Over the weekend, President Trump enacted four executive orders designed to make up for what Congress wouldn’t do.
Note right off the bat that this is not what executive orders are for. They are supposed to govern how executive branch officials enforce the laws that Congress passes. They are not supposed to make up for what Congress doesn’t do.
Trump’s orders essentially fill in where Congress failed to pass another round of coronavirus relief. With a stroke of the pen, Trump has paused the collection of federal payroll taxes, extended bonus unemployment benefits ($400 extra instead of $600), extended a soft moratorium on some evictions, and paused student loan repayments.
Democrats and liberal journalists, young-Earth creationists who believe the universe began in January 2017, have remarked that if former President Barack Obama had done such a thing, conservatives would have howled.
This is a silly objection. Not only did Obama, in fact, do such things, and on many occasions, but conservatives are even now criticizing Trump, much like they criticized Obama for his unilateralism. And they are right to do so.
Yes, there are stated justifications for Trump’s orders. In some cases, they are marginally stronger than what Obama had to justify his executive actions.
For example, with respect to the pause in payroll tax collections, there do exist emergency powers in the law that technically make a pause in collections possible in times of declared disasters. But that doesn’t mean Trump is acting rightly. This action stretches those emergency powers, intended for times when tax collection is physically impossible, beyond anything they were intended for.
And for some of the other orders, the rationale is a lot thinner than that.
For that reason, we feel the same way we did when Obama arrogantly reacted to his party’s loss of Congress by deciding that Congress just didn’t matter anymore. In the run-up to the 2012 election, his mantra became “We can’t wait,” meaning that if Congress was not going to enact his agenda, fix the bugs in his unpopular healthcare bill, expand his stimulus, confirm his appointees, wage or fund new wars, or make any number of other transformative changes, he would use his “pen and phone” to do it all by himself, even if it was illegal for him to do so, and even if it ultimately led to a humiliating, unanimous Supreme Court defeat, as happened to Obama on multiple occasions.
No matter who is doing it, the executive action is no way to govern a republic with 330 million citizens. People need to rely upon the certainty of the law. That reliability and certainty is what makes prosperity possible in the long run.
To be sure, most people will not complain about these particular actions. Most people will benefit from not having payroll taxes collected from their checks. And the Democrats’ partisan response, that this somehow endangers Social Security, is risible on its face, leaving aside the fact that they were not concerned when President Obama did the same thing as part of his stimulus package.
But even what the workers receive now will be but a fleeting benefit. It’s still possible that Uncle Sam (or Uncle Joe Biden) will come back next year demanding the balance of uncollected taxes from everyone, or from everyone above a certain income level. How are people supposed to plan for that? There’s no way to know.
Trump’s action is not occurring in a vacuum. Yes, Democrats in the House and Senate failed to negotiate in good faith. Where the administration showed a willingness to give ground in order to get a deal, Democrats did not. So, there’s something understandable about Trump going his own way.
But two wrongs don’t make a right. And there are two very big problems with what Trump is doing in circumventing Congress. The first is that the Constitution established Congress and the presidency as coequal branches. If Congress is held by the opposition, it is because voters want it to oppose the president. This is a feature of the system, not a bug.
Second, the tendency toward unilateralism is a self-fulfilling prophecy that has been bringing the nation gradually closer to dictatorship for many decades now. The repeated decision by presidents of both parties to act unilaterally is obviating the need for the two sides to work together on almost anything. In other words, part of the reason everyone has become so uncompromising is that there is no need to compromise if someone is just going to take matters into his own hands anyway.
Again, Trump’s actions will probably be popular with ordinary working and unemployed people. They will probably be popular with tenants and with graduates holding massive loans. That doesn’t make them right, and it doesn’t mean they don’t comprise a harmful, precedent-setting abuse of presidential power.
