The Constitutionality of the President’s Recent Executive Orders

Episode Notes

Transcript

Lawyer 2 Lawyer

The Constitutionality of the President’s Recent Executive Orders

08/22/2020

 

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Kimberly Wehle: Executive Orders for a long time have been just treated as okay even if they look like legislation not all of these end up in litigation. And so, I think, since George Washington historically, Executive Orders are something we’ve tolerated even though they aren’t expressly authorized in the constitution anywhere.

 

Michael W. McConnell: The real legal problem is the gradual and sometimes precipitous accretion of powers by presidents that have taken — and that’s taken place, not just under President Trump and not even necessarily worse under President Trump, but President Obama was a master at going around congress through Executive Orders and that’s the long-term problem.

 

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Intro: Welcome to the award-winning podcast, Lawyer 2 Lawyer with J. Craig Williams bringing you the latest legal news and observations with the leading experts in the legal profession. You’re listening to Legal Talk Network.

 

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1. Craig Williams: Welcome to Lawyer 2 Lawyer on the Legal Talk Network, I’m Craig Williams coming to you from Southern California. I write a legal blog named May it Please the Court, and have two books out titled, The Sled and How to Get Sued. Well, before we introduce today’s topic, we’d like to take this opportunity to thank our sponsors LEX Reception and Blue J Legal. LEX Reception is a close-knit team of virtual receptionists dedicated to professionalism, warmth, and 24/7 availability for law firms and attorneys. Blue J Legal’s AI-powered foresight platforms accurately predicts court outcomes and accelerate case research by using factors instead of keywords. You can learn more at bluejlegal.com. That’s blue, the letter J, legal.com, bluejlegal.com.

 

Since 2017, President Trump has issued 181 Executive Orders. Recently, the president has come under fire for issuing Executive Orders to provide economic relief to Americans during the pandemic by passing congress and its traditional power of the purse or power of appropriation. And according to the L.A. Times, after negotiations with congress fell through, President Trump signed four Executive Orders that included extending enhanced federal unemployment benefits, deferring some employee’s payroll taxes, continuing a temporary ban on evictions and reducing the burden of student loans.

 

So what are the details in these Executive Orders? Are they constitutional? And will the president face legal challenges? Today on Lawyer 2 Lawyer, we’re going to discuss the use of these Executive Orders by the president and validity of those Orders. To do that, we’ve got a great show for you today. Our first guest is Professor Kimberly Wehle from the University of Baltimore School of Law, where she teaches and writes in the areas of administrative law, federal courts and civil procedure. Professor Wehle is an on-air and off-air legal expert, analyst and commentator for CBS News. She’s also a contributor for BBC World News and BBC World News America. She’s an op-ed contributor for The Bulwark and an opinion contributor for The Hill. She’s also the author of How to Read the Constitution–and Why and What You Need to Know About Voting–and Why, both published by HarperCollins Publishers. Welcome to the show Professor Wehle.

 

Kimberly Wehle: Thank you for having me.

 

2021. Craig Williams: And our next guest is Professor Michael W. McConnell. He is the Director of the Constitutional Law Center at Stanford Law School, and a Senior Fellow at the Hoover Institution. He has two upcoming books, The President Who Would Not Be King: Executive Power Under the Constitution, which will be published by Princeton University Press in late 2020, this year, and Establishment of Religion: Neutrality, Accommodation, and Separation that would also be published by Cambridge University Press in 2021. Welcome to the show Professor McConnel.

 

Michael W. McConnell: Thank you.

 

1. Craig Williams: Well, Professor McConnel, let’s turn to you first and let’s talk about the history, origin and what are Executive Orders?

 

Michael W. McConnell: Well, the term Executive Order doesn’t appear in the constitution and is in a sense meaningless. That is presidents of certain powers, most of them are delegated by statute passed by congress, and then there are some powers that the president has simply under the constitution and he can exercise his powers, however he wishes. He can do it by picking up the phone and giving a directive, he can issue a memorandum, but the most formal way in which presidents do this is in writing published in the federal register and these are called Executive Orders. But again, calling it an executive order does not give it any additional power. The only question is whether the president is exercising a power that he gets from somewhere else.

 

1. Craig Williams: Well, Professor Wehle, where do these powers come from? Since it’s not in the constitution, what’s the basis for issuing an Executive Order?

