WSJ on Trump's EOs: Yes, Obama did it first -- and it's still a bad idea

Political masterstroke? True enough, declares the Wall Street Journal’s editorial board. By issuing his executive orders this weekend — actually one EO and three other action types — Trump escaped from Nancy Pelosi’s trillion-dollar pork trap. Walking away was the right choice, the editorial declares — but the EO raises more potential for executive overreach than it allows for problem-solving in the short term.

Pelosi and Chuck Schumer weren’t negotiating in the first place, the WSJ’s editors point out:

They are demanding $800 billion in aid to the states, an extension of $600 a week in jobless insurance into 2021 despite its disincentive to work, and they refuse to budge on Covid-19 liability protection for businesses and nonprofits. They want election mandates on states that have nothing to do with the pandemic.

This is less a negotiation than a stick-up. The Democratic political calculation has been that Mr. Trump would listen to Treasury Secretary Steven Mnuchin and roll over again. This would let them impose much of their long-term agenda, divide Republicans in Congress, and set the table to make their welfare-state expansions permanent next year when they expect to run Congress and the White House.

Pelosi and Schumer claim they did shift off their position — at least in total cash ask. Yesterday both claimed that they reduced their total spending demand of $3.5 trillion by a trillion dollars, which would have been a little less than halfway to the GOP’s $1 trillion limit. The leverage of the EOs could push Democrats to negotiate a bit more than they want, although whether that will create more room for compromise is anyone’s guess. And it’s also true that EOs will allow Trump some room to chart his own course for economic recovery, although the necessary restraints on scope might mean that those efforts might not produce a lot of results on their own.

The precedential weight of presidential orders worries the WSJ’s editors, however. The short-term political gain comes at the expense of constitutional checks on executive power, even if this has its own precedents in the previous administration:

Yes, Mr. Obama did it first. He paid health insurers cost-sharing subsidies under ObamaCare without an appropriation from Congress. More famously, as part of his “pen” and “phone” strategy, he used executive diktats to provide work permits for millions of undocumented aliens. Democrats and the media cheered these abuses, and Mrs. Pelosi’s charge now that Mr. Trump’s orders are “absurdly unconstitutional” is partisan hypocrisy.

Mr. Trump’s FEMA order may survive because no states are commandeered nor individuals harmed, and it lasts only through Dec. 6 or until the money runs out. The House would have standing to sue, but Mrs. Pelosi might not like the political look of suing to deny Americans extended jobless benefits.

These columns opposed Mr. Obama’s orders, and one constitutional abuse doesn’t justify another. Mr. Trump’s FEMA order is a bad legal precedent that a President Kamala Harris could cite if a GOP Congress blocked her agenda on, say, climate change.

We have raised the climate-change emergency hypothesis on more than one occasion, but it’s worth noting again. Governance on an emergency basis is a dangerous habit and one that’s tough to end. Conservatives are already objecting to the same impulse at the state levels, with governors like Gretchen Whitmer issuing EOs that absurdly restrict gardening and travel between one’s own properties. Conservatives also ridiculed Obama for his pen-and-phone nonsense explanations on using EOs to bypass Congress, and we’re still fighting to end DACA on that basis as well.

What do we gain in this instance in exchange for giving up the principled objection to governance by emergency decree? Not a whole lot, the WSJ’s editors rightly note. Trump gains a campaign issue on forgiving payroll taxes rather than deferring them, but thanks to the ambiguity of that situation, it seems more likely that employers will just hoard the cash and wait out on passing the cash along to employees. The eviction moratoria are reasonably straightforward but limited, and put some political risk on Trump from angry landlords who might not be too happy about getting their income stream even further delayed. The loan relief Trump has promised actually comes from the CARES Act anyway, the WSJ notes.

That’s pretty small potatoes for a one-time “owning of the libs.” Trump might have done better to have withdrawn from the negotiations and standing on principle, perhaps by casting a few Senate Republicans under the bus. At some point, Trump will no longer be president, but both sides may be contributing to the building of a truly imperial executive by playing these kind of short-term political games. The founders wrote the Constitution knowing full well that could happen — and conservatives may well regret choosing tactic over principle in the long run.