USPS ‘cost-cutting’ changes are arbitrary and capricious

The traditional mission of the U.S. Postal Service is to bind the nation together by providing a "reliable affordable, universal mail service." This mission of providing "reliable affordable" service has been the goal since Benjamin Franklin was appointed postmaster general in 1775. Achieving this vital service is now in doubt due to the "cost-cutting" actions of Postmaster General Louis DeJoy.

DeJoy, a Trump ally and donor, was appointed by the USPS board of governors less than six months ago. In this short time, he has created a derecho of complaints about his cost-cutting actions that have slowed down mail delivery. The USPS is now unable to provide timely service.

Thomas Marshall, general counsel of the Postal Service, has singled out a specific concern. He has sent a letter to the states warning that a "significant risk" exists that all ballots cast by mail for the November election may not arrive in time to be counted. "Certain deadlines for requesting and casting mail-in ballots are incongruous with the Postal Service's delivery standards."

Under DeJoy's direction the Postal Service has pulled collection mailboxes out of service and decommissioned many high-speed sorting machines. These and other cost-cutting measures have contributed to increased delivery delays at a time when more voters want to vote by mail to protect themselves from the COVID-19 pandemic. The claim the removal of the machines is an efficiency-based move is unconvincing.

DeJoy's cost-cutting actions are arbitrary and capricious. The law requires the postmaster general to consult with the Postal Regulatory Commission whenever a change affects postal services "on a nationwide or substantially nationwide basis." The commission is required to give the public the opportunity to comment on the proposal at a hearing. 39 U.S.C. Section 3661(b) and (c). DeJoy has failed to follow this process. But his actions are troubling for another reason. They complement and are consistent with Trump's partisan political narrative that universal mail-in voting will cost him the "rigged" election. "MAIL-IN VOTING WILL ... LEAD TO THE END OF OUR GREAT REPUBLICAN PARTY." This narrative undermines the democratic fabric of the nation.

On Aug. 21, DeJoy appeared before the Senate Homeland Security and Governmental Affairs Committee, and on Monday, he appeared before the House Oversight Committee. The House Committee explained: "Your testimony is particularly urgent given the troubling influx of reports of widespread delays at post facilities across the country -- as well as President Trump's explicit admission last week that he has been blocking critical coronavirus funding for the Postal Service in order to impair mail-in voting efforts for the upcoming election."

For now, DeJoy has agreed to suspend his cost-cutting measures, but a suspension is not good enough. The alleged cost-cutting measures must be rolled back to January. If his explanations are unconvincing, which seems likely, the nine governors to the 11-member Postal Service board of governors should order his removal. The governors have the statutory authority to remove and replace him. 39 U.S.C. Section 202 (c) and (d).

This solution is more expedient than battling it out in the courts, which is now underway. States have filed a federal lawsuit in the Eastern District of Washington against Trump and DeJoy seeking a declaratory judgment, writ of mandate, and injunctive relief, 1-20-cv-03127. The problem with litigation is judicial delay and subsequent appeals. Immediate action to force the roll back in service is essential. 