As this helpful article from the Smithsonian Magazine illustrates, the debate over the use of presidential executive orders to end-run Congress originated with Theodore Roosevelt. In his conservationist zeal to protect unique land and monuments, TR pushed the limits of the Antiquities and Reclamation Acts. While we are all blessed by the resulting preservation of sights like the Grand Canyon, his expansive view of presidential power also resulted in abuses like FDR’s internment of Japanese-Americans and President Truman’s attempt to seize the steel mills to prevent a strike. President Trump’s recent orders to provide partial relief for workers hit by the COVID-19 pandemic shows the limitations of the practice and its danger to our constitutional democracy.
This story from CNN sets forth the problems with these orders and why congressional action was required. The new $400 per month unemployment benefit may never materialize since it was not authorized to be distributed through the current unemployment insurance system. The payroll tax cut is really a deferral and so worker could be on the hook for a huge catch-up payment next year. Finally, the eviction protections simply consist of a study by the Secretary of Health and Human Services of ways to provide such protection.
When the last coronavirus relief effort stalled in March, I criticized both the President and Congress over their failure to reach agreement under the headline “Leaders Don’t Dither. They Decide”. This relief bill should be more targeted toward the unemployed and essential workers on the front lines of combating the disease and supporting American society in dealing with it. However. dangling partial relief for them by a questionable legal method is not real leadership. Leadership in our system of separation of powers often involves compromise. TR’s sympathy for those workers would probably drive him to swallow his pride to provide a “square deal” for them in time for destitute and heroic workers to receive the meaningful help they need.
Last Friday, the federal district court in Portland, Oregon issued an order DENYING the state Attorney General’s motion to restrict federal law enforcement in their protection of the Mark Hatfield Federal Building in Portland. The reason was procedural in nature in that the judge said the Attorney General did not have standing to represent the protesters regarding the matter. However, one of the grounds for this denial was that the state had not shown enough evidence of a widespread and concerted denial of the protester’s constitutional rights.
While the opinion may be one only a lawyer could love, I have still attached a copy so you can judge the result yourself. It is certainly a relief to know that the cool head of the law can still prevail over the mob and media distortions. Now we have to hope that federal and state elected officials can show the same cool demeanor.
President Trump never fails to find a way to do the right thing for the wrong reason and in the most ham-handed manner. The deployment of US Marshall’s and Homeland Security agents to Portland could have been justified simply by the need to protect the Mark Hatfield Federal Building, the judicial employees who work there, and those who need to do business there. If anyone interfered with those functions, the president had a duty to deploy the marshals to protect the facility and arrest violators. That’s what the US Marshals Service was established to do. See 28 USC Section 566.
If local authorities refused to assist and effectively condoned the attacks, the Insurrection Act provided a process to federalize the National Guard to protect federal authority. Specifically, it requires the president to first “by proclamation, immediately order the insurgents to disperse and retire peaceably to their abodes within a limited time”. See 10 USC Section 254. In addition to being legally required, such a proclamation would have enabled him to build the public support for such an admittedly extraordinary action. If the attacks continued nevertheless, the situation would have been no different than when the South Carolina militia fired on Fort Sumter in 1861 or when George Wallace stood in the schoolhouse door to stop desegregation in Alabama. The President would have to act to protect federal authority and the Union.
Instead, the President has used other provisions under the act intended to provide equal protection under the law to protect not people, but monuments and statues and now to enforce local laws. As I mentioned in a previous post, the federal government should support a “surge” in metropolitan police forces to rebuild their effectiveness and legitimacy. However, it should have been accomplished through increased funding of local police departments subject to strict guidelines. Federal enforcement agencies do not have the manpower or the local support to enforce local laws.
The drastic actions in Portland and elsewhere could have been an opportunity to unify the nation in support of federally protected rights. Once again, the president squandered that chance. A federal judge in Portland is currently considering a suit by the state of Oregon to restrain the forces protecting the very building which she holds court. Our only hope is that the judge will deny the state’s motion with enough legal eloquence to start to create the national unity we so desperately need.