Back in March, when the Trump administration ramped up its response to the COVID-19 pandemic, I argued that the politics of disaster relief was overwhelming the legal restraints on it. The foundational issue was whether the pandemic qualifies as a “major disaster” — not in some subjective, colloquial understanding of that term, but as the term major disaster is defined in federal law. It simply does not.
No one in government would engage on this question. To stake out the correct legal position would be to invite the slander of heartlessness. In point of fact, though, it would merely be saying something once understood as basic: The federal government has the power to grant all kinds of relief to address crisis conditions — including a pandemic and the financial damage it is doing to Americans whose livelihoods have been shut down by compulsory government action. But in our constitutional system, based on separation of powers, it is for Congress to legislate such relief, not for the president to decree it.
A president has the power to dictate terms and confer benefits only insofar as Congress has granted it by statute. Congress has not statutorily empowered presidents to pay unemployment compensation to people who have lost wages due to COVID-19 job losses. Consequently, President Trump’s unilateral executive action, directing the Department of Homeland Security to divert disaster-relief funding to pay $300 per week in lost-wages compensation (i.e., 75 percent federal underwriting of $400 payments, with the states making up the rest) is unlawful and unconstitutional.
This is election-year politics, pure and simple. It is utterly irresponsible of Congress to have gone on recess without addressing the emergency needs of Americans whose unemployment compensation under the CARES Act is about to expire. Democrats are committed to an extortionate game of chicken. They are withholding any extension of wage-loss relief short of the prohibitively costly $600-per-week level that has disincentivized work and would further delay the recovery (encouraging blue-state governors to keep unsustainable restraints on their economies). Simultaneously, they are demanding that Republicans and the president bail out mismanaged blue states and cities and fund progressive policy priorities that have nothing to do with COVID-19.
The gamesmanship certainly justifies the president’s complaint, in the memo setting forth his executive action, that congressional Democrats “have twice blocked temporary extensions of supplemental unemployment benefits.” It cannot, however, rationalize the president’s flouting of the Constitution.
The president theorizes that, because in April he declared that a “major disaster” exists in all states due to the pandemic, this authorizes spending out of the Disaster Relief Fund, with 75 percent federal cost-sharing on applicable expenditures. He says this is permissible under the provision of the Stafford Act that addresses “lost wages assistance.”
This is wrong at every turn. As I pointed out in March, an infectious-disease outbreak does not qualify as a major disaster. Under federal law, major disasters are limited to natural and other catastrophes that cause widespread damage to physical infrastructure — e.g., hurricanes, floods, or explosions.
A pandemic may arguably be fodder for a presidential declaration of an emergency (another statutory term of art, less severe than a major disaster). There is an emergency any time the president determines that a “public health and safety” crisis may overwhelm state capabilities and thus require federal assistance. This could enable federal cost-sharing for such relief as medical supplies, tests, vaccinations, and the like.
On unemployment compensation, however, the president is invoking laws that permit him to provide essential assistance in a major disaster. A perusal of the law elucidates that, as to this term, Congress had in mind catastrophes that destroy physical infrastructure. The contemplated federal responses include providing equipment, personnel, food, water, and medicine, as well as help with debris removal, road clearance, demolition of unstable structures, temporary school facilities, and so on.
Indeed, the statute the president specifically cites as support for his authority to provide “lost wages assistance” (Section 5174(e)(2) of Title 42, U.S. Code) is specifically limited to addressing “personal property, transportation, and other necessary expenses or serious needs resulting from the major disaster.” That is, even in a covered major disaster, there is nothing in the law that would allow a president to pay lost wages. The point is to help pay for specific needs that would arise out of the destruction of property caused by a catastrophe such as an earthquake or a fire. That, no doubt, is why the now lapsing provision of unemployment compensation came from an act of Congress. Republicans on Capitol Hill swallowed hard and agreed to much that Democrats demanded because everyone knew legislation was the only constitutional way to help people who’d lost their jobs.
Arguably, this same constitutional argument could invalidate another action the president took over the weekend, to suspend payroll taxes. In Monday’s National Review editorial, my fellow editors argue that these two Trump orders — on lost wages and tax postponement — raise identical constitutional objections. They further contend that these objections are indistinguishable from those provoked by President Obama’s usurpation of legislative authority in decreeing amnesty for certain categories of illegal immigrants (the DACA and DAPA programs).
