The Corner

Politics & Policy

Sasse: Trump’s ‘Executive Lawmaking Is Unconstitutional Slop’

Nebraska GOP senator Ben Sasse weighed in on the executive actions taken by President Trump over the weekend because of Congress’s stalemate over another COVID economic-relief bill: 

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.

On the homepage, Yuval Levin and Adam White make the case that although Trump’s orders may not violate the letter of any specific law, they are still “constitutionally dangerous”:

As real relief, these measures are precarious and weak. But as exertions of executive authority, the latter two memoranda in particular are constitutionally dangerous. That is not to say that a judge would necessarily throw them out; they are substantively weak because they are written to avoid expressly violating any law. And if the Constitution is just a law as well, then there are surely justifications that the administration’s lawyers could offer for both memos that might satisfy the federal courts.

But if the Constitution is more than a law, if it establishes a system of government with a particular character, then there could hardly be any question that a presidential action explicitly setting out to change federal policy regarding both spending and taxing, and to do so precisely because Congress has declined to take these steps, violates that character. 

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