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Trump’s latest executive actions have 3 big problems

In 2016, Trump said executive orders signaled lazy leadership. Whoops.

- August 12, 2020

Every modern president likes to use executive authority. The sheer size and scope of the federal bureaucracy gives them opportunity; legislative gridlock gives them motive. In 2011, President Barack Obama defended unilateralism by declaring, “We can’t wait for an increasingly dysfunctional Congress to do its job.” Last weekend, President Trump joined (or really, rejoined) that fray with four “coronavirus relief” directives, saying he took action because “Congress has obstructed” and is playing “political games.”

What effect will Trump’s actions have? As legal texts, the executive actions are hardly “absurdly unconstitutional,” as House Speaker Nancy Pelosi (D-Calif.) charged. But the president’s bold claims that his decrees will “save American jobs and provide relief to the American workers” are also far from the mark.

The reason rests in what is possible in (legal) unilateral action. Trump’s weekend orders are, granted, a small sample. But even so, they cover three broad categories of executive action.

We might call the first an “executive order as a news release.” The order “providing assistance to renters and homeowners” is in this vein. Although White House press secretary Kayleigh McEnany claimed Monday that the president “extended the eviction protections” contained in the 2020 Cares Act, that is not the case. More than half of the order’s text is devoted to praising the administration and attacking legislators: “Unlike the Congress, I cannot sit idly and refuse to assist vulnerable Americans in need.” The rest merely urges Cabinet departments to use existing authority to “minimize, to the greatest extent possible, residential evictions and foreclosures.”

The second category is the invocation of powers delegated in statute — in this instance, authority that Congress put behind glass, to be used in case of a national emergency. Recall that Trump declared such an emergency on March 13. For good measure, by mid-April the president had signed more than 50 disaster declarations, too, covering every American citizen.

That activated statutory provisions such as 26 U.S. Code 󠄻§7508A, enabling the treasury secretary to extend tax deadlines for anyone “affected by a federally declared disaster.” That’s how the usual April 15 income tax filing deadline moved to July 15 — and how the president’s new memorandum pushes back employees’ share of payroll tax payments into 2021. Similarly, the memorandum allowing borrowers to delay repaying their student loans rests on existing statute and emergency authority.

Yet those moves have clear limits. Both memos defer payments but can’t forgive what is owed. The loan deferral applies only to loans issued directly by the federal government. Tough luck for students with private loans, which account for more than $10 billion in debt a year at far higher interest rates. And the payroll tax “holiday” may simply result in employers continuing to withhold the tax for payment in 2021 instead of 2020. If employees do get that money, they will have to pay back taxes as soon as the deferral ends — because although the president said he would “make permanent cuts” or even “terminate” the payroll tax, he has no power to do so. The memorandum says only that the “Secretary of the Treasury shall explore avenues, including legislation, to eliminate the obligation to pay the taxes deferred.” But doing that would interrupt the key funding stream for Medicare and Social Security.

Those practical difficulties become worse in the third category of executive action, directives built on the inventive interpretation of existing law — such as Trump’s memorandum seeking to extend unemployment benefits. The idea is to give $400 a week to unemployed workers above their existing unemployment insurance, replacing the $600 provided by the Cares Act but now expired.

Congress holds the power of the purse, so the president could not just allocate new funds to achieve this. The memo thus does a workaround: It defines the new benefits as “other needs assistance” under the Stafford Act governing disaster relief. That takes advantage of the fact that the president declared the pandemic to be a “major disaster,” as well as an “emergency,” even though the law specifically defines a disaster as a “natural catastrophe.” (As one Federal Emergency Management Agency official recently told me in an interview, “A natural disaster is whatever the president says it is.”) That allows Trump to draw on funding normally used to help victims of hurricanes, floods, and the like.

That limits the funds available. It also requires states to put up a 25 percent cost-share (so, $100 of the $400) and set up a new program — something they say they can’t afford. The White House has quickly suggested waiving the state co-pay. But as political scientist Sam Rosenfeld tweeted, “What makes this executive action legal is precisely what makes it kludgy and counterproductive; fixing the kludginess will eliminate the legality.” It may not be legal anyway. Law professor David A. Super argues the plan is “transparently unlawful” given limitations on aid under the Stafford Act. If so, spending that money could violate the Antideficiency Act. At best it seems unlikely that aid will reach anyone “quickly and close to immediately,” as Trump promised.

Unfortunately for presidential rhetoric — and those in desperate need of economic relief — achieving that requires congressional action. That would add the benefit of uncontested legitimacy. “Political games” do not actually allow presidential authority to substitute for that of legislators. As Adam J. White and Yuval Levin argue, “Absence of the necessary constitutional assertiveness on the part of Congress” does not justify “an absence of the necessary constitutional self-restraint on the part of the presidents.”

Indeed, in 2016, Trump made just this argument as a presidential candidate, telling CNN that the “executive-order concept” was synonymous with lazy leadership. “You’re supposed to cajole, get people in a room, you have Republicans, Democrats, you’re supposed to get together and pass a law,” he said. Obama “doesn’t want to do that because it’s too much work,” Trump charged. “He wants to go back and play golf.”

Trump signed this weekend’s directives at his New Jersey country club, after something like his 237th round of golf as president.