President Donald Trump fumed about fellow party member and Sen. Ben Sasse (R-Neb.) via Twitter late Monday morning.
“RINO Ben Sasse, who needed my support and endorsement in order to get the Republican nomination for Senate from the GREAT State of Nebraska, has, now that he’s got it (Thank you President T), gone rogue, again,” the 45th president tweeted–invoking an age-old acronym that suggests insufficient conservative purity. “This foolishness plays right into the hands of the Radical Left Dems!”
Trump was referring to an over-the-weekend statement released by Sasse’s office which took Trump to task for his controversial novel coronavirus (COVID-19) actions on unemployment insurance, student loans, evictions, and the payroll tax.
Early Saturday evening, Trump signed three memoranda and one executive order which directed the federal government to: (1) suspend collection of the payroll tax–at employers’ discretion–until the end of the year; (2) asked his subordinates to find ways to avoid evictions in federally-managed properties; (3) unilaterally ceased payments and interest on all student loan debt; and (4) which created a new, temporary, federal program under the aegis of the Federal Emergency Management Agency (FEMA) that would allow unemployment claimants to receive an additional $300 per week for roughly five weeks on top of meager state unemployment benefits–provided that their states also chip in an additional $100 per week.
Trump’s actions were widely criticized by Democrats as insufficient stopgap measures, but some on the left and the right assailed the president for attempting to govern by decree. Trump explicitly bypassed Congress after talks between Democratic Party leaders and the White House broke down without a solution late last week.
Sasse responded by attacking Trump as essentially Barack Obama 2.0.
“The pen-and-phone theory of executive lawmaking is unconstitutional slop,” the senator’s Saturday statement read. “President Obama did not have the power to unilaterally rewrite immigration law with DACA, and President Trump does not have the power to unilaterally rewrite the payroll tax law. Under the Constitution, that power belongs to the American people acting through their members of Congress.”
The “pen-and-phone” dig is a clear reference to Obama.
“I’ve got a pen to take executive actions where Congress won’t, and I’ve got a telephone to rally folks around the country on this mission,” then-President Obama said in 2014, outraging the right.
Sasse was not the first or the only person to compare Trump’s use of executive authority viz. payroll tax collection to Obama’s own authority implementing the Deferred Action for Childhood Arrivals (DACA) program.
“The payroll tax [executive order] is basically DACA for taxes,” noted legal journalist Brad Heath just after Trump’s press conference over the weekend, “though it does cite a statute on extending deadlines.”
Neither Obama’s DACA action for Dreamers nor Trump’s action on the payroll tax are illegal or unconstitutional. The executive branch has the absolute authority to enforce the laws of the United States–or, rather, de-prioritize, de-emphasize and defer their enforcement. In both instances, each president directed the relevant authorities in charge of administrative agencies to defer enforcing the relevant portions of the federal code.
Notably, the Wall Street Journal‘s right-wing editorial page also took Trump to task for his Obama-esque executive action.
The good news is that President Trump on Saturday escaped the trillion-dollar terms of surrender demanded by House Speaker Nancy Pelosi. The bad news is that he followed the Barack Obama method with executive orders, one of which stretches the law in a way that a future progressive President will surely cite as a precedent.
The President’s resort to executive orders is a separate issue, and it’s worth considering all four in turn. The President’s deferral of payroll taxes for Americans earning less than $104,000 a year through Dec. 31 poses no legal issues. Congress has already deferred the employer portion, and under the law Mr. Trump can defer the 6.2% employee share.
WSJ was not alone on the right in this critique. The National Review, a conservative publication, published a piece on Sunday that said Trump had ushered in the “Return of Pen-and-Phone Constitutionalism.”
The White House, for their part, pushed back on the Obama comparison on Monday afternoon.
White House Press Secretary Kayleigh McEnany noted that Obama repeatedly said he lacked executive authority for the DACA program–before he decided he did, in fact, have such executive authority. Whereas Trump has maintained he is not hamstrung by Congress all along.
“They’re a lot different,” she said.
Sasse previously criticized the president for his photo op with the Bible.
[image via Chip Somodevilla/Getty Images]
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