Trump鈥檚 executive actions: Legal? Helpful? Three questions.
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Flourishing a pen, President Donald Trump attempted an end run around stalled congressional negotiations Saturday, signing a series of executive actions he said would 鈥減retty much鈥 take care of the nation鈥檚 coronavirus relief needs.
Days later, U.S. states and companies are struggling to figure out how 鈥 or whether 鈥 to implement the president鈥檚 directives.
As with many of Mr. Trump鈥檚 unilateral domestic moves, a close reading of the documents shows that the details don鈥檛 quite match the sweeping claims. The executive actions he approved appear to be, at best, less than meets the eye 鈥 and, at worst, unworkable. Some may also be illegal.
Why We Wrote This
The pandemic relief order and memos President Trump signed over the weekend may be narrow enough to avoid constitutional issues. But states and businesses worry they will simply create administrative burdens.
The unemployment memorandum, for instance, requires that hard-pressed states kick in 25% of the extended $400 weekly per-person benefit. Some Democratic governors were scathing about the chance of that happening.
鈥淭he concept of saying to states that you pay 25% of the unemployment insurance is just laughable,鈥 said New York Gov. Andrew Cuomo. 鈥淭he executive orders will not be a substitute for legislation.鈥
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It鈥檚 possible the document signings were as much a negotiating tactic as an end in themselves. On Monday Mr. Trump and senior administration officials pressed Democrats to return to the bargaining table. On his Twitter feed, the president claimed that Senate Minority Leader Chuck Schumer and House Speaker Nancy Pelosi now 鈥渨ant to make a deal. Amazing how it all works, isn鈥檛 it.鈥
But the two Democratic leaders said they had not contacted the White House, and, as of Tuesday, no further negotiations were scheduled 鈥 though both sides said they remained open to discussions. On the bottom-line cost, the two sides remained far apart. Democrats were seeking relief worth about $2 trillion, down from an initial $3.4 trillion target. Republicans have countered with a package worth $1 trillion.
Here are three questions sparked by the president鈥檚 weekend moves:
What, exactly, did President Trump sign?聽
On Saturday at his Bedminster, New Jersey, golf club the president proclaimed that he was going to sign 鈥渂ills鈥 that would 鈥渢ake care of, pretty much, this entire situation鈥 (meaning Congress鈥 failure to agree on a relief package).
He announced he was postponing payroll taxes through the end of the year, extending extra federal unemployment benefits, helping people stay in their homes, and waiving payments on federal student loans.
The documents the president signed weren鈥檛 bills, a term generally reserved for legislation passed by Congress. He signed one executive order on housing, and three presidential memorandums, which carry less legal weight.
On housing, Mr. Trump鈥檚 order did not extend the federal ban on many evictions, which expired in late July. Instead, it called for top administration housing officials, including Health and Human Services Secretary Alex Azar, to 鈥渃onsider鈥 whether a new eviction ban is necessary.
On unemployment benefits, Mr. Trump鈥檚 memorandum extended extra federal payments. But the amount was cut to $400 a week, from the previous level of $600 鈥 and of that, states would have to supply $100. The memo鈥檚 wording holds that if a state can鈥檛 ante up that cash 鈥 and many will be hard-pressed to afford it 鈥 it won鈥檛 get the federal supplement.
On payroll taxes, Mr. Trump鈥檚 memo instructs the Treasury to stop collection of the 6.2% paycheck levy from Sept. 1 to Dec. 31. But it鈥檚 a deferment, not a tax cut 鈥 meaning that at the end of the year, taxpayers (or their employers) would have to pay the full amount for that period of time.
On federally held student loans, Mr. Trump鈥檚 memo waives all interest until the end of the year, and delays principal payments until Dec. 31. On Jan. 1, normal payment schedules are supposed to restart.聽
What happens next?聽
Court challenges may delay implementation of some or all of these moves. But the main challenge may be that聽the executive actions are so narrow and complicated, particularly for the unemployment payments and payroll tax deferments, that many states and businesses will likely struggle to figure out what exactly to do.
Take the extension of federal unemployment benefits, arguably the most important of all Mr. Trump鈥檚 actions. States are supposed to pay $100 a week per person of the cost, and administer the effort besides. If they can鈥檛 afford that, will they get nothing? The memo鈥檚 wording suggests that would be the case, but on Tuesday administration officials backed up a bit and clarified the situation. White House economic adviser states would be able to credit $100 of their existing unemployment benefits toward the 25% cost-sharing requirement. States would still have to apply for the benefit, according to Mr. Kudlow.
Plus, the unemployment memo draws on federal disaster funds as its source of money. At current levels of unemployment, the disaster money would be used up within weeks 鈥 certainly by October. Should a state go through the hassle of changing its data systems to accommodate the new payments, if it may not be able to do so before the money effectively runs out?聽Many states may not be able to implement this program, .
Likewise, the tax deferment doesn鈥檛 make the obligation go away. Will companies adjust their payroll calculations to temporarily stop collecting a tax that they鈥檒l just have to collect later, under current law? And if they do make those changes, and employee income temporarily increases, will that be subject to income tax?
Mr. Trump has said that if reelected, he will forgive the deferred payroll tax. But he doesn鈥檛 have the power to do that 鈥 presidents can鈥檛 cut taxes on their own. Plus, it鈥檚 a ton of money, another trillion dollars or so, and it鈥檚 the primary funding mechanism for Social Security and Medicare, the government鈥檚 giant (and popular) senior support programs.
Many businesses may just throw up their hands and leave payroll withholdings as they are.
Are the actions unconstitutional?聽
Republican Sen. Ben Sasse of Nebraska has slammed Mr. Trump鈥檚 signings as 鈥渦nconstitutional slop.鈥 Indeed, the Constitution explicitly assigns taxing and spending powers to Congress, and Mr. Trump is trying to take some measure of that power for his own.
But the order and memos are so narrowly drawn that they may avoid constitutional issues. They draw on existing presidential powers as outlined in statutes such as the Disaster Mitigation Act of 2000, which allow chief executives to spend federal money on relief for disaster victims, .
They鈥檙e not illegal so much as ineffective, according to Mr. Hemel.
President Barack Obama used an executive order in 2014 to order prosecutorial discretion in the case of the 鈥淒reamers,鈥 immigrants brought to America illegally as children. Republicans say that precedent is one of the things Mr. Trump is drawing on today.
The Democratic response to Mr. Trump鈥檚 measures has generally been to , not as executive branch overreach. The implication: Under a President Joe Biden, executive orders and memorandums might continue to play a role in getting around congressional inaction.聽