Throughout his presidency, Donald Trump has faced a barrage of lawsuits from top Democrats and liberal advocacy groups challenging his broad assertions of executive power, usually over contentious issues like his crackdown on sanctuary cities or his refusal to cooperate with congressional investigations.
Now, however, the president faces a battle over a set of executive actions he issued on Saturday providing economic relief measures that many of his fiercest critics actually support, including weekly federal unemployment payments, student loan relief and efforts to protect tenants from eviction during the pandemic.
With those actions, Trump is trying to wrest core powers away from Congress, after weeks of discussions over a second pandemic rescue package stalled on Friday. Democratic lawmakers, who were pushing for a much more expansive relief plan, have called the orders an insufficient stopgap that will be difficult to implement. And in the coming weeks, the president’s directives are likely to get tied up in litigation over whether they violate core constitutional principles like the separation of powers.
“If he could actually help people, that would be great,” said Laurence Tribe, a constitutional law professor at Harvard University. “But the Constitution isn’t a magic wand for the president. Anything as sweeping as what he’s promising is just pie in the sky.”
At the heart of Trump’s plan is an extension of the weekly federal unemployment payments that lapsed in July, several months after Congress established them as part of its initial coronavirus relief package. Trump has proposed financing $400 weekly payments, down from $600 under the original legislation, by redirecting funds from the Federal Emergency Management Agency and calling on the states to cover some of the costs with money left over from the first relief package.
To critics, that creative budgeting looks like an illegal end run around Congress, which has spending power under the Constitution. House Democrats sued to prevent a similar effort by the White House to finance the construction of a wall on the Mexican border using funds redirected from the Defense Department.
“He’s basically saying he doesn’t need to rely on Congress’s power of the purse -- he can simply spend money, and he can spend it on whatever he wants,” Tribe said. “And that’s simply not the law.”
One question is, who will sue? While they have criticized the orders as insufficient and impractical, congressional Democrats may view it as politically risky to block payments to Americans in distress.
“It puts the administration in a different position than what they’ve been used to,” said Keith Whittington, an expert on politics and law at Princeton. “It’s smart politics.”
But states that planned to use pandemic relief funds for purposes other than unemployment payments might refuse to comply with Trump’s directive, potentially setting up a legal battle. The president seemed to acknowledge that possibility when he announced the orders on Saturday.
“I guess maybe they’ll bring legal actions. But they won’t win,” he told reporters. “I think this will go very rapidly through the courts.”
Landlords are among the potential litigants. One of the orders Trump issued appears to give federal housing officials broad discretion to prevent evictions.
“Every legal aid lawyer in the country faced with a destitute client being evicted will slap this executive order on the judge’s table and say there should not be any eviction,” said Charles Tiefer, a law professor at the University of Baltimore. “And their landlords who have federally insured mortgages will argue back that it would be illegal for evictions to be halted.”
In a third order, the president said he would defer payroll tax payments from September through December for people making less than $100,000 a year, a proposal that has met bipartisan opposition in Congress because it could endanger funding for Social Security and Medicare. The order also said the Treasury Department would “explore avenues” to eliminate the obligation to pay the tax altogether.
That directive may well draw legal challenges.
“The argument behind the payroll tax seems very aggressive,” said Whittington. “The breadth of the order clearly exceeds what Congress anticipated in giving the Treasury some discretion to delay tax deadlines in disaster areas.”
Trump may have better luck defending the fourth of his executive actions -- student loan relief. Existing federal statutes allow the secretary of education to temporarily delay loan repayments during periods of economic hardship.
It’s unlikely that perennial opponents of Trump like liberal advocacy groups, congressional Democrats and Democratic state attorneys general would want to block that measure, and they might not even have legal standing to sue.
“It is not clear who would be well situated to challenge the administration’s action,” Whittington said.