Trump leans into executive action, looking for 2020 boost

President Trump is leaning hard on an expanded view of executive power in the lead-up to the 2020 election, using a flurry of executive orders and presidential memos to implement parts of his agenda before November.

The effort is intended to pile up Trump’s list of accomplishments as he seeks reelection against the backdrop of the coronavirus pandemic and a fractured economy.

The president in recent weeks has taken executive action on drug pricing and immigration and used an executive order to crack down on vandalism of monuments. He mused this week that he could bust through stalled negotiations on coronavirus relief with unilateral action to suspend evictions and the payroll tax and reinstate expanded federal unemployment benefits.

In the last month, Trump issued an executive order to formalize penalties for protesters targeting controversial statues, released a memo to exclude undocumented immigrants from apportionment counts in the census, signed a series of orders aimed at lowering drug prices and put out an order to curb federal agencies from hiring foreign workers.

Officials familiar with the plans said Trump is expected to roll out additional immigration orders, including one that further restricts the use of H-1B visas to hire foreign workers.

The president has been emboldened by a Supreme Court ruling in June that rejected his attempt to rescind the Deferred Action for Childhood Arrivals (DACA) program — implemented by executive order under President Obama — but upheld his right to end the program if done properly. 

Trump has argued that the ruling gives him expansive powers to implement health care or immigration policy, after taking notice of a reading of the ruling by conservative legal scholar John Yoo, who is widely known for writing memos justifying so-called enhanced interrogation techniques during the George W. Bush administration. 

Yoo, who met with Trump at the White House last week, told The Hill in an interview that he believes the DACA ruling gives Trump the power to enact policy across a broad array of areas by underenforcing laws and “being passive.” He declined to discuss the substance of his conversations with Trump. 

Other constitutional law experts believe Yoo’s reading of the Supreme Court’s ruling to be flawed, arguing the opinion from Chief Justice John Roberts does not offer a defense of the idea a president can choose broadly what laws to enforce and that Yoo’s reading ignores the limits on presidential power imposed by the Framers. 

While modern-day presidents have increasingly relied on executive orders to accomplish their agendas, including Obama, legal experts say that Trump often overstates the authority he has in taking unilateral actions. 

“Generally speaking, this president seems to have a wildly inaccurate and overinflated view of the power of executive orders. He seems to treat them or at least talk about them as if they are magic wands,” said Elie Honig, a CNN legal analyst and former federal prosecutor. 

“Executive orders can be powerful tools, but they’re limited,” Honig added, noting that executive orders only apply to the executive branch of the federal government. 

In some cases, Trump has promised dramatic action and then issued an executive order with little impact. Honig pointed to Trump’s executive order targeting social media companies, which he described as “very bureaucratic” and simply involved Trump ordering the federal government to undertake reviews.

Trump has also issued a number of executive orders that have faced legal challenges, including his controversial travel ban early on in the administration and, more recently, the action aiming to block undocumented immigrants from being counted in the U.S. census.

“He’s the kind of president who has gotten used to acting unilaterally, pushing the boundaries, pretending boundaries don’t exist,” said Robert Tsai, a constitutional law expert and professor at American University. 

In the coronavirus relief talks, Trump has been urged to take action by a pair of conservative economists, who say he should declare a national emergency to take strong actions.

It’s unclear if Trump even has the power to suspend the payroll tax. Daniel Hemel, a professor at University of Chicago Law School, said that the Treasury secretary can delay deadlines for payments of payroll taxes but cannot order employers to increase their employees’ take-home pay by the amount that would have been withheld.   

Yoo, however, argued that Trump could lean on his reading of the DACA ruling to underenforce tax law and stop payroll tax collection.

“Take the Supreme Court opinion and do a search-replace from immigration to taxes. What’s the difference?” Yoo, who recently penned a book on Trump’s use of executive power called “Defender in Chief,” told The Hill. 

The timing of the executive actions coincides with a critical stretch for Trump in his reelection bid. He is trailing presumptive Democratic nominee Joe Biden in key battleground states and nationally, and strategists say Trump’s path to victory is largely dependent on the state of the pandemic and the economy as Election Day nears.

The White House has denied that politics factored into Trump’s burst of executive action.

“No, but the president moves at a very rapid pace, and he wants to get as much of his agenda accomplished this term and going into next term,” press secretary Kayleigh McEnany told reporters on Tuesday. “This president has done a lot already, but he will work on COVID and, alongside that, many other issues, as he routinely does.”

The executive orders have fulfilled key administration priorities, including lowering drug pricing and cracking down on immigration to satisfy parts of the president’s base. And Trump’s consideration of using executive power to aid Americans struggling to make ends meet comes at a time when a majority disapproves of his handling of the pandemic.

While the threat of presidential action could be a useful negotiating tool, some Republicans doubted the political benefits of jamming executive orders into the final months of Trump’s first term.

“If there were executive orders that had obvious political benefits, he probably would’ve issued them months ago,” said Alex Conant, a GOP strategist who has worked on multiple Republican campaigns. “Things like what he was talking about on health care. Why wait until the final months of his first term to issue a health care overhaul?”