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Democrats are miffed over Trump’s use of the ‘Obama precedent’

Democrats weren’t too keen on the idea of President Donald Trump signing a batch of directives to extend financial relief to those affected by the coronavirus.

On Saturday, Trump signed COVID-19-related orders that extend $400 of federal unemployment benefits to the jobless, helped provide temporary financial aid to those facing eviction or foreclosure, implemented a payroll tax holiday from Sept. 1 to Dec. 31 for workers making less than $100,000 a year, and set student loan interest rates at 0 percent over that same time period.    

On “Fox News Sunday,” House Speaker Nancy Pelosi called Trump’s actions “unconstitutional slop,” while over on CNN she dubbed the moves “absurdly unconstitutional.” She added that was the “kindest thing I could say.” Democrats are talking about suing Trump over the orders, as they have before, including for immigration and health care policies and to get his income taxes. 

Now, most of us likely don’t recall Pelosi or other Democrats balking on such grounds when President Barack Obama signed a constitutionally dubious directive creating the Deferred Action on Childhood Arrivals, or DACA, program, after saying 22 times he had no such authority.

Nonetheless, constitutional purists among us — which, of course, Pelosi & Co. are not — could rightly recoil at what Trump did, since it is a fundamental — and Democrat-caused — breakdown of the constitutional order.

But that doesn’t make it illegal.

For example, Trump’s authority to temporarily suspend collection of payroll taxes stems from a 1997 federal law — translation: enacted by Democratic President Bill Clinton, with the assistance of a Republican-held Congress — that remains valid.

And Trump actually made a point with this one.

Writing at National Review Online, American Enterprise Institute scholars Yuval Levin and Adam White noted that three of Trump’s directives, including the one regarding payroll taxes, were presidential memoranda. This means that while they carry weight similar to executive orders, the president is not required to identify his legal authority for taking action.

In the case of the payroll taxes Trump did show where such authority originated. 

If they sue, Democrats may ultimately prevail in court. But it won’t change the fact that they are now objecting to Trump while staying silent when Obama used the same power.

Levin and White quote Sen. Ted Cruz (R-TX) who once noted the “Obama precedent” was “opening the door for future lawlessness.”

They added, “Trump’s COVID-relief orders are mostly for show. Their substantive effects are likely to be modest. But their revival of presidential pen-and-phone policymaking threatens to further undermine the foundations of our constitutional government.”

To that end, Democrats might have garnered more support for Trump’s alleged constitutional abuse, had they only been more willing to complain when their guy held the pen.

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