I ultimately agree that all these unilateral executive actions are abuses of the Constitution’s separation of powers. That said, I come at this from a different angle. I believe there are significant differences in the degree of presidential abuse involved in the different orders, and I respectfully disagree with what I take to be the editors’ implication that all blame for abuse should be assigned to the president. I believe the main culprit is Congress.
The editors assert: “Even if there is a statutory basis for these acts, they are still an abuse” because “they warp the separation of powers to accomplish presidential goals.” To the contrary, I believe the major abuse lies in what the editors fleetingly mention but do not address, the “statutory basis.” That is, Congress should not delegate legislative authority to the president. It does so all the time, though. Often it empowers the president unilaterally to declare a crisis of some kind — an emergency, a disaster, a national-security threat, etc. — and thereby to exercise what are actually legislative powers.
I am opposed to such delegations in most situations. But unless and until this constitutionally dubious practice is ended, delegations are the law. Consequently, I believe determining whether a president can fairly be said to abuse power by ignoring separation of powers depends on whether the president is complying with, stretching to the margin, or flat-out transgressing such a delegation.
As I explain above, President Trump’s unemployment-compensation order transgresses the limits on disaster relief that Congress has prescribed. Since Congress has authorized presidents neither to declare major disasters based on infectious-disease outbreaks nor to underwrite unemployment compensation even in crises that actually qualify as major disasters, the president unconstitutionally usurped Congress’s legislative authority by granting such relief.
The payroll-tax suspension is a closer question. In that order, President Trump relied on statutes (Sections 7508A and 7508 of the tax laws) by which Congress has authorized the executive branch to postpone for up to a year the withholding, deposit, and payment of tax obligations. Section 7508A states that this authority applies when there has been “a federally declared disaster.” At first blush, that would seem to mean a disaster as opposed to an emergency — the distinction addressed above. But the tax code arguably defines disaster more broadly than do the afore-described disaster-relief laws, applying it to situations in which federal relief has been triggered under the Stafford Act.
It is thus not unreasonable to posit that Congress has delegated tax-deferral authority to the president if an emergency has been declared under the Stafford Act. Nevertheless, I do not believe Congress has done so. When it refers to the Stafford Act declaration, the tax code uses the word disaster, not emergency. Moreover, the statute the president relies on speaks of postponing taxes “by reason of Presidentially declared disaster or terroristic or military actions” (emphasis added). That is, the statute contemplates catastrophic events that have destroyed or damaged physical infrastructure — not infectious-disease outbreaks.
Here is my problem with the objections being raised at this point. No one objected four months ago when the president declared a major disaster. We all understand why, even though the circumstances did not legally warrant such a declaration, politically, people wanted Trump to take decisive action (particularly on supply problems related to ventilators and protective equipment for health-care personnel).
Okay, fine. But if you had no objection to the COVID-19 major-disaster declaration, and all the robust executive action that followed, then I don’t see how you can object to the payroll-tax deferral on the ground that Trump is usurping Congress’s power. If it’s a major disaster, then he undoubtedly has the authority to defer. And while I can see an objection to the unemployment compensation, the question is much closer if you have conceded that the pandemic is a major disaster: Congress has undeniably delegated broad authority to the president to provide relief to individuals affected by such a disaster; the problem is that the president’s order stretches the language of those delegations a bit too far — they almost cover lost wages, but not quite.
By contrast, President Obama’s conferral of immunity and employment status to illegal immigrants was not even arguably supported by an emergency. He rationalized that the doctrine of prosecutorial discretion, which he stretched beyond the breaking point, permitted him to ignore his constitutional obligation to execute the laws faithfully. Even if you bought that claim (and it was unpersuasive), only Congress has the power to grant positive legal benefits. This, no doubt, is why Obama said several times that he did not have the authority to do what he did. It is also why, when he reversed himself, he did not do it in an executive order that he signed; he had his Homeland Security Department issue guidance memos to its agents.
Obama’s usurpation of executive power was patent. Trump’s is less so.
All of these imperious executive exercises, as the editors contend, are abusive because the president is performing the work the Constitution assigns to Congress. But that would not happen if Congress had not so pervasively surrendered its power to the executive. If the Article II branch brazenly usurps, it is mainly because the Article I branch so cravenly abdicates.