It is no secret that Donald Trump has a view of his own presidential powers that would have satisfied Genghis Khan, as evidenced by this famous statement about Article II of the U.S. Constitution enumerating executive prerogatives:
That Trump still feels that way was illustrated by his bizarre assertion this week that he can stop voting by mail, as reported by my colleague Matt Stieb:
In response to a question from a reporter from the far-right OAN network on the vast expansion of voting by mail due to the pandemic, Trump said that he is considering stopping any further efforts to make mail-in voting easier, claiming: “I have the right to do it. We haven’t gotten there yet. We’ll see what happens.”
He did not bother to articulate any rationale for this imperial authority to override election decisions exclusively assigned by the Constitution to the state and to Congress. But that’s how this president rolls.
Trump’s most recent threat to play dictator, however, may be more serious. More than likely, he’s angry at the bipartisan, bicameral lack of congressional interest in his pet coronavirus stimulus idea of a payroll tax cut. It fell out of the official White House–GOP stimulus proposal almost instantly, and has not been on the table during the painfully slow negotiations between White House representatives Steven Mnuchin and Mark Meadows and Democratic congressional leaders.
But it has occurred to Trump that if he can find an excuse for circumventing a stalemated Congress on stimulus measures, maybe he can insist on his pet idea too. He has consulted with that champion of executive power, Berkeley professor John Yoo (of “torture memo” fame), who has argued that the Supreme Court’s decision upholding Obama’s DACA declaration opens the door to all sorts of unilateral executive actions. And now his multiply discredited but still influential economic adviser Stephen Moore has co-written a Wall Street Journal op-ed laying out a convoluted game plan for deferring payroll taxes by presidential fiat and then insisting that Congress subsequently eliminate the deferred taxes altogether:
Mr. Trump should instruct the Treasury to stop withholding payroll taxes. To protect benefits, he should order Treasury to put bonds into the Social Security and Medicare trust funds …
The catch is that under any deferral, workers would still be on the hook for paying the taxes later. Or would they?
Mr. Trump could also pledge to sign a bill — now or after the new Congress takes office on Jan. 3 — to forgive those repayments. That would make the election a referendum on middle-class taxes. Mr. Trump can give Americans a tax cut now, and sign it into law later.
So a “solution” that nobody in Congress is interested in (as, among other problems, it would do nothing for the unemployed people affected by the expiration of the supplemental UI benefits enacted in the CARES Act) would be offered as an executive cure-all and then made the centerpiece of the 2020 elections.
Trump is also making noises about dealing with the expired eviction moratorium for federally assisted housing via executive action, but so far no legal theory has been offered for that idea, other than this fuzz ball from the president himself, as reported by the Washington Post:
“A lot of people are going to be evicted, but I’m going to stop it because I’ll do it myself if I have to,” Trump told reporters at an event at the White House. “I have a lot of powers with respect to executive orders, and we’re looking at that very seriously right now.”
He later said he could act to prevent people from having to go to homeless shelters, where he said they could be at higher risk of catching the coronavirus.
“They are thrown out viciously,” Trump said. “It’s not their fault.”
In all the muddled reporting of the muddled status of stimulus negotiations, it appears one of the two White House negotiators, Mark Meadows, is hinting at some executive end run if the stalemate continues, while the other, Steven Mnuchin, is expressing faith in continued talks, according to Politico:
– MEADOWS is bone tired with these negotiations, and seems to be ready for progress, or an escape hatch. HE IS GIVING THESE TALKS ANOTHER 24 HOURS, and then will try for a series of executive actions to solve some of the problems on the table — and, politically, claim unitary credit for President DONALD TRUMP.
– MNUCHIN, though, wants a deal, and is staunchly against executive actions — putting him in conflict with MEADOWS. He has cut two deals with Democrats, so he has some experience in these formats, and wants to keep talking.
Maybe they’re just doing a Mutt and Jeff (or Good Cop–Bad Cop, as this tactic is often known), trying to move the very confident Pelosi and Schumer from their position that Republicans need to make the first and largest concessions. But if Trump gets fixated on his payroll-tax toy, it’s hard to see where negotiations will ever get back on track. And they’re in bad enough shape already:
THE MAIN STUMBLING BLOCK AT THIS POINT is still state and local money. SO IS SCHOOLS … Republicans and Democrats agree on the need, but disagree on how it should be applied.
REPUBLICANS have expressed interest in talking about SNAP — a big priority for Democrats — USPS money and broadband. There is some modest agreement on housing policy — eviction moratorium and mortgage forbearance — but still many loose ends to tie up.
UNTOUCHED, for the most part: the big policies like UI and a liability shield.
To deploy one of my favorite sayings: If they had some ham, they could make a ham sandwich, if they had some bread.
The real danger is that Trump will decide he is opposed to these stimulus negotiations and would prefer to impose his own policies. If so, he’d better lawyer up for real and prepare to defend his grandiose ideas of executive power — and also to take a big hit for screwing up badly needed congressional measures.