Trump has a habit of seeking to bypass the US Constitution – here's why his latest executive order circus matters

The president may find that his latest stunt backfires, particularly if he annoys his own party

Andrew Feinberg
Tuesday 11 August 2020 19:36 BST
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Stop me if you’ve heard this one before.

Following weeks of negotiations with the Democratic-led House of Representatives on a large and urgently-needed coronavirus-led spending bill which failed to produce an outcome to his liking, Donald Trump makes a show of signing a legally dubious executive action that – in his rendering of events – will allow him to get what he wants without regard for the pesky constitutional strictures that have bound every American president since George Washington.

That was the sequence of events which took place at the White House on 15 February 2019, three weeks after roughly 800,000 federal workers ended 35 days of not receiving a paycheck during what is still the longest partial government shutdown in US history.

After House Democrats (and some house and Senate Republicans) declined to include funding for construction of a wall along the US-Mexico border in legislation to keep the government open through the end of the 2019 fiscal year, Trump declared that a national emergency existed along the US-Mexico border. He proposed that approximately $8bn (£6.1bn) in funds meant for other parts of the government could be used for the wall, which was one of his signature campaign promises in 2016 and remains a staple of his campaign rhetoric.

Such a directive to move money appropriated for one purpose to fund a programme which Congress explicitly declined to fund is, strictly speaking, prohibited by the US Constitution’s express declaration that “No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law”. However, the question of whether he’s violated the constitution has yet to be resolved by the courts 542 days later.

It’s a scene that has become more and more familiar to Americans since the Democrats took back control of the house in 2019 as the 45th president of the United States has chafed at the realities of dealing with a legislative chamber that is under the control of people he can’t intimidate by tweet, and an independent judiciary that doesn’t always come down on his side.

Eighteen months after he kept 800,000 federal workers on a 35-day furlough in service of a cause dear to his political base – and three months after the House approved the Heroes Act to extend some relief programmes – more than 20 times as many Americans are out of work due to the economic upheaval brought about by the worst Covid-19 pandemic of any industrialised nation. Economic aid measures enacted at the outset of the global pandemic have lapsed, and rather than negotiate with Congress, Trump is once again taking legally questionable executive actions rather than accept that Congress’ priorities might infringe on his political aims.

This time around, the cause near and dear to the president’s political heart is the denial of aid to state and local governments headed by elected Democrats, as well preventing any provision to appropriate funds to help the US Postal Service and state governments handle what is projected to be a massive spike in absentee balloting by voters eager to avoid Covid-spreading crowds on election day in the next round of relief legislation.

And of course, some of Trump’s top economic advisers (who, like him, are quite wealthy and insulated from the financial realities of Covid-era American life) want to cut the expanded unemployment benefits they claim (without offering evidence) are disincentivising Americans from returning to jobs (which in many cases no longer exist).

And just as it was when Senate majority leader Mitch McConnell announced that he would not bring any appropriations legislation without funding for a border wall up for a vote in December 2018, the Republican-led Senate – following Trump’s lead – has drawn a line in the sand between Americans and their financial security by making clear that it will not consider existing coronavirus relief legislation passed by the Democratic-led house without the president’s prior approval.

Instead, Trump announced over the weekend that he would sign four executive actions purporting to essentially continue in some form the now-expired eviction moratorium and unemployment compensation programmes, as well as defer collection of the payroll taxes that fund Social Security and Medicare. Another extends suspension of interest accrual and payments for federally backed student loans.

But aside from the memorandum directing the secretary of education, Betsy DeVos, to suspend collection of student loan interest and payments, none of the other documents Trump signed on Saturday do anything close to what he promised, and White House press secretary Kayleigh McEnany struggled to explain the authority underpinning some of the actions when she briefed reporters on Monday.

Asked how the Department of Housing and Urban Development could legally extend the now-expired moratorium on evictions in HUD-backed buildings, McEnany replied: “The authority would be suggesting that HHS and HUD consider whatever legal authorities they have to protect Americans. And also, the president merely instructed in that EO that we should do everything within the lawful capacity of the executive branch to protect Americans from evictions”.

Hillary Clinton calls Trump's use of executive orders 'a stunt'

At no point did she even come close to explaining how the memorandum in question amounted to an extension of the Cares Act eviction moratorium.

According to Harvard Law School emeritus professor Laurence Tribe, the reason McEnany couldn’t offer an explanation is because there is no explanation to offer.

“It’s nothing. It’s just a study,” he said of the housing-related memorandum’s contents.

“They [Trump’s latest executive actions] are really clever in the sense that anyone who actually believes they’ll get anything out of this, will say they’re lovely, and people will not be happy about anyone who sues to challenge any of it,” he continued. “But none of it can come true”.

“There are plenty of studies, and there is no payroll tax cut. It’s just a tax deferral, so it’s smoke and mirrors and a shell game”.

Tribe, perhaps the nation’s foremost expert on constitutional law, said the only thing Trump signed on Saturday that “maybe had some validity” is the order directing the secretary of education to put off collection of student loan payments and interest, because Congress has granted that power to the Department of Education.

And the purported extension of unemployment benefits? McEnany punted when asked when Americans could expect to receive any funds Trump purportedly transferred from the hurricane relief fund run by the Federal Emergency Management Agency (Fema) to a separate programme which unemployed workers will have to apply for separately.

After claiming that the programme would begin dispersing funds “quickly and close to immediately”, McEnany then claimed responsibility for any delays would rest with house speaker Nancy Pelosi and Senate Democratic leader Chuck Schumer, even though the programme at issue would be an entirely executive branch-run venture.

Another constitutional law expert, Republican senator Ben Sasse of Nebraska, weighed in on the measures’ lack of validity with an added slap at Trump’s predecessor for good measure.

“The pen-and-phone theory of executive lawmaking is unconstitutional slop,” Sasse said. “President Obama did not have the power to unilaterally rewrite immigration law with Deferred Action for Childhood Arrivals (Daca), and President Trump does not have the power to unilaterally rewrite the payroll tax law. Under the Constitution, that power belongs to the American people acting through their members of Congress.”

While Tribe agreed with Sasse’s description of Trump’s most recent orders as “unconstitutional slop”, he said there is a clear difference between them and the Obama-era Daca programme because the latter was a clear exercise of the executive’s prosecutorial discretion.

But although Trump’s Saturday circus was meant to show him being decisive and position him as someone who is trying to help Americans facing financial ruin, Tribe posited that the whole thing could backfire.

“He ventures into a kind of a danger zone when he does anything in the form of promises that people can immediately see he is not going to keep. It’s one thing to say, somewhere down on the border, that he’s going to build more wall. Most people … can’t see El Paso from their house,” he said. “But most people know whether they’re getting a $400 check or not”.

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