There are two layers to the new executive orders issued by President Donald Trump to deal with the ongoing COVID-19 pandemic in the United States. The first layer is the constitutional legality of the orders. The second is the political fundamentals underlying them.
The orders aren’t broad overreaches of executive power; they’re not unconstitutional. But they are smart politics.
Let’s start with the legality. There were four separate executive orders issued by the White House over the weekend. Two of those orders aren’t controversial or legally questionable at all. Those two grant more relief to those with student loans and help renters by delaying evictions.
The student loan order is a continuation of a prior executive order set to expire at the end of September. Now, it merely goes to the end of the year. The laws it relies upon give the Executive Branch the legal authority to do what they’re doing here. There’s little question about that.
The second order, the granting relief to homeowners and landlords, is not only legal, but House Speaker Nancy Pelosi and Democrats were actually encouraging Trump to issue that exact executive order last week. The Wall Street Journal asked Pelosi about executive orders on Aug. 6, without really knowing what the president was planning. The Journal reported:
“I don’t think they know what they are talking about,” Mrs. Pelosi told reporters. “The one thing the president can do is to extend the moratorium and that would be a good thing, if there is money to go with it,” she said, referring to Democrats’ calls to also provide assistance to landlords to cover missed rent.
Now, Pelosi is going around calling these orders “unconstitutional slop.” Of course, the only thing that has changed is the politics, which we’ll get to in a moment.
That leaves two more executive orders, the first deferring payroll tax and the second shifting federal disaster funding toward coronavirus relief. And while progressives might say otherwise, that second order isn’t unconstitutional, either.
According to a White House memo, it instructs “the Federal Emergency Management Agency (FEMA) to assist in providing benefits from the DRF, and [calls] upon the States to use their CRF allocation, to bring continued financial relief to Americans who are suffering from unemployment due to the COVID-19 outbreak.”
Law professor Josh Blackman, writing on this provision for Reason magazine, said:
The statutory authorization here is much, much clearer than the scattered INA provisions at issue in DACA. Trump relies on a specific statute that lets the President provide financial assistance to people affected by disasters.
Finally, there’s the order deferring payroll tax, which is perhaps the most contentious. According to the White House, that order directs “the Secretary of the Treasury…to use his authority pursuant to 26 USC. 7508A to defer the withholding, deposit, and payment of the tax imposed by 26 USC. 3101(a).” It applies to “any employee the amount of whose wages or compensation…generally is less than $4,000” every two weeks.
The order suggests that tax forgiveness will apply, later on: “The Secretary of the Treasury shall explore avenues, including legislation, to eliminate the obligation to pay the taxes deferred pursuant to the implementation of this memorandum.” So while the government will not expect to have these taxes, some companies will likely still collect them to avoid a massive tax burden later on, at least until they know they won’t be on the hook for the deferred taxes later.
The statutes cited by the president in creating this order seem to suggest that he does have the authority to defer these payments for up to a year. In many respects, the payroll tax deferments work similarly to the student loan deferment framework.
That’s the law. And it’s far more friendly than the critics suggest — which brings us to the second layer to these orders: politics. Pelosi and Democrats can rail against these orders, but it’s doubtful that they’ll do anything about them.
Democrats in blue states who want no part in the orders can refuse to along with them. They aren’t get coerced. But if they do, they’ll be hurting citizens who need the aid.
Suppose national Democrats try to defeat the executive orders in court. In that case, it’ll reveal the real politics of the situation: Democrats don’t want any new aid going to Americans. Democrats want to maximize economic pain and blame it all on Trump and Republicans.
The political incentives of the moment are natural: Trump and Republicans are incentivized to seek a deal. Democrats are not. Democrats walked away from the negotiating table and now complain that Trump tries to achieve any wins.
And suppose blue-state governors say they refuse to match federal dollars in aid. In that case, they’re denying unemployment aid to their own citizens.
These are political decisions, not legal. Democrats are incentivized to prevent Trump from getting credit for any new assistance sent to American citizens.
These executive orders are Machiavellian. They call that bluff and force Democrats to either admit their true intentions or give Trump credit.
Democrats are trying to claim the orders are ineffectual and do nothing. But that’s a hard argument to land when they already support deferments, they recommended aid to homeowners, and they are the ones who decide whether to accept the federal assistance. If a blue-state governor takes Trump’s federal aid for unemployment insurance, they admit by action that the orders are helpful.
Odds are no lawsuits will come, and Democrats will try to accept this aid as quietly as possible. But Americans should force them to admit actions speak louder than words.
If you believe these orders are harmful and ineffectual as you claim, do the principled thing and sue. Otherwise, either cut a deal with Trump or admit you got outplayed this round.