Trump’s executive actions: Legal? Helpful? Three questions.

The Explainer

Flourishing a pen, President Donald Trump attempted an end run around stalled congressional negotiations Saturday, signing a series of executive actions he said would “pretty much” take care of the nation’s coronavirus relief needs.

Days later, U.S. states and companies are struggling to figure out how – or whether – to implement the president’s directives.

As with many of Mr. Trump’s unilateral domestic moves, a close reading of the documents shows that the details don’t quite match the sweeping claims. The executive actions he approved appear to be, at best, less than meets the eye – and, at worst, unworkable. Some may also be illegal.

The unemployment memorandum, for instance, requires that hard-pressed states kick in 25% of the extended $400 weekly per-person benefit. Some Democratic governors were scathing about the chance of that happening.

“The concept of saying to states that you pay 25% of the unemployment insurance is just laughable,” said New York Gov. Andrew Cuomo. “The executive orders will not be a substitute for legislation.”

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It’s possible the document signings were as much a negotiating tactic as an end in themselves. On Monday Mr. Trump and senior administration officials pressed Democrats to return to the bargaining table. On his Twitter feed, the president claimed that Senate Minority Leader Chuck Schumer and House Speaker Nancy Pelosi now “want to make a deal. Amazing how it all works, isn’t it.”

But the two Democratic leaders said they had not contacted the White House, and, as of Tuesday, no further negotiations were scheduled – though both sides said they remained open to discussions. On the bottom-line cost, the two sides remained far apart. Democrats were seeking relief worth about $2 trillion, down from an initial $3.4 trillion target. Republicans have countered with a package worth $1 trillion.

Here are three questions sparked by the president’s weekend moves:

What, exactly, did President Trump sign? 

On Saturday at his Bedminster, New Jersey, golf club the president proclaimed that he was going to sign “bills” that would “take care of, pretty much, this entire situation” (meaning Congress’ failure to agree on a relief package).

He announced he was postponing payroll taxes through the end of the year, extending extra federal unemployment benefits, helping people stay in their homes, and waiving payments on federal student loans.

The documents the president signed weren’t bills, a term generally reserved for legislation passed by Congress. He signed one executive order on housing, and three presidential memorandums, which carry less legal weight.

On housing, Mr. Trump’s order did not extend the federal ban on many evictions, which expired in late July. Instead, it called for top administration housing officials, including Health and Human Services Secretary Alex Azar, to “consider” whether a new eviction ban is necessary.

On unemployment benefits, Mr. Trump’s memorandum extended extra federal payments. But the amount was cut to $400 a week, from the previous level of $600 – and of that, states would have to supply $100. The memo’s wording holds that if a state can’t ante up that cash – and many will be hard-pressed to afford it – it won’t get the federal supplement.

On payroll taxes, Mr. Trump’s memo instructs the Treasury to stop collection of the 6.2% paycheck levy from Sept. 1 to Dec. 31. But it’s a deferment, not a tax cut – meaning that at the end of the year, taxpayers (or their employers) would have to pay the full amount for that period of time.

On federally held student loans, Mr. Trump’s memo waives all interest until the end of the year, and delays principal payments until Dec. 31. On Jan. 1, normal payment schedules are supposed to restart. 

What happens next? 

Court challenges may delay implementation of some or all of these moves. But the main challenge may be that the executive actions are so narrow and complicated, particularly for the unemployment payments and payroll tax deferments, that many states and businesses will likely struggle to figure out what exactly to do.

Take the extension of federal unemployment benefits, arguably the most important of all Mr. Trump’s actions. States are supposed to pay $100 a week per person of the cost, and administer the effort besides. If they can’t afford that, will they get nothing? The memo’s wording suggests that would be the case, but on Tuesday administration officials backed up a bit and clarified the situation. White House economic adviser Larry Kudlow said states would be able to credit $100 of their existing unemployment benefits toward the 25% cost-sharing requirement. States would still have to apply for the benefit, according to Mr. Kudlow.

Plus, the unemployment memo draws on federal disaster funds as its source of money. At current levels of unemployment, the disaster money would be used up within weeks – certainly by October. Should a state go through the hassle of changing its data systems to accommodate the new payments, if it may not be able to do so before the money effectively runs out? Many states may not be able to implement this program, according to Georgetown University law professor David A. Super.

Likewise, the tax deferment doesn’t make the obligation go away. Will companies adjust their payroll calculations to temporarily stop collecting a tax that they’ll just have to collect later, under current law? And if they do make those changes, and employee income temporarily increases, will that be subject to income tax?

Mr. Trump has said that if reelected, he will forgive the deferred payroll tax. But he doesn’t have the power to do that – presidents can’t cut taxes on their own. Plus, it’s a ton of money, another trillion dollars or so, and it’s the primary funding mechanism for Social Security and Medicare, the government’s giant (and popular) senior support programs.

Many businesses may just throw up their hands and leave payroll withholdings as they are.

Are the actions unconstitutional? 

Republican Sen. Ben Sasse of Nebraska has slammed Mr. Trump’s signings as “unconstitutional slop.” Indeed, the Constitution explicitly assigns taxing and spending powers to Congress, and Mr. Trump is trying to take some measure of that power for his own.

But the order and memos are so narrowly drawn that they may avoid constitutional issues. They draw on existing presidential powers as outlined in statutes such as the Disaster Mitigation Act of 2000, which allow chief executives to spend federal money on relief for disaster victims, according to University of Chicago law professor Daniel Hemel.

They’re not illegal so much as ineffective, according to Mr. Hemel.

President Barack Obama used an executive order in 2014 to order prosecutorial discretion in the case of the “Dreamers,” immigrants brought to America illegally as children. Republicans say that precedent is one of the things Mr. Trump is drawing on today.

The Democratic response to Mr. Trump’s measures has generally been to portray them as insufficient, not as executive branch overreach. The implication: Under a President Joe Biden, executive orders and memorandums might continue to play a role in getting around congressional inaction.