 

(00:04:59)

 

Kimberly Wehle: Well, to the extent to which the president is implementing executive power. So, for example, making decisions regarding an administrative process within the executive branch. That’s like issuing a memorandum, saying this is how the executive branch is going to do X, Y, Z. And actually, some of these are called memoranda not necessarily Executive Orders, but sometimes by Executive Order, the president does something that looks more like legislation that is creating a new standard to govern private conduct in some way, and that goes under the constitution, that power goes to congress. So then the question becomes, is the president making laws pursuant to authority given to the executive branch by the United States Congress — I mean, every executive branch agency that issues Regulations for example, those Regulations are authorized by an Act of Congress.

 

What I tell my students is congress hands off the legislative baton to the executive branch, and the agencies basically fill in the blanks of congressional legislation. Now, sort of question number three would be, if the president is doing something that’s not executing laws within the boundaries of the Article II and is doing something more like legislating and congress hasn’t given the president that expressed power, that’s where we get into constitutionally murky terrain. But, Executive Orders for a longtime have been — just treated as okay even if they look like legislation, not all of these end up in litigation.And so, I think since George Washington, historically Executive Orders are something we’ve tolerated even though they aren’t expressly authorized in the constitution anywhere.

 

1. Craig Williams: Professor McConnel, has the court faced the question of whether — or the judicial branch rather face the question of whether these Executive Orders have validity based beyond just simply directing the executive branch how to behave?

 

Michael W. McConnell: Yes. One of the most famous separation of powers cases in American history involved an Executive Order issued by President Harry Truman during the Korean war, directing the secretary of commerce to take control over the steel industry. This was in order to stop an impending steel strike, and thus, prevent damage to the war effort and the Supreme Court held that President Truman could not do that. That Executive Order was unconstitutional in the sense that he lacked authority. The constitution itself does not give the president the power to seize private property and no statute passed by congress did so.

 

1. Craig Williams: Professor Wehle, I remember back — I’m going to give my age away here. Back in the 70s, when President Nixon issued Orders freezing prices to stop inflation, were those valid?

 

Kimberly Wehle: I’m going to actually let Professor McConnel answer that if he has that at his fingertips, I don’t remember those cases.

 

Michael W. McConnell: Actually, autobiographical note, when I was a law clerk, just out of law school, that very case was decided by my judge the day basically the day I reported for work. I think that was a very close case, that the court of appeals did hold that a version of this by President Carter instead, but essentially, the same idea. They upheld it, but it was really kind of a stretch because all congress had said was that the executive branch has the power to issue procurement orders that promote efficiency in the government service and so wage price controls were imposed under the — I think rather dubious theory that the government procurement would be more efficient if we had such a scheme.

 

1. Craig Williams: All right, it makes sense. Well, Professor Wehle, I’m curious what you think about the president making the statement that he has executive powers that people don’t even know about and that the Supreme Court has given him powers that are secret. Apparently there’s a gentleman by the name of John Yoo, who’s got some influence the Torture Memo writer, who has indicated that the president just ought to issue Orders and let it be challenged in the courts for a year or two or three and people have to put up with it. How can that even be possible?

 

Kimberly Wehle: There’s two questions here. One, is what is the source of the power, and that’s a great question for lawyers and judges. The other question is if the president exercises power that he does not possess or he infringes on another branch’s power or he acts in some way ultra vires, what are the consequences and I think, what we’ve seen in the last few years with the Trump administration in particular isn’t so much is something legal or not, but when the president exercises powers in a way that seems inconsistent with his authority is there a consequence?

 

(00:10:02)

 

Now, we saw with the Mueller investigation the critical issue was, we heard all along, “Oh well, the president can’t be prosecuted.” Well, that’s not in a law. Anywhere it’s not in the constitution, it’s not on a statute, it’s not in a Regulation, it’s not in a Supreme Court decision but if there are legal violations and there’s no consequence then the power of the president gets enhanced. The belt and suspenders of the office get enhanced, and as you mentioned, Professor Yoo, I believe is at Berkeley. I’ve debated him on podcasts before, I think back during the Bush administration, Bush too, his position was that in time of war — and in that moment, the idea was that there was a war on terror on terrorism, the president does have some measure of inherent powers that somehow supersede the express powers articulated in the constitution. I think under Donald Trump, that notion of, “okay, extraordinary powers for purposes of war time have just been moved beyond any meaningful boundary.” And i say that because the United States Congress hasn’t exercised its oversight authority through impeachment, by basically enforcing subpoenas for documents so that it can undergo oversight, it’s congress’ power is it’s up to congress to say emoluments are okay they haven’t taken action on that.

