by Mitch Kokai
Senior Political Analyst, John Locke Foundation
Back in March, when the Trump administration ramped up its response to the COVID-19 pandemic, I argued that the politics of disaster relief was overwhelming the legal restraints on it. The foundational issue was whether the pandemic qualifies as a “major disaster” — not in some subjective, colloquial understanding of that term, but as the term major disaster is defined in federal law. It simply does not.
No one in government would engage on this question. To stake out the correct legal position would be to invite the slander of heartlessness. In point of fact, though, it would merely be saying something once understood as basic: The federal government has the power to grant all kinds of relief to address crisis conditions — including a pandemic and the financial damage it is doing to Americans whose livelihoods have been shut down by compulsory government action. But in our constitutional system, based on separation of powers, it is for Congress to legislate such relief, not for the president to decree it.
A president has the power to dictate terms and confer benefits only insofar as Congress has granted it by statute. Congress has not statutorily empowered presidents to pay unemployment compensation to people who have lost wages due to COVID-19 job losses. Consequently, President Trump’s unilateral executive action, directing the Department of Homeland Security to divert disaster-relief funding to pay $300 per week in lost-wages compensation (i.e., 75 percent federal underwriting of $400 payments, with the states making up the rest) is unlawful and unconstitutional.
This is election-year politics, pure and simple. It is utterly irresponsible of Congress to have gone on recess without addressing the emergency needs of Americans whose unemployment compensation under the CARES Act is about to expire. Democrats are committed to an extortionate game of chicken.