the law

Trump’s COVID-19 Executive Actions Are Likely Legal, But That’s a Small Relief

President Trump signs executive orders on coronavirus economic relief during a news conference in Bedminster, New Jersey, on August 8. Photo: Jim Watson/AFP via Getty Images

Issuing presidential executive orders is not itself problematic. It is the content of the orders that matters. And in the case of President Donald Trump, that content is often more about scoring political points than about taking care that the laws be faithfully executed. Trump’s latest executive orders are a political stunt that poses a serious threat to Social Security and Medicare, programs that Americans count on to provide a financial safety net.

On Saturday, Trump announced a package of relief measures in response to the COVID-19 pandemic — three executive memorandums and an executive order. The edicts purport to extend unemployment benefits, delay payroll taxes, suspend evictions, and defer repayment of student loans. Executive orders have some technical differences from memorandums in that they must cite the statutory or constitutional authority that support them, but both have the force of law.

In signing the executive memorandums and order, Trump circumvented Congress, which was deadlocked in negotiations on legislation to provide relief to Americans hurt by the pandemic. Rather than demonstrating the art of the deal, Trump simply decreed by fiat how to resolve the impasse. Trump’s orders fall short of addressing many of the concerns that Congress is debating, such as aid to small businesses, assistance to schools, and stimulus checks to individuals. While many Americans will welcome any relief at all, these orders do more harm than good.

Trump’s measures were met with some outcry that they were an unconstitutional usurpation of Congress’s powers to make laws, collect taxes, and spend money. But Congress by statute delegates a great deal of authority to the president to work out the details about how certain laws should be executed, and presidents of both parties have used executive orders to do so. President Barack Obama used an executive memorandum to create the Deferred Action for Childhood Arrivals program, which directed federal agencies to exercise their discretion to refrain from deporting certain undocumented immigrants. Governors have used executive orders throughout the pandemic to order shutdowns across their states, mostly prevailing against legal challenges.

And checking the president’s possible overreach would require a lawsuit. Members of Congress may not want to be perceived as blocking relief for Americans, no matter how paltry that relief really is.

Trump’s package of executive action cites statutory delegations to support his actions, giving it some plausible legal authority. The memorandum on unemployment benefits, for example, does not authorize expenditure of any new dollars, which would require an act of Congress. Instead, it simply redirects funds already allocated by Congress and not yet spent — $80 billion that still remains from the CARES Act enacted by Congress for COVID relief and another $44 billion intended for disaster relief. It is unclear whether the president has the authority to repurpose the funds in this way. The unemployment memo also calls on states to pay 25 percent of these benefits. This memorandum creates the appearance that Trump is providing relief to Americans who are hurting economically, when it really just moves money around and gambles on a mild hurricane season. In fact, the memorandum actually reduces the $600 weekly unemployment payments to $400.

The other three measures do not appear to infringe upon Congress’s enumerated powers because they simply delay payment of taxes and repayments of loans and direct agency heads to “consider” whether “any measures temporarily halting residential evictions of any tenants for failure to pay rent are reasonably necessary to prevent further spread of COVID-19 …” To simply “consider” action does not require any actual action at all.

But even if we do get away with spending all our future FEMA disaster-relief money on COVID, these measures are not just a harmless political stunt. The memorandum deferring payroll tax through the end of the year threatens real harm to Social Security and Medicare, which are funded in part by employers who withhold money from employees’ paychecks. Both parties in Congress have rejected deferring payroll taxes. Trump further said that if he is reelected, he would terminate the taxes that are owed. If so, then the Social Security and Medicare programs would be permanently deprived of those funds.

Even more concerning than the monetary loss is the idea that the president could simply wave away payments into the Social Security program. The Social Security trust fund is what former vice-president Al Gore famously and repeatedly referred to during a presidential debate as a “lockbox.” Social Security funds are kept in an independent trust fund so that they cannot be spent as part of the government’s general fund, and they can be counted on when beneficiaries are ready to claim them. By terminating payment of payroll taxes, Trump would be depleting the funds and undermining the trust-fund concept.

Some commentators have speculated that employers will withhold payroll taxes anyway, because they have to pay them eventually and won’t want to withhold larger amounts from employees later. Maybe so, in which case Trump’s memorandum will be nothing more than empty words.

Deferring payroll taxes is the provision that is most likely to attract a legal challenge. We have seen in the past that Trump’s executive orders sometimes seem to be slapped together to satisfy his impulses rather than carefully studied to satisfy legal concerns. It took Trump three tries at an executive order to create his Muslim travel ban. The first version banned lawful permanent residents, or green-card holders, a clearly unconstitutional provision that violated due process and created chaos at American airports. The White House removed that provision within days of issuing it in January 2017.

This group of executive orders seems like another example of White House lawyers scrambling to fulfill Trump’s impulses. They would do well to consider not just whether they can issue the orders, but whether they should.

Trump’s COVID Orders Are Likely Legal But Short on Relief