Governance by Executive Order

“No Money shall be drawn from the Treasury, but in consequence of Appropriations made by Law.” —Article 1, Section 9 of the U.S. Constitution.

“He [the President] shall take Care that the laws be faithfully executed.” —Article 2, Section 3.

That the COVID-19 pandemic has inflicted severe harm in these United States is an unavoidable fact. Equally unavoidable is that this crisis shall require vast public expenditure before it subsides; and because the several States now stand at or beyond the limit of their fiscal capacity, it is inevitable that those funds shall have to be provided by the federal government. Congress has made one such provision already, but has thus far faltered on the second attempt. A large section of our Union’s citizens and residents await a resolution.

Yet,

Governance by decree is contrary to the preservation of our Republic. No republic may long survive without adhering to the separation of powers, and only Congress is vested by the Constitution with the power to make appropriations of public funds. The executive may not withdraw funds from the Treasury, nor deprive the Treasury of tax revenue, unless authorized by law. To attempt otherwise would be an unlawful assertion of absolute and thus tyrannical power.

However,

The series of executive actions taken on August 8th, purportedly with the aim of alleviating the personal economic injury caused by COVID-19, is not necessarily unlawful, for it makes use of authorities delegated by existing law to the executive branch.

Of these, the executive order supposedly extending a moratorium on residential evictions is an empty document, which merely directs the executive bureaucracy to “consider,” “identify,” and “review” various objects and is devoid of concrete measures.

The presidential memorandum ordering the deferment of student loan repayments invokes a discretionary authority that seems, with reasonable clarity, to have been delegated by Congress to the Secretary of Education for a purpose applicable to the present situation: “A borrower of a loan made under this part shall be eligible for a deferment during any period not in excess of 3 years during which the Secretary determines… that the borrower has experienced or will experience an economic hardship.”

The memorandum ordering a deferment in the collection of the federal payroll tax makes use of an authority delegated by law to the Secretary of the Treasury to disregard tax liability for up to a year “in the case of a taxpayer determined by the Secretary to be affected by a federally declared disaster.” The final action, involving the extension of special unemployment benefits, attempts to draw money from a fund previously appropriated by Congress to provide for disaster relief.

Whether the two latter actions are lawful depends on whether the laws governing federally declared disasters were intended to be used in such a way. That question shall sooner or later be settled by the courts.

Nonetheless,

The motive of the incumbent President in regard to these actions may justly be called into question. As often before, his use of executive orders appears to be primarily for the purpose of staging political theater. He could well have taken vigorous measures more clearly consistent with the lawful powers of his office earlier in the course of the virus’ spread, so as to mitigate the severity of the present crisis;[1] but he did not act earnestly then. Half-measures today, done with doubtful authority, shall bring less benefit to the people in comparison.

Furthermore, this President has attempted before to draw money from the Treasury in open defiance of the separation of powers. In 2019, he ordered the expenditure of additional public funds for the construction of barriers on our Union’s southern border after Congress had unambiguously declined to appropriate the sum he had requested for that purpose. This action, illustrative of his Presidency as a whole, showed a contemptuous disregard for the spirit of the Constitution, if not yet—for we still await the Supreme Court’s judgment—the letter of the law.

Therefore,

Rather than simply decry each new order, it is time for Congress to reexamine the authority that it has, over the past century, delegated by law to the executive branch. Such allowance has perhaps been made too generously in the expectation, hitherto mostly well-founded, that the President would take care that the laws be faithfully executed. Presented as we now are with a pattern of bad faith, itself the logical progression of an era in which successive Presidents reached too readily for the executive pen, the preservation of our Republic may best be ensured by the legislature again reserving to itself a greater part of its constitutional authority.

It may well be that the laws governing national disasters—which by their very nature require a flexible and timely response—are not those which most warrant such revision. But if their misuse awakens the public to the broader delegation of legislative authority that permeates myriad aspects of life, then it shall have done a public good. In the meantime, Congress, too, ought to do a public good: by reaching agreement and reinvigorating the federal response to COVID-19.

[1] Chief among these would have been coordinating the acquisition and distribution between the States, on a massive scale, of protective and testing equipment.

No. 4 – On Bureaucracy