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

Free Speech and Social Media

Originally posted on May 30, 2020

There have been a pair of difficult issues in the news this week that relate to some of the principles in this essay series. I’ll start with the easier one, speech and social media. Three points to make:

1. There is a principled case for limiting the ability of social media firms to interfere with users’ posts. This executive order (second link below) partially makes that case before it reveals a more likely intent to flood Twitter with libel lawsuits – which does not encourage free speech.

Put simply, however, the principled argument is this: large social media firms, when facing anti-trust complaints, have argued – persuasively – that they need to function as monopolies, because the network effects produced by virtually everyone using their platform are necessary to provide their services as forums in which people can connect and exchange views. Facebook, in other words, would be less valuable to the public were it instead two separate firms, each of which had a smaller number of users. (After all, in such a world, the New Model Federalist would have even fewer readers than the handful I’m grateful to have now.)

Fair enough. But if the value of the service – and the reason it ought not to be subject to antitrust action – is that it functions as a public forum, then it ought not to impose restrictions on speech exceeding those established by law; and in the United States, the First Amendment ensures that public restrictions on free expression are fewer and narrower than those imposed by social media firms at present. Furthermore, the few restrictions that must exist in law can justly be determined only by an elected legislature that represents and is accountable to the public. The managers of social media firms, however noble they profess their intent to be, neither represent nor are accountable to the public.

However,

2. This order, and the manner in which it came about, is marred by petty vindictiveness and malevolence. This can be seen plainly in its seventh full paragraph, beginning with “Twitter.” No republican government, elected to serve the whole country and all within it, ought to wield its power spitefully against specific individuals or firms. Such conduct, at best, debases the dignity of government; at worst, it becomes a means of repression. It is undoubtedly poor leadership.

And,

3. Vital decisions involving the extent and limitations of free speech ought not to be made by the bureaucracy, as this executive order would have it. For the same reason abovementioned – that the legislature, and only the legislature, represents the people and is vested by them with the power of making laws – this matter ought to be resolved by Congress.

These points are simplified for brevity – the reality is complicated, and there is plenty of scope for disagreement.

No. 1 – On Fundamental Liberties

No. 4 – On Bureaucracy

No. 7 – On Economic Inequality

https://www.reuters.com/…/trumps-executive-order-targets-po…

https://www.whitehouse.gov/…/executive-order-preventing-on…/