DEMS HAND TRUMP A BIG POLITICAL WIN
WASHINGTON — House Speaker Nancy Pelosi, D-California, lashed out at President Donald Trump over the weekend for unilaterally extending the federal unemployment supplement and providing other relief to Americans struggling because of the pandemic. She called his executive actions “absurdly unconstitutional.” No, they are not. If anything, Trump’s actions were restrained.
Congressional Democrats thought they had Republicans cornered in the standoff over a new coronavirus relief package. They were so overconfident that they refused to temporarily extend the federal supplement at the existing $600 level while the two sides negotiated — using the suffering of working Americans as leverage. The Democrats likely figured that if Republicans refused to cave to their demands, Americans who lost their unemployment supplement would take out their anger on Trump and the GOP on Election Day.
The Democrats failed to anticipate that Trump could go around them and give the aid to struggling Americans on his own. Now the political tables are turned. Because Trump acted unilaterally, Democrats get no credit for extending the relief. They handed Trump a big political win. Their only recourse now is to sue Trump to stop him.
Suing to block the rescue would be politically suicidal, but if Democrats were dumb enough to do it, they would lose — because Trump’s actions are unquestionably lawful. Every action he took was authorized by Congress. To suspend payroll taxes, Trump used tax-deferral authority Congress granted him in the Cares Act, which he had already used to shift the tax date from April 15 to July 15. To suspend student loan payments and interest, Trump used authority Congress granted under the Higher Education Act of 1965 and the Omnibus Budget and Reconciliation Act of 1993 (authority that Joe Biden, as a Democratic senator from Delaware, voted to give the president). To extend the federal unemployment supplement, Trump used authorities Congress gave under the National Emergencies Act and the Disaster Mitigation Act of 2000 to provide financial aid to disaster victims.
In none of these cases did Trump rely on any presumed constitutional powers. But he could have gone much further by relying on the powers the Supreme Court recently granted him in Department of Homeland Security v. Regents of the University of California. In that case, the high court blocked his efforts to end President Barack Obama’s Deferred Action on Childhood Arrivals program. Obama claimed that he had the discretion to not enforce the nation’s immigration laws against an entire class of undocumented immigrants.
Under the Regents precedent, Trump has virtually unlimited power to stop enforcing any part of the tax code or any economic regulations he dislikes.
On Monday, the president said he is “looking very seriously at a capital-gains tax cut and also at an incometax cut for middle-income families.” He could do this using the same presumed authority Obama used for DACA, by directing the Internal Revenue Service not to go after those who fail to pay these taxes.
Trump’s critics on the right say this would set a dangerous precedent. But Trump would not be setting a precedent; he would be using the precedent Obama set and the Supreme Court upheld. And if Biden wins, he won’t be bound by Trump’s restraint. He probably won’t even need to take executive action — because Democrats will get rid of the legislative filibuster and ram his agenda through Congress.
Trump’s unilateral action was politically brilliant. If Democrats don’t compromise, he might just be getting started.