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America’s “Unconstitutional Slop” Predates Trump’s Executive Actions on Pandemic Economic Relief

“The Supreme Court gave the President of the United States powers that nobody thought the President had.”
  • President Donald Trump on Fox News interview with Chris Wallace

“I’m not saying they’re not going to come back and negotiate.”

I had planned this week to explore what new executive actions president Donald Trump might implement, within legal limits, to (1) both continue streamlining the burdens of never needed regulation in response to the coronavirus and governments’ overreactions, and (2) to leave in place a cornerstone, legacy order, a role that Trump’s one-in, two-out order cannot play long term.

Then on August 8, Trump announced, amid breakdowns in negotiations with Congress, four new unilateral executive actions related to economic crisis support upon expiration of some elements of the Coronavirus Aid, Relief, and Economic Security (CARES) Act.

Trumps directives included: an executive order exploring housing assistance and “lawful measures to prevent residential evictions and foreclosures” and three memoranda: an extension of supplemental unemployment benefits using emergency funds, a payroll tax break until year-end for certain earners, and student loan relief and deferrals. Here are links to the four orders:

In a statement describing the unilateral moves, the White House said:“Democrats have purposefully failed to come to the table to pass additional relief in hopes that ruining people’s lives will win them electoral points. This is insane and dangerous.”

There is more or less to the executive actions depending upon who’s describing them. In some instances, they merely ask agencies to explore options or shuffle pots of funding around. Their legality has been questioned, particularly regarding whether or not they “wrest tax and spending powers” from Congress. This seems primarily to be the concern with respect to repurposing hurricane disaster funds for unemployment relief.

Most legacy media stories on Trump’s executive actions are predictably negative (“legally dubious”) in contrast to media reaction to unilateral Obama actions on immigration and on the Affordable Care Act. A number of outlets quoted Sen. Ben Sasse (R-NE), who called Trump's unilateral response to the pandemic “unconstitutional slop.”

The pen-and-phone theory of executive lawmaking is unconstitutional slop. President Obama did not have the power to unilaterally rewrite immigration law with 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.

House Speaker Nancy Pelosi (D-CA) associated herself with Sasse’s remarks, calling Trump’s orders “absurdly unconstitutional.” On the other hand Pelosi calls the actions an “illusion.” Hillary Clinton called them a “stunt,” while Sen. Chuck Schumer (D-NY) called them “unworkable, weak, and far too narrow.”

Regardless of whether Trump’s orders are legal or not, some still see them as harmful. The problem with all the storm over constitutionality, or perception of it, is that these orders are not emerging in a setting in which the Constitution and its regime of limited government define America any longer. They will, unlike some of Trump’s other actions deliberately taken to roll back the expansion of government, expand the federal enterprise and future expectations of it at the expense of state and individual rights. The orders certify and amplify federal powers over large swaths of life improperly exercised by Congress in the first place, and that Congress subsequently improperly delegated the executive branch. This double-lordship comes at the expense of resilience on the part of the public and localities in the face of disaster.

Even before the coronavirus pandemic, much of what occupied the progressive left was wealth transfer generally and rendering able-bodied adults dependent upon the state specifically. And in many instances, from Social Security to Obamacare to the CARES Act, Republicans eventually go along with the resultant massive spending and regulatory administrative state, detached from Congress, that such sweeping legislation generates. A constitutional republic restrains government; its transformation into an administrative state gives license to economy-wide agency programs and an inability of Congress to stop the addition of more at every emergency.

So, while I may be as annoyed as Sen. Sasse is, there is no constitutionality conversation to be had when both congressional and administrative overreach rule. President Trump is not so much “rewriting law” as exploiting the very power delegated to the agencies to which Trump appeals in his orders. The agencies shouldn’t have existed in the first place, and the power should not have been delegated to them by Congress. But more, Congress should not have created the enabling Acts, and barring that, they should have been recognized as unconstitutional. Now, breaking free via normal channels seems impossible.

There are volumes to be written on the lack of preparedness (yes, on the part of the “non-prepper” public, too) this set of conditions created, and how they induced a non-resilient United States to react with an ungovernable CARES Act and extreme lockdowns. There will need to be a “Crisis Exploitation Prevention Act” to prevent the flash policy response of massive government expansion to the next emergency or disaster that befalls.

