakers at the time warned about exactly what would happen. Rep. Christopher Cox (R-CA) called the NVRA “an invitation to electoral fraud” and said it “should be called the Illegal Alien Voter Registration Act.” Rep. Bob Livingston (R-LA) argued that under the NVRA, “all any individual in this country, citizen or not, minor or adult, has to do is send in a postcard saying that he is a citizen… and this bill prohibits any State from requiring any documentation to the contrary.”
Those warnings proved prescient. Congress passed a law making non-citizen voting illegal – then passed another law preventing anyone from verifying citizenship.
The Real Issue: Not a Conflict, But an Unenforceable Law
The NVRA doesn’t technically contradict 18 U.S.C. § 611. One makes non-citizen voting illegal; the other establishes registration procedures. But here’s the problem: Congress created a federal crime and then designed a system that makes it virtually impossible to detect or prevent violations of that crime.
For any criminal law to be enforceable, there must be:
- A way to prevent violations
- A way to detect violations
- A way to prosecute violations
The NVRA system provides none of these for citizenship verification. You can only prosecute someone under 18 U.S.C. § 611 AFTER they’ve voted illegally – but if there’s no way to verify citizenship at registration, how do you ever discover the crime was committed?
It’s like passing a law against bank robbery but forbidding banks from having security cameras, alarms, or locked vaults. The law exists, but enforcement is impossible.
The Constitutional Case for Presidential Action
Article II, Section 3 of the Constitution is crystal clear: the President “shall take Care that the Laws be faithfully executed.”
The question isn’t whether the President can create new laws – he can’t. The question is whether the President can direct federal agencies to create an enforcement mechanism for an existing federal criminal statute when that statute has been rendered unenforceable.
Constitutional scholars point to a three-tier system of responsibility:
First Line: The States – Article I, Section 4 assigns election regulation to state legislatures. States should be the ones verifying citizenship as part of their basic election administration duties. When states fail to act, the next line of defense must step up.
Second Line: Congress – If states fail to act, Congress has the power to “make or alter” election regulations. Congress could pass legislation requiring specific enforcement mechanisms. When Congress not only fails to act but actively prevents enforcement, the final line of defense must respond.
Third Line: The President – When states won’t act and Congress won’t act, but federal criminal law remains on the books, the President’s constitutional duty kicks in. He must ensure federal laws can actually be enforced.
“The President isn’t inventing new requirements,” one legal scholar explained. “He’s creating an enforcement mechanism for a federal criminal statute that has been rendered unenforceable. Congress made non-citizen voting a crime but provided no way to detect it. That’s not faithful execution of the law – that’s abandonment of the law. The President is fulfilling his constitutional duty.”
The Take Care Clause Demands Action
The heart of the President’s argument is simple: faithful execution of federal criminal law requires the ability to enforce it. An enforcement system that makes it impossible to detect violations isn’t execution at all – it’s deliberate non-enforcement.
The President isn’t contradicting the NVRA. He’s fulfilling his constitutional duty to make 18 U.S.C. § 611 actually enforceable. Without citizenship verification, the federal prohibition on non-citizen voting is merely symbolic – a law on paper with no practical effect.
Can Congress pass a criminal law and then tie the President’s hands so he cannot enforce it? The Constitution’s answer appears to be no. The “take Care” clause isn’t optional or conditional. It’s a mandate.
The Fraud We Can’t Measure
Opponents of citizenship verification requirements often cite studies showing minimal evidence of non-citizen voting. But here’s the catch: how would anyone know?
If there’s no verification mechanism, illegal votes are indistinguishable from legal ones. It’s like saying there’s no evidence of a crime because nobody is investigating.
State audits between 2016 and 2022 found small numbers of non-citizen voters – fewer than 50 in states like North Carolina, Georgia, and Arizona. But these were discovered only through post-election database cross-referencing, and only in states that performed such audits. How many weren’t caught? Nobody knows.
The absence of detected violations doesn’t prove the law is being followed – it proves the enforcement system is blind.
The Separation of Powers Question
Judge Kollar-Kotelly ruled that the President is violating separation of powers by intruding on congressional and state authority over elections. But that argument inverts the constitutional framework.
Congress has the power to make laws. The President has the duty to execute them. If Congress passes a criminal law, can it then prevent the executive branch from enforcing it? Can Congress effectively nullify its own criminal statute by making it impossible to detect violations?
The President’s position is that such an arrangement itself violates separation of powers by preventing the executive branch from fulfilling its core constitutional function under Article II.
The Constitution doesn’t give Congress the power to pass unenforceable criminal laws. It gives Congress the power to legislate and the President the duty to execute those laws faithfully. When a law cannot be executed because no enforcement mechanism exists, the President must act.
What the Constitution Actually Says
Article I, Section 4 gives states and Congress power over the “Times, Places and Manner of holding Elections.” But Article II gives the President the duty to “take Care that the Laws be faithfully executed.”
Judge Kollar-Kotelly focused exclusively on Article I and ignored Article II. She treated election administration as if it exists in a vacuum, separate from the President’s law enforcement duties.
But what happens when Congress passes a federal criminal law related to elections (18 U.S.C. § 611) and then makes it unenforceable? The Constitution provides an answer: the President must step in.
The Founders created a system of separated powers with checks and balances precisely to prevent one branch from neutering another’s constitutional functions. Congress cannot use its election regulation powers to eliminate the President’s duty to enforce federal criminal law.
What Happens Next
The Trump administration is expected to appeal Judge Kollar-Kotelly’s ruling. Multiple lawsuits against the executive order are pending in other federal courts.
The case will likely reach the Supreme Court, which will have to answer a fundamental constitutional question: When Congress makes something a federal crime but creates a system that prevents detection of that crime, does the President have the authority – or perhaps the duty – to establish an enforcement mechanism?
Until then, America has a federal crime on the books that, by design, cannot be effectively enforced. One federal judge says the President must accept that contradiction. The Constitution suggests otherwise.
The “take Care” clause doesn’t say the President shall execute the laws Congress makes easy to enforce. It says he shall take care that the laws – all the laws – are faithfully executed. When a federal criminal statute cannot be enforced, faithful execution demands the President act.
Judge Kollar-Kotelly got it wrong. The Constitution says so.
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