—Andrea Scoseria Katz, Washington University in St. Louis, School of Law
[Editor’s note: This is one of our biweekly I-CONnect columns. For more information about our four columnists for 2020, please click here.]
It has been a big week for the power of the pen. Last week, just after imposing sanctions on Chinese media giants TikTok and WeChat, U.S. President Donald Trump signed a flurry of executive orders proposing economic relief measures to keep a flagging U.S. economy afloat despite inaction by a deeply divided Congress. Astonished observers received these actions with what has become a consistent refrain on the administration: “Can he do that?”
Although the question is important, it should be disaggregated into two separate inquiries. First, does the President have the legal authority to continue a welfare benefit program that Congress has allowed to expire? Secondly, and more practically, can the plan work?
Let’s turn to the first. Although one U.S. representative called Trump’s actions “absurdly unconstitutional,” this would not be the first time that an American president, faced with obstacles erected by the U.S. Constitution—a balky Congress, an insulated civil service, a dense network of federal and state courts—, has resorted to unilateralism in hopes of achieving desired policy goals.
Whether called executive orders, presidential directives, memorandums, or proclamations, direct presidential action is an entrenched mode of governance in America. President Trump’s 172 executive orders are unexceptional compared to recent presidents Ronald Reagan and Bill Clinton, who issued 213 and 200 executive orders in their first term, respectively.
Of course, quantity is only part of the story. Executive orders dating from recent decades differ in two important ways from older ones: political context and scope. For most of American history, important legislation was passed by broad supermajorities, but since the 1970s or so, a worsening political divide has resulted in a decline in bipartisanship, comity, and productivity in Congress, and a President seemingly more prone to unilateralism. President Obama’s well-publicized frustration with Congress’s failure to update American immigration law, and his sweeping executive orders creating programs for undocumented workers and their children (DAPA and DACA) offer a pertinent example.
Trump’s executive orders on COVID-19 relief appear to fit this mold. Last week, Congress divided sharply over whether to extend an economic relief program that provided unemployed workers—around 30 million people, say recent estimates—with a weekly benefit of $600. On Saturday, Trump made his countermove with four orders that deferred interest payments for students with federal loan debt, proposed measures to prevent mass housing evictions, delayed collection of a tax ordinarily deducted from workers’ paychecks to fund retirement pensions, and—most controversially—proposed to use disaster relief funds to revive the expiring unemployed benefit program.
Constitutionally speaking, Trump’s attempt to revive the benefit program resembles, in all but the dollar totals, his 2019 decision to divert $3.6 billion in military funds to build an unpopular wall at the Mexican border. In June 2020, an appeals court held that attempt fatally flawed because the president “lacked independent constitutional authority to authorize the transfer of funds,” a precedent that should apply to Saturday’s order (and which would not, in any case, be overturned on appeal until after the November presidential election). In the present case, Trump found authority for the relief order in a 1988 act on natural disasters and procured funds for it by emptying $44 billion from a pot of money allocated for disaster relief. Trump’s relief program would seem to fall afoul of the constitutional principle that it is the legislature that holds “power of the purse” (although who would have standing to challenge the order is another thorny question). When queried at his Saturday press conference on the legality of the measures, Trump replied, “Everybody wants it,” relying on a tried-and-true formula: plebiscitarism.
In the end–and surely there is some lesson to be drawn here about the actual workings of American constitutional law—it will probably be on practical, not constitutional grounds that the measure fails. Trump’s relief package seemed to require that 25% of the cost of the relief program be borne by the 50 states—whom, it appears, were given no notice of the fact. Already state unemployment benefits funds have been exhausted by the tens of millions of Americans who have filed for jobless benefits; so far, ten states have borrowed nearly $20 billion from the Treasury department and requested another $500 billion to meet the crushing shortfall. Asked about the President’s executive action, one state official curtly replied, “We don’t have that money.” Even if, as some suggest, the program can be read so as to relieve the states of the burden of matching funds, experts also predict the Trump slush fund to last about five weeks before running out, yet it could take weeks for the funds to arrive because the states will have to set up an entirely new system to deliver the aid. As a result, experts doubt the program will be of much help for the unemployed.
Trump’s executive orders are of interest for one more reason: until now, the administration has shown extremely little interest in a coordinated Covid-19 response that would reduce the mortality of the population. In fact, commentators on the U.S. and the Brazilian responses to the pandemic classify the two as “Darwinian federalism,” because the seeming role of the federal government in each has been, not to coordinate a response, but to actively pit subunits against each other. As a political matter, this assessment is supported by other recent executive actions taken by Trump: a June order vowing to use federal enforcement power to protect statues toppled by Black Lives Matter protestors and another targeting social media platforms with the threat of lawsuits. Both are symbolically significant, but ultimately toothless. (The first restates a power already within the government’s authority; the second is likely unenforceable without new legislation.) Their hasty confection, sharp partisan messaging, and practical defects bolster one clear conclusion: attaining measurable results is, at this stage, of less interest to the President than pure political theater. To assure American workers, as consumer demand collapses and productivity stagnates, that “this gives them a great incentive to go back to work,” shows that, when it comes to an alarming global pandemic, the President’s preferred course of treatment is to sustain the American people on a diet of bread and circuses.
Suggested citation: Andrea Scoseria Katz, Going It Alone: The Constitutionality, Feasibility, and Ulterior Motivation of Donald Trump’s COVID-19 Relief Orders, Int’l J. Const. L. Blog, Aug. 12, 2020, at: http://www.iconnectblog.com/2020/08/going-it-alone-the-constitutionality-feasbility-and-ulterior-motivation-of-donald-trumps-covid-19-relief-orders/
 Phillip Cooper, By Order of the President: The Use and Abuse of Executive Direct Action (2nd ed.) (Lawrence, KS: University of Kansas Press, 2014).
 Gerhard Peters and John T. Woolley, “Executive Orders,” The American Presidency Project. Ed. John T. Woolley and Gerhard Peters. Santa Barbara, CA. 1999-2020. Accessed at: https://www.presidency.ucsb.edu/statistics/data/executive-orders.
 Edward G. Carmines & Matthew Fowler, “The Temptation of Executive Authority: How Increased Polarization and the Decline in Legislative Capacity Have Contributed to the Expansion of Presidential Power,”24 Ind. J. Glob. Leg. Stud. 369 (Summer 2017).
 Adam B. Cox & Cristina M. Rodríguez, “The President and Administrative Law, Redux,”125 Yale L.J. 104, 136-42 (2015).
 Fernando Luiz Abrucio et al, “Combating COVID-19 under Bolsonaro’s federalism: a case of intergovernmental incoordination,” 54 Brazilian J. of Pub. Admin. 663 (Aug. 2020); Joshua Geltzer, “Trump’s ‘corona-federalism’ pits states against each other. It’s a disaster,” The Washington Post (April 8, 2020).