Read on Twitter
1/ A thread (I don't know length yet) with some points relevant to understanding President Trump's EOs today.
2/ Here are links to the EOs:
On payroll taxes. https://www.whitehouse.gov/presidential-actions/memorandum-deferring-payroll-tax-obligations-light-ongoing-covid-19-disaster/
On renters and homeowners. https://www.whitehouse.gov/presidential-actions/executive-order-fighting-spread-covid-19-providing-assistance-renters-homeowners/
On student loan payments. https://www.whitehouse.gov/presidential-actions/memorandum-continued-student-loan-payment-relief-covid-19-pandemic/
And on https://www.whitehouse.gov/presidential-actions/memorandum-authorizing-needs-assistance-program-major-disaster-declarations-related-coronavirus-disease-2019/
On payroll taxes. https://www.whitehouse.gov/presidential-actions/memorandum-deferring-payroll-tax-obligations-light-ongoing-covid-19-disaster/
On renters and homeowners. https://www.whitehouse.gov/presidential-actions/executive-order-fighting-spread-covid-19-providing-assistance-renters-homeowners/
On student loan payments. https://www.whitehouse.gov/presidential-actions/memorandum-continued-student-loan-payment-relief-covid-19-pandemic/
And on https://www.whitehouse.gov/presidential-actions/memorandum-authorizing-needs-assistance-program-major-disaster-declarations-related-coronavirus-disease-2019/
3/ Obvious background: The Constitution gives Congress control over taxing and spending the peoples' money. The Framers thought that was just about the most important power reserved to the people. See Federalist 58. https://avalon.law.yale.edu/18th_century/fed58.asp
4/ Other background: The exec branch has been pushing legal and constitutional limits, and then some, on its power over money. The bipartisan "Power of the Purse" coalition and the House Budget Committee has been lamenting this. https://s3.amazonaws.com/demandprogress/letters/7.1.20_Power_of_the_Purse_Coalition_Letter.pdf https://budget.house.gov/legislation/hearings/protecting-congress-power-purse-and-rule-law-0
5/ What happens when the executive pushes the limits? It depends on which limit and the circumstances so I won't get into details here. One big player is GAO, which investigates and publicizes abuses. DOJ could be a player, because using $$$ without an appropriation is a felony.
6/ If you want to understand more about this stuff, @epasachoff has a great article from 2016 that's well worth a read. https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2775822 She also has a great forthcoming paper specifically on some of the budget tricks, I'll retweet whenever I see it posted!
7/ OK onto the EOs.
Remember, EOs are (usually) not "law," and the President has very limited power under the Constitution in the domestic space. In many cases, Congress gave AGENCIES power for specific purposes, but they are only supposed to wield it as Congress instructed.
Remember, EOs are (usually) not "law," and the President has very limited power under the Constitution in the domestic space. In many cases, Congress gave AGENCIES power for specific purposes, but they are only supposed to wield it as Congress instructed.
8/ The rental and homeowner EO is an example of the Preisident's limited power. I've posted a picture of the key provision. Read it a couple times. It does not seem to do anything, but rather tells agencies to consider doing things.
9/ The student loan EO does something, but it's unclear how much. In March 2020, the Sec'y of Ed granted all federal student loan borrowers interest-free deferment of their loans for 60 days. https://www.washingtonpost.com/education/2020/03/20/trump-administration-lets-borrowers-suspend-federal-student-loan-payments/
10/ Congress then formalized an extension and adjusted it to not set back public service loan forgiveness, but the extension is running out. The EO orders the Sec'y of Ed to re-establish the extension. That's interesting...
11/ The statute says the Sec'y can defer loans if "the borrower has experienced...economic hardship." So is the Sec'y supposed to assume that every American with a federal student loan has suffered a hardship, just because the Pres. ordered her to?
12/ I'm not going to opine without studying the issue, but it's a question.
13/ Ok now on to payroll taxes. Hoo! I am not a tax person, so will be extra careful here. But it exercises an authority under 26 USC 7508A to "DEFER" payroll tax deadlines until one month after the election. But the tax would still seem to be due, just a bigger bill later?
14/ And now the Unemployment Insurance EO. Congress gave money for extra UI and it is running out. Congress has the power of the purse. So what does this do?
15/ Congress gave the DoD $75 billion for disaster relief, which covers lots of purposes. This EO tells DoD to devote that fund to match state UI payments up to 75%, as long as DoD keeps $25 billion in the fund for other purposes.
16/ (I should have written DHS not DOD). The upshot? STATES that can afford to foot 25% can extend UI, and get 75% of the cost paid for with federal disaster relief funds, for a maximum of around $44 billion in federal dollars.
17/ Many many operational and legal questions about this UI move, including what happens to a state that extends UI only to discover federal funding runs out before it gets its bill cleared?
18/ Some concluding thoughts. First, policy and political issues here are big, not just legal ones. On policy, @centeronbudget has a statement contrasting this to the relief that is needed and had been contemplated by Congress. https://www.cbpp.org/press/statements/greenstein-trump-covid-19-executive-actions-woefully-inadequate-legally-dangerous
19/ Second, all the legal questions here aren't a flue. Unlike, say, agency regulations, agencies don't ordinarily give the public an explanation of what they are doing in the fiscal realm and, especially, why it is legal.
20/ That lack of transparency has some reasons, but makes the job of voters, lawyers, and politicians who want to keep the executive branch honest very hard. If we don't even know their reasons how do we challenge? And who can sue over someone else's $$$?
21/ @USGAO plays an important role in this space getting information from agencies about what they did and telling the public and Congress whether it was lawful, but that process today is really slow. Don't hope for this issue to be aired out by GAO publicly before the election!
22/ As for politics, lots of republicans were upset with controversial Obama Admin actions w/r/t ACA $$, as @nicholas_bagley surveyed at the time. Will be interesting to see if they express concern on constitutional and institutional grounds here, or not. https://scholarship.law.upenn.edu/penn_law_review/vol164/iss7/16/
23/23 Finally, another big $/COVID move last week came from the courts. SDNY held unlawful a Trump Admin (Labor) rule that limited the availability of paid leave by adopting a very narrow interpretation of a Covid relief statute. https://www.bloomberglaw.com/exp/eyJjdHh0IjoiQ1ZOVyIsImlkIjoiMDAwMDAxNzItODYwZS1kMmNlLWExZjYtZWU5ZmE2NDkwMDAxIiwic2lnIjoiWWRSNHRSVkpCc05kY1Vmalg2UXdSZ1N1Y3RBPSIsInRpbWUiOiIxNTk2NDc4ODA2IiwidXVpZCI6IkhTUHlKTldObDlxaVZ1ZTlMTStXc0E9PTJFeGpiT0c1Vm9Lem02N3JmQ3hCTFE9PSIsInYiOiIxIn0=?usertype=External&bwid=00000172-860e-d2ce-a1f6-ee9fa6490001&qid=6953426&cti=LSCH&uc=1320018923&et=SINGLE_ARTICLE&emc=bcvnw_cn%3A1&bna_news_filter=true
24/ Ok another note. Some ask about courts. Devil on standing is in details. Tough but not impossible. Biggest current protector of law on exec $ is good faith public servants. Fragile. For reasons courts are tough see Mila Sohoni: https://scholarship.law.duke.edu/dlj/vol66/iss8/1/