 

So at the end of the day, whether or not their inherent powers expressly in the constitution, it kind of comes down to what happens in the breach and right, now it’s been nothing, nothing meaningful. So, that’s very troubling. As far as these memos, I’ve heard about these memos, and a lot of people are worried about them. There was a major — one of the major networks did — I think Ted Koppel did a segment on it on Sunday, this past Sunday. But, again, whether those memos are legal or not, even if the president’s lawyers say they’re legal, is less of a concern in this moment than if the president uses them and there isn’t any consequence for potential illegality. And that’s what really concerns me, and I think it’s something a lot of Americans just don’t understand. They think this constitution is self-executing, that it’s a bulwark, that it’s this big dam, that’s going to hold back any tsunami of water that could eventually undermine democracy itself and unfortunately, I think we are, we’re on that precipice, where we’ve seen serious cracks in the foundations of our separation of powers.

 

1. Craig Williams: Professor McConnel does President Trump have the power to declare a national emergency? And if he does have that power, which I’m assuming he does, what is the limit on that power? Can he impose martial law? Can he suspend elections? Can he suspend the constitution? There’s been a lot of noise about that, is there any validity to any of that?

 

Michael W. McConnell: The president does have statutory authority to impose an emergency under the Emergencies Act, but that’s not unlimited power. The Emergencies Act is keyed to — I believe it’s 186 specific statutory authorities, many of them quite broad but not as broad as people fear or that you may be suggestin,g they don’t amount to martial law, they do not give the president the power to delay elections, they do give the president the power to reprogram funds from one use to another, and you know a number of other very important powers, foreign trade authority there are a lot of important powers there but they are certainly not unlimited.

 

I just say that, part of the problem here is that President Trump — I mean, I don’t want to be disrespectful, but he runs his mouth. He says things that he thinks are going to appeal and then doesn’t necessarily do anything about them. So he often makes grand eloquent pronouncements about what he’s going to do, but what he actually does is considerably more modest than that. It’s by no means clear that if you look at the actual Executive Orders that Trump has issued that they are any more unilateralist or aggressive than the ones that President Obama did or even President Bush before that. This is not a Trump problem, this is a long-standing problem of presidential accretion of power, a great deal of it driven by the fact that congress delegates enormous discretion to the executive branch and that seems to be not limited by the constitution or at least by judicial review.

 

1. Craig Williams: I’d love to get into these particular Executive Orders that we’ve got on the Slate for today, but before we move on to our next segment, we’re going to take a quick break to hear a message from our sponsors. We’ll be right back.

 

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1. Craig Williams: And welcome back to Lawyer 2 Lawyer. I’m Craig Williams and with us today is Professor Kimberly Wehle from the University of Baltimore School of Law and professor Michael W. McConnell, director of the Constitutional Law Center at Stanford Law School. Right before the break, we were about ready to get into the particulars of the four Executive Orders that were introduced recently.

 

So Professor McConnell, let’s turn back to you and talk about whether or not President Trump has the power to extend federal unemployment supplement at $400 a week and make the States pay a $100 of it.

 

Michael W. McConnell: Well, no, he doesn’t. He does have the power to declare an emergency and to reprogram funds and that might — we haven’t seen where that might come from. There’s been no budget estimate or no specifics on this. It’s possible that he might find some unspent funds for example from the CARES Act that he could use for this purpose. But it would require a complete creation of a new unemployment compensation system, because he couldn’t do it through the current one. That’s limited to statutory benefits and under the emergency authority here, States have to pick up 25% of the tab and he has no authority to require them to do that. So number of States have already said that they’re not going to go along with this and there’s nothing he can do about that.

 

1. Craig Williams: Will this Order even hold water then? I mean, the system

appears to be so many parts of it that don’t work?

 

Michael W. McConnell: I’m very skeptical that anyone will get any money under this Order.

 

1. Craig Williams: Well, Professor Wehle, let’s talk about Social Security, the payroll, tax holiday through the end of the year for Americans earning less than a $100,000 is this a back door attempt to gut Social Security?

 

Kimberly Wehle: Well, that’s another question as far as what the idea behind it. I think the immediate effects is supposed to be to make — have more money in people’s bank accounts. I mean, the problem sort of from a political and pragmatic standpoint with all of these Executive Orders is none of them are actually going to make an impact immediately, and as Professor McConnell indicated, I think a lot of what’s happening in the executive branches really falls at the feet of congress, and in this moment the fact that the HEROES Act has been languishing and that would actually put dollars into people’s pockets — I mean, what you mentioned is holding off on the payroll tax, apparel tax holiday that doesn’t mean that it wouldn’t ultimately have to be paid it just postpones the timing of it and then of course, those are monies that go as you mentioned into Social Security, so it’s hard to see how either starving it or holding off and having to pay it later is really helpful. I think, this was probably more of a political maneuver for the president in light of what’s happening with the pandemic and the economy rather than an actual policy measure that is going to make an impact and address what really should be done through the united states congress.

