Criminal Questions apply Trump's govt Orders On Stimulus …

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LEILA FADEL, HOST:

President Trump today signed four executive orders to provide economic relief to millions of Americans amidst the coronavirus pandemic. The move comes after the White House failed to come to an agreement with Congress on a new relief bill.

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Legal Questions Follow Trump's Executive Orders On Stimulus …

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Speaking at his golf club in New Jersey, the president said the measures would extend enhanced unemployment benefits of $400 a week, lower than the $600 benefit that expired at the end of last month. His other actions would extend a moratorium on evictions and the suspension of student loan repayments, as well as defer payroll tax collection for those earning less than $100,000 a year.

The Constitution gives Congress the power to control federal spending, so there are legal questions hanging over at least some of the orders the president announced today. So we begin tonight with a close examination of presidential executive powers. And for that, we’re joined by Andrew Rudalevige. He’s the chair of the department of government and legal studies at Bowdoin College in Maine. He joins us now from his home in Brunswick, Maine.

Legal Questions Follow Trump's Executive Orders On Stimulus …

Hello.

ANDREW RUDALEVIGE: Hi. It’s great to be with you.

FADEL: Great to have you. So the key question here, professor, is, can the president act on his own in the manner that he did today?

RUDALEVIGE: Well, I think we can divide today’s executive actions into two categories. Maybe the least controversial – the payroll tax, student loans, housing. And there are certainly implementation difficulties with all of these. But here, the president seems to be relying on powers granted to the executive branch over time by Congress – powers that can be used in times of war or national emergency.

You’ll remember that back in the spring, the president issued a series of emergency and disaster declarations that helped activate these statutory provisions. So he may be stretching those a little bit. I haven’t seen the text closely enough to know how exactly this is going to work or how the administration hopes. But certainly, in that category, there are powers that have been delegated over time that can be activated in times of emergency.

The unemployment funding – that seems to be in a different category to me…

FADEL: OK.

RUDALEVIGE: …In that it is really using appropriated funds by Congress in ways that Congress might not have intended.

FADEL: So does he need Congress to take action in any way to make the orders he announced a reality?

RUDALEVIGE: Well, that would be a lot cleaner. The Constitution says that money can be only – can only be spent if it’s appropriated by Congress. And indeed, in the 1970s, there’s the famous Supreme Court case denying the president the ability to not spend money that Congress has appropriated. So in terms of, you know, where the money for unemployment benefits is going to come from, he talked about 25% of it coming from the states’ share of the CARES package that was passed in the spring.

But where the other 75% is coming from – that’s not known and I would think would require congressional appropriation. And certainly, the amount available to the president is unlikely to be sufficient to push those benefits too much further.

Keep in mind the president does have some authority to move money around inside the federal budget. You know, that’s a convenience. It’s not likely that Congress is able to come back and shift, you know, small amounts in the budget, you know, on a regular basis during a fiscal year. But this has been something the president has pushed pretty aggressively, maybe most famously with the border wall, trying to free up cash that, again, Congress has not appropriated.

FADEL: President Trump last night said he’d probably get sued after he issued these orders. Would you agree? Are legal challenges all but certain?

RUDALEVIGE: Yeah. I think those are going to be moving fairly rapidly. Again, on the question of unemployment appropriations, it’s conceivable that the Congress itself could have some standing to sue. The House sued President Obama, for example, over spending on the Affordable Care Act. I think you might see some pushback on, you know, the payroll tax and how that’s implemented. The president can defer the payroll tax, but he can’t forgive it. He talked about terminating the tax, but that would certainly require a law to do that. So I think you will see pushback here.

The student loan provisions perhaps are the cleanest in that there’s quite a lot of emergency power built into statute as recently as 2003 to give the Education Department some flexibility over student loans. And in any case, you have sort of the weird situation where the people who would be most affected actually would be grateful for the relief, presumably.

Again, you know, this is not the first time presidents have messed around with administrative deadlines. Back in 2013, President Obama delayed certain deadlines that were in the Affordable Care Act. But again, since the people who didn’t want to meet those deadlines were the ones who would presumably have standing to sue, you know, they were not in a – you know, not really eager to do that. They were happy with the relief.

FADEL: Now, President Trump has used executive orders often in his administration, as you mentioned, the travel ban among them. And he issued one just days ago that aims to ban the Chinese-owned app TikTok from doing business in the U.S. How does his use of executive orders compare to that of past presidents?

RUDALEVIGE: Well, I think he’s more inclined to invoke emergencies and the kinds of powers again that are scattered across the U.S. Code. In times of emergency, the president can do things like suspend immigration or trade. But generally, the – President Trump hasn’t necessarily done more in terms of executive action, but he’s certainly used those powers in ways that perhaps the authors of the statutes did not intend. Hence you’ve seen quite a lot of controversy erupt. And I expect that these orders today will just provoke more.

FADEL: That was Andrew Rudalevige, chair of the department of government and legal studies at Bowdoin College in Maine. Professor, thank you for speaking with us.

RUDALEVIGE: Thank you for having me.

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