House Speaker Nancy Pelosi, D-Calif., lashed out at President Donald Trump over the weekend for unilaterally extending the federal unemployment supplement and providing other relief to Americans struggling because of the pandemic. She called his executive actions “absurdly unconstitutional.” No, they are not. If anything, Trump’s actions were restrained. He could have gone much further — and he still might.
Congressional Democrats thought they had Republicans cornered in the standoff over a new coronavirus relief package. They were so overconfident that they refused to temporarily extend the federal supplement at the existing $600 level while the two sides negotiated — using the suffering of working Americans as leverage. The Democrats likely figured that if Republicans refused to cave to their demands, Americans who lost their unemployment supplement would take out their anger on Trump and the GOP on Election Day.
The Democrats failed to anticipate that Trump could go around them and give the aid to struggling Americans on his own. Now the political tables are turned. Because Trump acted unilaterally, Democrats get no credit for extending the relief. Their refusal to compromise means they got none of their priorities approved. They handed Trump a big political win, allowing him to take decisive action to break the political gridlock. Their only recourse now is to sue Trump to stop him from providing the American people with tax relief, student-loan deferments and enhanced unemployment benefits.
Suing to block the rescue would be politically suicidal, but if Democrats were dumb enough to do it, they would lose — because Trump’s actions are unquestionably lawful. Every action he took was authorized by Congress. To suspend payroll taxes, Trump used tax-deferral authority Congress granted him in the CARES Act, which he had already used to shift the tax date from April 15 to July 15. To suspend student loan payments and interest, Trump used authority Congress granted under the Higher Education Act of 1965 and the Omnibus Budget and Reconciliation Act of 1993 (authority that Joe Biden, as a Democratic senator from Delaware, voted to give the president). To extend the federal unemployment supplement, Trump used authorities Congress gave under the National Emergencies Act and the Disaster Mitigation Act of 2000 to provide financial aid to disaster victims.
In none of these cases did Trump rely on any presumed constitutional powers. But he could have gone much further by relying on the powers the Supreme Court recently granted him in Department of Homeland Security v. Regents of the University of California. In that case, the high court blocked his efforts to end President Barack Obama’s Deferred Action on Childhood Arrivals, or DACA, program, which halted the deportation of people brought to the United States as children. Obama claimed that he had the discretion to not enforce the nation’s immigration laws against an entire class of undocumented immigrants — creating an extralegal visa program by executive fiat. The Supreme Court ordered Trump to continue enforcing Obama’s executive action.
As John Yoo — former head of the Justice Department’s office of legal counsel — explains, “What’s good for one president is good for the other president.” If Obama had the discretion to not enforce immigration laws, Trump has the same discretion to not enforce tax laws. Indeed, under the Regents precedent, Trump has virtually unlimited power to stop enforcing any part of the tax code or any economic regulations he dislikes — and it could take years for his successor to undo any changes he makes.
Trump might do just that. On Monday, the president said he is “looking very seriously at a capital-gains tax cut and also at an income-tax cut for middle-income families.” He could do this using the same presumed authority Obama used for DACA, by directing the Internal Revenue Service not to go after those who fail to pay these taxes. Indeed, Yoo tells me Trump is on much stronger ground to do so than Obama was with DACA, because when Obama acted there was no Supreme Court decision. Now, thanks to Regents, Trump can, in effect, rewrite the tax code or the code of federal regulations under the guise of “deferred action.”
Trump’s critics on the right say this would set a dangerous precedent, which a Biden administration could abuse to enact “emergency” measures to combat climate change. But Trump would not be setting a precedent; he would be using the precedent Obama set and the Supreme Court upheld. And if Biden wins, he won’t be bound by Trump’s restraint. He probably won’t even need to take executive action — because Democrats will get rid of the legislative filibuster and ram his agenda through Congress.
Trump’s unilateral action was politically brilliant. If Democrats don’t compromise, he might just be getting started.
2020, Washington Post