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After negotiations between Democrats and Republicans broke down, President Trump signed an executive order that provides $400 in weekly unemployment aid and defers payroll tax for those earning under $100k.

Since Congress is supposed to control the power of the purse, the EO appears to simply reshuffle money left over from the $2.2 trillion dollar CARES Act. In Trump v. Sierra Club, the Ninth Circuit found that Trump circumvented the power of the purse by transferring funds to build the wall without Congressional approval, but the Supreme Court has so far allowed the construction to continue as of July 31.

The remaining 25% must be paid for by the states.

  1. Is this Legal for a President to defer payroll taxes and pay for a public program by an Executive Order without the consent of Congress?

  2. If it is challenged in court who would have standing to do so?

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    This may be better suited for Law, as they are more specifically geared to answer "what the law is" type of questions. Other than that, I also read some opinions that said that even if it is legal it would still be extremely difficult for states to take any advantage of it, as there are limited legal avenues for them to receive and disperse federal funds through, none of which really covers this in any clear way, resulting in a lot of new bureaucratic infrastructure being needed. A direct act of Congress would maybe take weeks, and this would take longer still.
    – zibadawa timmy
    Aug 8, 2020 at 23:09
  • @zibadawatimmy Can you expand on this point? Are you saying that an act of Congress would be needed to disperse the funds? I'm not familiar with the mechanics of how this would work.
    – SurpriseDog
    Aug 8, 2020 at 23:31
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    I'm not sure anyone's exactly sure how this would be done, or if it even can be done. The Social Security Act and new acts of Congress are the only way that states can disperse (federal) benefits of any sort right now. The Employment and Training Administration, which deals with unemployment benefits, doesn't have the authority to dole out benefits solely by executive order.
    – zibadawa timmy
    Aug 9, 2020 at 0:21
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    So this would have to be implemented at the state level, many of which already have horribly outdated unemployment benefits systems, and none of which are the same. Except now they'd probably have to build them from the ground up, since this couldn't be unemployment insurance in its usual sense because there's no act of congress allowing that. And most states (perhaps all) are currently running severe budget shortfalls from the pandemic, and states actually have to care about balancing their budgets (the feds not so much). I do find your questions very interesting and good, incidentally.
    – zibadawa timmy
    Aug 9, 2020 at 0:26
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    @zibadawatimmy, Trump's calling this "disaster relief" under the Stafford Act. See my answer for an analysis of if it actually applies.
    – Mark
    Aug 10, 2020 at 8:54

2 Answers 2

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There are a number of inaccuracies in the reporting.

First, what Trump signed was a series of presidential memorandums, not executive orders. The practical difference between the two doesn't really matter in this case, though.

Second, what you describe is actually two different memorandums.

The first, deferring the payment of payroll taxes, is probably within his powers (Trump cites 26 USC 7508A, which gives the Secretary of the Treasury the ability to defer tax payments in the event of a disaster). But it's also highly counterproductive: the taxes still need to be paid. On December 31, when the deferment expires, the tax bill comes due. For the typical person, this bill equals about three weeks' pay -- and it's now being paid in a single lump rather than being spread out over four months.

The second, supplemental unemployment insurance payments, is questionable at best. He's directing that FEMA disaster-relief funds be used to provide unemployment payments, and ordering the states to match that money 1 for 3 out of unspent CARES funds. This is almost certainly not within his powers. He's citing 42 USC 5174(e)(2) as the source of authority, but "other necessary expenses or serious needs" is intended to cover specific needs, not no-questions-asked payments. The 1:3 match ratio is covered by 42 USC 5174(g)(2) requiring states to provide 25% of the money distributed under 42 USC 5174(e), but it does not say where the states need to get that money from.

Like the first, this program, even if legal, is likely to be counterproductive. Trump is drawing down FEMA's funds just as a very active Atlantic hurricane season is picking up steam.

The Secretaries of Labor, Treasury, Homeland Security, and the administrator of FEMA all have standing to challenge this, as they're the ones the memorandums are addressed to -- but it's unlikely they'll do so. Congress as a whole has standing, since this may be infringing on their powers under the Constitution. The individual houses of Congress may have standing, as may individual members, but this is unsettled.

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    Presumably the Secretaries of Labour, Treasury and Homeland Security and the FEMA Administrator are all Trump appointees?
    – Jontia
    Aug 10, 2020 at 9:09
  • It's actually a mix of 4 Memorandums and Executive Orders that were put out recently, but the media refers to them all as Executive Orders collectively because the terms are used interchangeably.
    – SurpriseDog
    Aug 10, 2020 at 13:01
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I hate being the one always pointing things like this out, but...

This EO is not meant to actually provide any actual aid. As best I can tell, the GOP stalled the discussions in Congress specifically so that Trump could write this executive order, because it satisfies all their interests. Trump can give the appearance of caring about the issue and providing aid to the public, in the full understanding that the EO is completely unimplementable and probably unconstitutional.

  • Trump gets what he wants: positive press
  • GOP Congresspeople get what they want: an end to the public aid payouts
  • Both effectively avoid blame for the inevitable failure of distributions, since the blame will fall on whomever challenges the EO in court

It's cynical and Machiavellian, but pretty much par for the course these days...

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    the EO is completely unimplementable and probably unconstitutional. Can you back this up with evidence?
    – SurpriseDog
    Aug 9, 2020 at 2:15
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    @SurpriseDog: Congress has the power of the purse; the president has no power to distribute funds that Congress has not allocated, and there is no bureaucratic mechanism the president has access to which could distribute the funds in any case. Unless Trump is using his personal money, the idea is a non-starter. But don't take my word for it; just wait a little bit and watch it all fizzle. That should be evidence enough.
    – Ted Wrigley
    Aug 9, 2020 at 3:56
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    It does, until it doesn't: courthousenews.com/… - This is why I asked the question. I don't know if these cases are similar enough.
    – SurpriseDog
    Aug 9, 2020 at 5:21
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    @SurpriseDog: in that case, Trump diverted already-allocated funds. In this case, the funds have not been allocated. I don't really agree with the ruling in the first case, mind you, but this is a different kettle of fish.
    – Ted Wrigley
    Aug 9, 2020 at 5:52
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    While this is a highly relevant comment, it would become a good answer if it elaborated on the actual answer part "the EO is completely unimplementable and probably unconstitutional" - a link to and quote from one article supporting that position should do the trick.
    – Peter
    Aug 9, 2020 at 14:54

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