Eight years ago, when President Barack Obama announced that he would establish the Deferred Action for Childhood Arrivals or DACA program via executive action, Republicans were rightly furious.
They denounced it as an overly broad, unconstitutional executive overreach – though that argument has had mixed results in the federal courts. Regardless of its legality, it absolutely was the wrong way to go about enacting the policy. Even if it were legal for Obama to implement the DACA program on his own through executive action, both he and the people protected by it would have been better served had it been approved legislatively.
Unfortunately, once Obama acted unilaterally on the issue, it instantly created a disincentive for Congress to act, allowing them to continue to avoid a controversial issue that they’d been ignoring for years. That meant that the next president could undo the program, and indeed, Donald Trump eventually tried to do exactly that. Though Trump’s attempt to undo DACA was narrowly blocked by the Supreme Court on technical grounds, he or a future president could eliminate the policy if they did it correctly. That was an issue not only with the DACA program, but also with the Paris agreement on climate change and the Iran nuclear deal. Republicans correctly chafed at the lack of congressional approval or involvement in all of those actions and agreements, noting that all three proposals ought to have been steered through the legislative branch.
Now that there’s a Republican back in the White House, though, many of them seem to have conveniently forgotten their previous opposition to executive overreach.
That didn’t just begin out of the blue last weekend, as Trump signed a flurry of executive orders to attempt to sidestep congressional negotiations on another economic aid package. It was readily evident back in 2017, when he signed an executive order meant to jump-start construction of his proposed U.S.-Mexico border wall. He claimed that was justifiable as an emergency, but that’s the case only if Congress’ refusal to do what the president wants constitutes an emergency. If it does, then that means that any future president, be they from the right or the left, can justify implementing almost any policy by executive fiat. That may be a heck of a lot easier than navigating legislation through Congress, but it isn’t the way to enact permanent, lasting change. Whether it’s DACA or, on the flip side of the immigration issue, building the border wall, Obama and Trump alike should not have done it at all if Congress didn’t want it done. Congress does represent the people, after all, and its job is to serve as a check on the executive branch.
With his latest executive orders, Trump is similarly claiming that they are necessary as emergencies due to the ongoing pandemic. For a few of them, that’s reasonable, especially extending the moratorium on evictions and continuing student loan relief. These are directly related to the crisis and enjoy more bipartisan support. These two orders are also generally of a more limited scope: The eviction order does not attempt to halt all evictions nationwide for any reason. That makes them not only more politically palatable, but also likely on more solid legal ground than the other two executive orders.
The other orders cover areas more directly related to fiscal aid, offering a $400-per-week enhanced unemployment benefit and deferring payroll taxes to the end of the year, which may be largely symbolic since employers have to choose to take advantage of the program.
Trump first proposed a payroll tax cut as part of the current negotiations with Congress over an aid bill, and it went absolutely nowhere: it didn’t even get any traction with his fellow Republicans.
That shows that in this case, Trump is just using an emergency as cover to get what he wants.
While more economic stimulus is certainly necessary, Congress made it pretty clear they didn’t want to cut payroll taxes – just as they made it clear they didn’t want to protect unauthorized immigrants or build a border wall.
Ideally, all members of Congress would denounce executive overreach, regardless of whether their party controlled the White House or if they supported the policy being enacted. Process matters, and good policies ought to be passed by Congress, not implemented (or undone) at the stroke of a pen.
Our Founding Fathers envisioned Congress as the most powerful branch of government; it would be nice if more members of Congress put party politics aside and remembered that for a change.
Jim Fossel, a conservative activist from Gardiner, worked for Sen. Susan Collins.
He can be contacted at: jwfossel@gmail.com
Twitter: @jimfossel
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