Shall we have a king?
(Editor’s Note: This piece first appeared in the Washington Examiner on August 20, 2020.)
In January 1787, America’s top diplomat, John Jay, asked George Washington, its leading citizen, “Shall we have a King?” Neither Jay nor Washington were optimistic about the fate of the American republic under the Articles of Confederation, given its decentralized structure and feeble powers. After winning the war for independence against Great Britain, the United States appeared incapable of governing themselves as one people as the new nation lurched from one crisis to the next. Jay observed to Washington, “It is not easy for those to think and feel as Sovereigns who have always been accustomed to think and feel as Subjects.”
Yet, the nation would eventually figure out how to make republican self-government work. They did so by replacing the ineffective Articles of Confederation with a new Constitution that simultaneously avoided anarchy and monarchy by empowering the central government in some areas and limiting it in others.
The innovative separation-of-powers concept underpinned this radical new approach to government. The Constitution divided the government’s power into three separate branches (the legislative, executive, and judiciary), each of which corresponded to a specific set of functions. This arrangement ensured that no one branch of government would be capable of amassing sufficient power to tear up the Constitution and rule the country.
Jay summed up the straightforward solution to America's problems to Washington: “Let Congress legislate, lets others execute, let others judge.” James Madison noted that the separation of powers was vital to securing freedom and liberty and that as long as the people’s elected representatives preserved it, “We have no danger to apprehend.”
Notwithstanding its centrality to the success of the American regime, a recent altercation between President Trump and Sen. Ben Sasse, a Republican from Nebraska, highlights the extent to which support for the Constitution’s separation-of-powers framework has begun to wane.
The altercation started when Sasse called a series of Trump’s executive actions “unconstitutional slop.” At issue was the president’s decision to act without Congress’s permission to defer payroll taxes, provide enhanced benefits for those out of work, offer assistance to renters and homeowners, and extend relief for millions of people with student loans. In taking these actions unilaterally, Sasse claimed that Trump violated Article I, section 1 of the Constitution, which stipulates, "All legislative Powers herein granted shall be vested in a Congress of the United States."
By combining the power to make law, which is inherently legislative in nature, with the ability to execute the law, which is intrinsically executive in nature, Trump assumed powers once wielded by kings. However, as Sasse tersely noted, “America doesn’t have kings.”
Surprisingly few people echoed Sasse’s indictment of Trump’s actions. In contrast, most commentators rationalized those actions as both lawful and constitutional. For example, a law professor at the University of Chicago claimed that the president acted wholly within the law when he deferred payroll taxes and extended unemployment assistance for certain people. The Wall Street Journal editorial board, a self-described defender of the Constitution, cast Trump’s actions as both lawful and constitutional despite expressing mild concern about the impact those actions may have on the Constitution over time. Yuval Levin and Adam White, both dedicated constitutionalists with the American Enterprise Institute, described Trump’s actions as failings of "constitutional virtue” that were nonetheless lawful.
Such rationalizations highlight a worrisome trend across the political spectrum to excuse blatant violations of the Constitution’s core tenets. While this phenomenon predates the Trump presidency, the egregious nature of its manifestation in this instance puts the trend in stark relief. A review of the relevant statutes reveals that descriptions of Trump’s actions as lawful are wrong. By extension, it affirms Sasse’s critique of those actions as unconstitutional.
In March, Trump declared that the COVID-19 pandemic constituted a national emergency. Congress subsequently approved four rounds of relief, passing legislation that authorized the president to provide direct assistance to millions of people. When Congress failed to pass a fifth relief package, Trump announced that he was acting unilaterally to provide assistance without Congress’s approval. To justify his decision, Trump cited powers that Congress delegated to the president in the Robert T. Stafford Disaster Relief and Emergency Assistance Act.
Trump’s directives to defer payroll taxes and provide unemployment assistance without congressional authorization are not sanctioned by the law.
First, Trump directed the secretary of the Treasury to postpone payroll taxes for employees who earn less than $4,000 every two weeks. In his directive, Trump cited 26 U.S.C. 7508A as empowering the Treasury secretary to postpone taxes for individuals affected by a “federally declared disaster.” However, the statute defines “federally declared disaster” as “any disaster subsequently determined by the President … to warrant assistance by the Federal Government” under the Stafford Act. Consequently, any assistance provided by the federal government must comply with the rules and regulations stipulated in that law. By limiting the payroll tax deferral to people below a certain income threshold, Trump’s directive violates sections 5151(a) and 5151(b) of the Stafford Act prohibiting discrimination based on economic status when providing assistance to Americans in federally declared disasters.
Nor does the Stafford Act sanction Trump’s directive to extend unemployment assistance to millions of the unemployed. The law admittedly authorizes the president to provide “financial assistance” and “direct services” to “individuals and households … who, as a direct result of a major disaster, have necessary expenses and serious needs.” But it defines a “major disaster” as “any natural catastrophe (including any hurricane, tornado, storm, high water, winddriven water, tidal wave, tsunami, earthquake, volcanic eruption, landslide, mudslide, snowstorm, or drought) or, regardless of cause, any fire, flood, or explosion, in any part of the United States, which in the determination of the President causes damage of sufficient severity and magnitude to warrant major disaster assistance.” The Stafford Act gives the president discretion to determine if a natural catastrophe, fire, flood, or explosion caused sufficient damage to warrant federal assistance. But it does not authorize the president to designate events other than those listed, such as a manmade pandemic, as a major disaster. Consequently, the law does not permit Trump’s actions in this case.
To be fair, defenders of Trump’s actions appear to be operating within the Constitution's bounds. However, underlying their claims that the president acted lawfully is the implicit assumption that Congress has the power to violate the Constitution by merely passing a law. According to this school of thought, Congress can disregard the separation of powers and delegate its constitutional authority to make a law to the president.
Yet, even if the Stafford Act authorized Trump’s actions in this instance, those actions would nevertheless constitute an unconstitutional delegation of power by Congress to the president. This is because the Constitution governs Congress. Congress does not regulate the Constitution. As James Madison pointed out during Virginia’s ratifying convention in 1788, “By this government, powers are not given to any particular set of men — they are in the hands of the people — delegated to their representatives chosen for short terms — representatives responsible to the people.” According to James Wilson, Madison’s fellow delegate at the 1787 federal convention that drafted the Constitution, the document's power is "paramount to the power of the legislature, acting under that Constitution."
The pervasive tendency to rationalize Trump’s executive actions as complying with the law highlights a trend among politicians to disregard the Constitution’s separation of powers when necessary to achieve their political goals. If it continues, people will likely grow accustomed to thinking like subjects instead of self-governing sovereigns. When that happens, Jay’s question, “Shall we have a King?”, will have a very different answer.