The conditions that allowed Trump to exercise executive overreach and governance via pen and phone are longstanding and exist because Congress wants them to. The “unconstitutional slop” is not so much Trump’s deferrals, waivers, and enforcement discretion regarding of this-or-that power granted to an administrative state body, but rather the presence of those regulatory enabling “laws” in the first place. Classical liberals and policy makers of the limited government persuasion should address the deeper problem that, in order to uphold the Constitution, presidents must enforce unconstitutional slop statutes. That is, from a classical liberal standpoint, the problem of each one of the executive actions is arguably not the action itself, but the underlying law that created the agencies that the orders instruct, and that induces a meddlesome rather than liberalizing response. For example:

  • On the payroll tax deferral, the problem is the forced withholding of taxes in the first place to prevent tax revolt on the part of the public and allow easier government expansion.
  • On the prohibitions of residential evictions, the problem is the deep, entrenched interference of government in housing markets with insurance that creates leverage the federal government now flexes. Note how little of the concern from lawmakers involves landlords who also have bills and property taxes to pay. Local rent controls that create housing shortages were bad enough; now tenants need pay no rent at all.
  • On student loans, government should not have been involved in that market at all. Now Trump’s response will be seized upon by progressives who want to scrap the debt altogether.

Sloppy or perverse as it may be, Trump has made it clear that he is taking his interpretation-of-license from the Obama era Department of Homeland Security’s Supreme Court-validated unilateral action on Deferrred Action for Childhood Arrivals (DACA). Trump, who had criticized Obama’s actions, claimed on Twitter that “The DACA decision, while a highly political one, and seemingly not based on the law, gives the President of the United States far more power than EVER anticipated.” It is indeed distressing that Trump is doing what he watched others do and get away with. An entire Obama weekly address defended unilaterally “Working When Congress Won’t Act.” Specifically on the immigration action on which he ultimately prevailed post-term, Obama said:

And to those members of Congress who question my authority to make our immigration system work better or question the wisdom of me acting where Congress has failed, I have one answer: Pass a bill. I want to work with both parties to pass a more permanent legislative solution. And the day I sign that bill into law, the actions I take will no longer be necessary.

As Berkeley law professor John Yoo sees the chief justice's stance in the DACA ruling, “the Constitution makes it easy for presidents to violate the law, but reversing such violations difficult—e ]specially for their successors.” And as the professor was quoted in The Washington Post, “If you can choose not to enforce the immigration laws, here are the other things you could not enforce—such as not collecting taxes because we’re in the middle of this Great Depression.”

This is what motivates Trump. He recognized that his August 8 orders might be challenged in court. But despite the fretting by Pelosi and Schumer, one should not look for them to complain or fight much other than rhetorically, as noted above. Their reluctance will not be due to the optics of being perceived as blocking aid to the public, or as Trump put it, “trying to stop people from getting money,” since the media will provide them cover for that. 

Rather, rhetoric aside, when all is said and done, the progressive left does not see the actions taken by Trump as overreach, and does not oppose the principle of unilateral executive action. To the contrary, they have sought it for more than a century. Protests over constitutionality are disingenuous; unilateral executive action is a form of power the progressive left craves with far more fervor than Trump does. Upon agreement on COVID-19 relief, expect Democratic leaders to put these orders in the rear view mirror, apart from the issue of potentially being trapped into a payroll tax forgiveness. But progressives would likely regard that a small price to pay in the scheme of things. These power grabs are the inevitable fruits of rule by experts that leaves nowhere to turn but government agencies. Trump’s orders may be “constitutionally dangerous” (perhaps in effect than actually illegality) but they merely tinker around the edges of vast programs that embody greater constitutional peril.

Escalating agency governance is expansionism we expect from progressives, but it is the case that other Trump executive moves, such as executive orders on drug prices and on artificial intelligence, and more are also regulatory and expansive of government. The United States does not emerge unscathed from all this. The logic of the administrative state dictates the expansion of itself in response to any crisis. Executive actions play a game rigged against limited government. Classical liberalism cannot win any more than it can win in other instances in which conservatives embrace the administrative state, such as Trump’s 2020 executive order on social media content regulation or Sen. Josh Hawley’s (R-MO) plan to sprinkle federal agencies like seeds throughout the country.

Unfortunately, the unconstitutional slop is less the aberration embodied in Trump’s executive orders than the dominance of federal administrative governance. What will Trump’s regulatory legacy be? Democratic presidents might have started the “pen and phone” mode of unilateral lawmaking, but Trump has legitimized it in part. Even if Trump’s actions are legal, they affirm the administrative state rather than limited constitutional governance. A new approach of resilience and constitutionalism is needed.