 

1. Craig Williams: Well, Professor McConnell, we have extended student loan relief through the end of the year, that one looks like it might squeak through.

 

Michael W. McConnell: So the Department of Education has statutory authority to defer payment of principal and interest on student loans in this circumstances of the statutory term is economic hardship. And President Trump has directed by memorandum — I forget now whether this was an Executive Order or a memorandum, it doesn’t really matter. Directed the secretary to interpret economic hardship to include the entire coronavirus crisis which is perhaps not unreasonable. That’s really not presidential an exercise a presidential power in the classic sense, this is statutory power vested in the Department of Education and President Trump is simply instructing her to do that.

 

I think, politically, the purpose of that is so that he can take the credit and Trump is no different from any other president in this respect. One of the principal uses of Executive Orders is in fact for the president to take credit for something that is actually going to be done by somebody else in the bureaucracy.

 

1. Craig Williams: Well, that I guess, puts a good segue into the last Executive Order on the Slate the call for the federal agency leaders to try and find funds to help curb evictions.

 

(00:20:00)

 

A lot of noise was made that it was going to stop evictions. Professor Wehle, is that going to happen?

 

Kimberly Wehle: No. This Executive Order does not do that, it basically sends the agency personnel, the secretary and others into existing laws to try to find ways of helping people against evictions, protect against evictions, find pots of money that might help them. So, all this really is a directive to his staff to sort of think about the problem more. Again, I think it’s a political maneuver and I don’t disagree this is not — this is something that other presidents have done. The problem that I see is that we have 170,000 deaths and millions and millions of people evicted and one in three children of color who are hungry right now, I mean, there’s a lot of people that are really suffering. And so, this kind of window dressing unfortunately gets perceived through the press and on social media, et cetera. It’s something that’s really meaningful and it’s not, at least in this moment it’s not, this is again something that requires some kind of legislative action.

 

1. Craig Williams: Well, one of the other Orders that apparently has been very meaningful or at least within the department itself or the postal service, we’ve seen mailboxes locked, disappearing stories about mail sorting machines going away, Professor McConnell, what power does the president have to affect the postal service and what’s the range of his powers there? I mean, I’ve seen citations to people that interfere with the delivery of the mail or potentially committing a crime.

 

Michael W. McConnell: So this is a very puzzling thing. I’ve been reading about this just in the last couple of days, but I’m no expert on this. I don’t really know what’s going on, but apparently, because of the decline in mail over the last number of years, there’s been a long term we’re in the midst of a long-term reduction in numbers of mailboxes and so forth. So a lot of the stuff has been going on for quite some time and really has nothing to do with the election and now the postmaster general just announced that he’s going to put a hold on any of these cost-saving measures until after the election just to make sure that people don’t get scared.

 

Now, the most puzzling thing about this is why the president chose to make statements making it sound as if this is more nefarious than it apparently was, that why he wanted to connect these actions which are as I say or at least as I read and again, I don’t know this firsthand. But as I read long-term cost saving measures why he wanted to in a sense take credit for this and as part of his campaign against mail-in ballots is a bit of a mystery. It reminds me of Saddam Hussein claiming to have WMDs when he didn’t, why does anybody want to claim something which is discreditable when it apparently — apparently there isn’t any there, there.

 

1. Craig Williams: Right. Professor Wehle, any thoughts about the postal service issues?

 

Kimberly Wehle: Yeah. I mean, I see it a bit differently and that I think there is there there, because it wasn’t just sort of taking sorting machines out of postal facilities and removing mailboxes which at least anecdotally, people within the postal service for decades have said they’ve never seen anything like that it’s also a major reorganization of the top tier people at the post office, 23 important senior positions were moved around postal service workers, their hours were shortened, the overtime was banned, and this is again something that has not been — it’s anticipated, it’s been happening for many years under many presidents I am part because the postal service is a creature of congress. It’s not a private entity that is able to compete and this president, President Trump has said months ago — I mean, I did a piece for The Hill on this back in April anticipating this postal service crisis because he has said he didn’t want to fund it. He wanted it to be more competitive, but they have statutory obligations of pre-funding not just pension, but medical benefits for all of its employees that make it impossible and of course Mr. DeJoy was a major fundraiser for the president and also some people have — believe is ethically conflicted and this is all coming in the midst again of a pandemic where we’re seeing states have to massively, massively move towards mail and voting.

 

So, even if there’s not a nefarious subjective intent, good policy would be to enhance the postal service in light of the pandemic and the critical needs of Americans to be able to vote without putting their lives at risk, and again, the HEROES Act has money for the postal service that has just been sitting and the president vowed to veto that back in the spring, I think recently, he’s indicated that if there was a carve out for the postal service, I think with all of this political pressure he would maybe sign just that part when there’s still problems from the republican side of the aisle with respect to other parts of the HEROES Act.

