After Congress failed to pass its second coronavirus relief package, President Trump signed three memorandums and one executive order this weekend to extend unemployment benefits and student loan relief, protect U.S. residents from evictions, and defer payroll tax payments.
The intentions behind these orders might be good. Millions of U.S. citizens are still suffering financially because of the coronavirus pandemic, and Congress has a responsibility to provide aid given the federal government’s decision to shut down the economy. But the better question is, do these executive orders pass legal muster? At first glance, the answer is no.
His memorandum delaying the collection of payroll taxes, for example, is legally dubious, as my colleague Quin Hillyer wrote last week. Trump has argued that the presidency’s emergency powers allow him to push back the payroll tax deadline because the pandemic is a federal disaster. And it was at first. But now the public are returning to work; employers are beginning the rehiring process, albeit slowly; and there is nothing physically preventing them from filing taxes with the IRS as they normally would.
Furthermore, there is no justification for disregarding Congress’s role when both the House and Senate continue to meet regularly. The Constitution very clearly gives the tax powers to Congress, and that includes the power to create and regulate payroll taxes. Congress may have failed to fulfill its obligation in this regard, but that does not give Trump the right to step in and act on the legislature’s behalf. Our constitutional system assigns each branch of government-specific responsibilities for a reason, and when one steps into the jurisdiction of the other, we should all be concerned.
The same can be said of Trump’s presidential memorandum extending unemployment benefits. Once again, Trump argued that he was filling the gap left by Congress’s negligence and reappropriating leftover funds from the CARES Act to states that need them. It’s unclear how this will work exactly or whether states will need to share some of this financial burden, but the biggest problem with this memorandum is that it allows the White House to bypass Congress and take over as chief of federal spending. The president, however, does not hold the purse strings, according to the Constitution; Congress does. And to deliberately ignore this principle is to ignore the constitutional system that created it.
Conservatives rightly decried former President Barack Obama’s “pen and phone” governance. His attempts to rewrite the law via executive order were wrong then, and Trump’s attempts to do the same are wrong now. Because no matter who the president is, executive rule bodes ill for the constitutional system to which conservatism adheres. Once the barriers that keep our government in check are removed, anything and everything could be deemed permissible.
Congress, of course, shares some of the blame. Our legislators seem much more interested in partisan politicking than substantive lawmaking, and they have handed off much of their authority to unelected bureaucrats and the branch of government that controls them: the executive. But just as Congress must step up and do its job, Trump must step back and do his. Nowhere in its job description does the Constitution give the president the unilateral right to legislate.
