Why President Trump's Executive Orders on Coronavirus Relief Are NOT Unconstitutional

August 9, 2020 11:28pm

The $600 per week of federal unemployment benefits provided by the CARES Act expired last month. Republicans in Congress had offered to extend unemployment benefits and fund other Coronavirus relief programs. Democrats wanted more funding, of course (the House proposed a $3.4 trillion bill). And Democrats also demanded inclusion of a plethora of policies that have nothing to do with the pandemic. But no compromise agreement was reached because Nancy Pelosi made the political calculation that Democrats would benefit in the elections if Republicans were blamed for there being no deal, which of course, the so-called "news" media did assign blame to Republicans.

Yesterday, after Congress failed to reach an agreement, President Trump signed four executive orders regarding Coronavirus economic relief efforts. The Democrats and the media - but I repeat myself - denounced those actions as unconstitutional and omitted critical facts from their stories. They decried the orders as unconstitutional because the President cannot spend money without congressional authorization to do so. Until this evening, I had not read Trump's orders, so all I knew was what was reported by the so-called "news" media. Consequently, I believed his orders were unconstitutional.

But I finally had time to read all four executive orders this evening, and guess what? The media was lying! No surprise there. The media usually lies about Trump. The President's orders are very narrowly tailored and DO NOT spend any money that wasn't previously authorized by law. Consequently, I see no constitutional violations with any of his four orders. I've linked to the orders below, so you can read them yourself and see the truth without it being filtered by activists posing as journalists in the dishonest, agenda-driven, propaganda press.

Trump's four executive orders:

1) Trump's "Memorandum on Authorizing the Other Needs Assistance Program for Major Disaster Declarations Related to Coronavirus Disease 2019" provided $400 per week in federal unemployment benefits (down from the legislated $600 per week that expired last month). The President knows he lacks the power to appropriate funds from the public treasury. So to pay for these benefits, he said he would tap federal funds that have already been allocated for natural disaster relief. If the pandemic can be classified as a "natural disaster," then this action is lawful.

It should be noted that Trump's "generosity" of $400 per week would only happen in states that agree to pay an additional $100 per week (meaning the federal government would only pay $300 in states that pony up the $100 per week, which I suspect few states will do). Republican states are unlikely to fund it because they oppose increasing welfare, and blue states - which would normally be eager to increase welfare - won't do it because they don't want the recipients to give Trump credit for the free cash. But Trump's order specifically addresses the source of both federal and state dollars! That source is unspent money from previous congressional appropriations for which the executive branch does have rule making authority. This order is constitutional, but I expect resistance from states anyway.

2) Trump's "Memorandum on Deferring Payroll Tax Obligations in Light of the Ongoing COVID-19 Disaster" directed the Secretary of the Treasury to delay withholding of Social Security and Medicare taxes through December 31st for employees making less than $104,000 per year. This order did not cancel any taxes; it only deferred payment of those taxes until January. But can the President legally do that? Yes.

Current law (26 U.S. Code § 7508A) specifically allows the executive branch to "specify a period of up to 1 year that may be disregarded in determining, under the internal revenue laws, in respect of any tax liability of such taxpayer" in the event of a "federally declared disaster." President Trump declared the pandemic to be a nationwide disaster back on March 13th, so he is on solid legal grounds with this order.

3) Trump's "Memorandum on Continued Student Loan Payment Relief During the COVID-19 Pandemic" extended the administration's student loan payment deferral policy. This action appears to be within the scope of presidential authority because federal law explicitly authorizes payment deferrals if "the borrower has experienced or will experience an economic hardship" (20 U.S. Code § 1087e(f)(2)(D)). So this order also passes constitutional scrutiny.

4) Trump's "Executive Order on Fighting the Spread of COVID-19 by Providing Assistance to Renters and Homeowners" simply directs the Secretary of Housing and Urban Development "to promote the ability of renters and homeowners to avoid eviction or foreclosure resulting from financial hardships caused by COVID-19." Those are nice words, but they have no substance. This order did not extend the CARES Act's eviction and foreclosure moratorium at properties with federally-backed mortgages, which expired last month. Instead, it directed federal agencies to consider what they can do to temporarily halt evictions. This order is so weak that it doesn't rise to the point of being unconstitutional. But that also means it doesn't rise to the point of being useful either. This one is pure political theater.

Both the Republican-controlled Senate and the Democrat-controlled House deserve criticism for their failure to reach some sort of an agreement. Both sides are playing politics at the expense of the American people. Our country cannot afford the trillions of dollars we've already spent - or the trillions more Congress will eventually spend - in a futile effort to save our economy from the self-inflicted Coronavirus Depression.

We should never have shut down the economy as we did. Government cannot fund restitution for the financial losses of businesses and individuals - only free commerce can do that. So government needs to get out of the way and allow it to occur. I fear, however, that irreversible damage to our economy and our nation has already been done.

But contrary to the claims of the Trump-haters, yesterday’s executive orders were NOT unconstitutional.