 

(00:25:10)

 

But, I think what’s happening the postal service given that it’s in the constitution itself the statute makes it very clear that these kinds of things have to go through a commission but the changes are a number of lawsuits pending right now from States that challenge these actions as not having gone through the administrative process that’s necessary including a notice-and-comment period. I think the implications again for the election which is at the core of American democracy are quite serious.

 

1. Craig Williams: Well, Professor McConnell, there’s been a lot of concern in attacks on these Executive Orders, are there any administrator procedure act requirements to put these things into effect? Is there opportunity notice to be — for hearing or these just something that President Trump or any president for that matter just simply gets the issue on his own without consulting anybody?

 

Michael W. McConnell: I’m glad you asked that because that’s actually one of the more important legal details here. Presidential announcements whether they are styled, Executive Orders, proclamations is actually an older term that statutes frequently use or memoranda do not have to go through the Administrative Procedure Act that’s because the Administrative Procedure Act only applies to “agencies” and the president is not an agency and that has enormous practical implications. But we shouldn’t exaggerate what those are because a lot of Executive Orders including a lot of Mr. Trump’s, consist of directing the agencies to take action and when they take action they have to go through whatever the Administrative Procedure Act requires which includes in most circumstances notice-and-comment rule making.

 

So when congress has vested authority in the agencies including the cabinet departments, then it goes through these administrative safeguards, but when power is exercised by the president himself, they do not.

 

1. Craig Williams: Well it looks like we’ve just about reached the end of our program. So, at this point, I’d like to take the opportunity to invite our guests to share their final thoughts and Professor Wehle, let’s throw it over to you first.

 

Kimberly Wehle: Well, I think this is a great conversation. It’s a bit technical and I think, what’s important for people to understand is when a question arises as to whether something’s legal or not, the first step is to ask where the source of the power is between one of the three branches of government and then ask, if that power is abused, whether the other two branches are actually taking action to hold branch three accountable. And this gets quite murky, but when we just apply our common sense to it, I mean, what I explained to my students is, imagine there’s a law that says you have to drive 35 miles an hour but no one ever gets ticketed. So, if you go 50, the law itself is not self-executing, it doesn’t matter what the law says. But if there’s a speed camera behind the bush, people will slow down.

 

So, the question of Executive Orders isn’t entirely just what does the constitution allow but for Trump and his predecessors and future presidents if that power is abused what are the consequences? Because, without consequences, then that is a new tool in the presidential toolbox and as Professor McConnell indicated that has just gotten larger and larger over the past century.

 

1. Craig Williams: Great. Thank you Professor Wehle. And Professor McConnell, your final thoughts.

 

Michael W. McConnell: Well, I think that’s exactly right, although, in the case of — I mean, a lot of presidents but especially President Trump, we need to not confuse the hype what is said about what the president is going to do with what he actually does and so, a lot of times — I mean, in some recent incident and with going around congress since congress is notable to come together on an extension of the of the CARES Act, President Trump made announcements as if he’s going to solve the problem through Executive Orders. But when you read the Executive Orders themselves, they’re going to do very little and that’s a political problem in that reality and hype are two different things. It’s not exactly a legal problem, the real legal problem is the gradual and sometimes precipitous accretion of powers by presidents that have taken — and that’s taken place not just under President Trump and not even necessarily worse under President Trump, but President Obama was a master at going around congress through Executive Orders and that’s the long-term problem.

 

1. Craig Williams: Thank you very much. Well, I’d like to take the opportunity to thank Professor Wehle and Professor McConnell for joining us today. It was a pleasure having both of you on the show.

 

Kimberly Wehle: Thank you for having me. It’s been great and if anyone’s interested in following my work I tweet at Kim Wehle, W-E-H-L-E and I post a lot of my work on my website which is just kimwehle.com, but it’s been a great pleasure to be here today, thank you again for having me.

 

(00:30:08)

 

1. Craig Williams: Thank you and thank you Professor McConnell.

 

Michael W. McConnell: Likewise, and if anyone’s interested in following me, no, I do not tweet.

 

1. Craig Williams: Well, we can follow you at Stanford, and thank you very much for that. Well, for our listeners, if you like what you heard today, please rate us at Apple Podcasts your favorite podcasting app. You can also visit us at legaltalknetwork.com where you can sign up for our newsletter. I’m Craig Williams, thanks for listening. Join us next time for another great legal topic. When you want legal think Lawyer 2 Lawyer.

 

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