(Bloomberg Opinion) -- Over the weekend, President Donald Trump issued several new executive orders aimed at extending the Covid-19 economic stimulus that has offered some financial relief to millions of Americans. But instead of bringing clarity, the orders have generated a raft of confusion. Are they even constitutional? Will they go into effect?
For your convenience, here’s a simple rule of thumb for what the president can and cannot do on his own, without Congress: No to new money; yes to relaxed collection of money you owe the government.
Under the Constitution, only Congress can initiate new spending. The president may only spend money that has already been appropriated. He’s supposed to spend it on the purpose for which Congress appropriated it in the first place; but in real life, he has pretty wide discretion to say whether a given expenditure fits under a given appropriation.
This is the reason Trump’s proposed supplemental unemployment benefit of $400 may not last long, if it goes into effect at all. Congress hasn’t allocated any new money (yet) for a new benefit. So Trump can only spend money already appropriated for other, related purposes in FEMA emergency funds. He can’t overspend the existing appropriation. (He may be gambling that if he uses up money that’s supposed to be spent on hurricanes and other natural disasters, Congress will hurry up and appropriate more money.)
Someone will probably file a suit saying that Trump can’t use the FEMA emergency funds for the supplemental benefit. But in practice, a court would likely defer to Trump’s executive discretion on what counts as a reasonable use of emergency funds.
There is one quirk to be noted: $100 of the $400 is supposed to come from states, and Trump’s order seems to say you can only get the federal $300 if you first qualify for the state’s $100. Trump can’t control what states do. And it is uncertain whether the president can condition receipt of the $300 benefit on states first providing $100. The Supreme Court has held that a condition on federal aid can’t be a “gun to the head” of states. This condition could conceivably count as a gun, pressuring states to comply or lose $300 per qualified citizen. (There are technical reasons to think it might not count as a gun, though, mainly that this is new condition on a new benefit — not a removal of an existing benefit.)
The Constitution also gives the president a lot of leeway in seeing federal laws enforced. He can delay enforcement or even announce that he won’t enforce certain laws, the way President Barack Obama used his discretion on immigration enforcement to create DACA, the Deferred Action for Childhood Arrivals program.
That means the president can delay the collection of both student loans and the federal payroll tax. To be sure, the president can’t waive the debts. Only Congress could do that. You will still ultimately owe your student loan payments — and your payroll taxes. The president’s enforcement leeway only extends to the time of enforcement, not eliminating the laws that create the obligations. (Similarly, DACA can’t turn Dreamers into citizens. Only Congress could pass a law doing that.)
That leaves Trump’s proposed federal ban on evictions. It’s actually written to allow the Department of Health and Human Services and the CDC to take potential action — not to do anything yet. It says only that:
The Secretary of Health and Human Services and the Director of CDC shall consider whether any measures temporarily halting residential evictions of any tenants for failure to pay rent are reasonably necessary to prevent the further spread of COVID-19 from one State or possession into any other State or possession.
It is far from clear what legal authority, if any, the executive branch would have to block evictions based on state landlord-tenant law. This Trump proposal would likely be unconstitutional if it actually had any teeth — which it doesn’t.
Whether you’re one of the people who need immediate relief, or one of those whose businesses and investments depend on the extra support for consumer spending, there are still a lot of question marks here. But a little 8th-grade civics lesson is all you need to see that these orders are a pretty flimsy shield.
This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.
Noah Feldman is a Bloomberg Opinion columnist and host of the podcast “Deep Background.” He is a professor of law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “The Three Lives of James Madison: Genius, Partisan, President.”
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