When President Trump announced last week that he would unilaterally allocate billions of dollars of federal and state funds for an expanded unemployment benefits system; that he would push a federal evictions moratorium and delayed repayments on student loans; and — the kicker — that he would give employees a payroll tax deferral until year’s end, House Speaker Nancy Pelosi responded by calling the moves “absurdly unconstitutional.”
After all, the Constitution is clear that Congress controls the nation’s purse strings. There are limits to how far the federal government can go in compelling states to pay for federal programs. And there is simply no precedent for a president to decree, without legislative input, that the complex funding mechanisms for programs as vital to the national well-being as Social Security and Medicare should be put on hold.
Trump’s actions, according to some legal observers, may be legal so long as they have no real teeth, so long as they are considered more as advice to agencies and departments rather than orders. But if these executive orders and memoranda were to be interpreted in an expansive way that would actually deliver genuine and speedy financial supports to struggling Americans, at that point they would start to cross the bounds into illegality. In other words, Trump is talking a big talk here, but, as is often the case with him, he’s walking a much more fragile walk.
Getting into the constitutional law weeds in parsing Trump’s actions, however, largely misses the point. In calling Trump out in the way that she did, Pelosi may have fallen into a Trumpian trap.
Trump doesn’t really care whether the policies he proposes are “unconstitutional.” In fact, part of his political persona involves a calculated pragmatism when it comes to the Constitution: He fetishizes the Second Amendment because it suits his political needs to pander to gun owners. But, in his violent language against the press, for example, he has corroded respect for the First Amendment. And when it comes to big-picture policy and regulatory changes around immigration, taxation, and so on, he operates largely in an extra-constitutional mental universe, and conveys to his audience that he doesn’t care a whit for the nuances and complexities of constitutional limits.
Politics is always, at least in part, about optics; and with Trump what is, and has always been, more important than genuine policy successes is the illusion of action. These days, with the country hobbled by a pandemic and by economic contraction, and with Trump’s popularity waning, that illusion has swallowed all other parts of the process. Trump doesn’t want to do the tedious work of political negotiations; rather, with the election fast approaching, he is desperate to portray himself as a man of action, as a lone ranger taking on the entrenched bureaucracies.
To achieve this illusion, Trump increasingly wants to rule by fiat — or at least to pretend to rule by fiat. He is claiming executive powers that are in no way legitimate within the American constitutional context. And he is doing so not for any putative greater good, but for short-term political and personal gain.
Hence, if he thinks it will serve his political advantage in the months leading up to the election to proclaim a tax holiday to voters — his trade adviser Peter Navarro made the extraordinary claim last week that Trump had a divine right to bypass Congress and reshape these financial systems — he’s perfectly willing to go down that road, even if the long-term consequences of this irresponsible act include pushing Social Security toward insolvency by decade’s end.
As he did with his February 2019 declaration of an “emergency” on the southern border as a way to fund a border wall that Congress had explicitly refused to authorize, so this time around he is gambling that he can scrap, override and ignore separations of power that have been core parts of the country’s democratic system for hundreds of years. And he is banking on the fact that, if Democrats in Congress sue to block his actions, he can flip the narrative and make it look like it is his opponents who are holding up the distribution of aid to needy families.
I heard about Trump’s executive orders while driving back from a family trip to Wyoming. It was a long ride, and we spent much of the time listening to musicals on my iPod. The one that most struck a chord was Andrew Lloyd Webber’s Evita, about the tumultuous relationship between Argentina’s post-World War II strongman leader Juan Perón and his second wife, the legendary Evita; and, more generally, about the politics that catapulted this couple to the pinnacle of power.
Perón was a military man, a colonel. But, unlike the generals who ruled Argentina via juntas in the decades following Perón’s ouster, he wasn’t only reliant on military hardware, on the torture chamber and the connivance of a business elite to secure his power. To the contrary, Perón’s power was quasi-populist: He proposed expansions to the safety net, he marketed himself a hero of the working class, he used the benefits system — including subsidizing workers’ holidays — to secure support; he manipulated tariffs to benefit core labor constituencies, and he pitched himself as a no-nonsense leader who could cut through the red tape and the inconveniences of a pluralist political process to deliver fast, effective and tangible political and economic results to his constituents.
Trump, too, has, these past four years, fashioned himself as something of a Perónista, although, unlike Perón, he has no affinity to the trade union movement as a whole, despite his embrace by police unions and by unions representing workers in Border Patrol, Immigration and Customs Enforcement, and other homeland security agencies.
His constituency is, as was Perón’s, disproportionately comprised of two distinct groups: the white working class and the monied class. And to both of these groups, he offers a grab bag of goodies: to the wealthy he offers extreme tax cuts, as well as the rapid destruction of regulations intended to protect the environment and the workplace from the worst impacts of predatory capitalism; to the white working class, he offers a racial narrative that demonizes nonwhites and blames the woes of increasingly economically insecure white workers on immigrants and racial justice organizers.
Now, in the COVID era, Trump seeks to present himself as a strongman, above the fray of a dysfunctional and divided Congress, who can distribute billions, even trillions of dollars of benefits without assistance from either the Senate or the House. He shutters national borders with the stroke of a pen, severs transit connections to entire continents, promotes outlandish conspiracy theories about the virus via tweet and brings out armed protesters to “liberate” states like Michigan from public health regulations put in place by their governors.
When checks, ranging in value from a few hundred dollars up to $1,200 were sent out to taxpayers as a part of the first COVID stimulus package, Trump insisted each check have his signature printed on it. He wanted to make sure that, in this moment of national calamity, he would be seen as a savior figure doling out money almost personally to those in need.
And thus, we come back to the illusion that is at the heart of Trumpian, strongman politics. It’s always been more about perceptions than about reality and the nitty-gritty. Whatever Trump says, a president can’t solve economic woes on the scale of those the U.S. now faces with a few signatures on a few executive orders.
This method of governance may or may not be “absurdly unconstitutional,” as Pelosi put it, but what’s not up for debate is that it’s lazy. Trump doesn’t want to roll up his sleeves and really apply himself to the hard work of repairing a busted economy. Instead he wants to play Juan Perón in his own musical, strutting the stage, bellowing forth faux solutions and pretending that nothing — not even the Constitution — will stand in his way.