President Barack Obama’s creative use of executive power set a precedent that President Donald Trump is now exploiting.
But what kind of precedent will Trump’s actions set?
The good news for those of us who think that both presidents overstepped their bounds is that Trump’s executive actions might not be deft enough to have a lasting effect.
Obama issued quasi-amnesties for large groups of illegal immigrants after repeatedly saying that he had no constitutional power to do it.
Congress had failed to act in the way he wanted, he explained, so he had to do it himself.
Now it’s President Trump’s turn to play legislator-in-chief.
After months of calling in vain for Congress to suspend the payroll tax, he decided to defer enforcement of it for most people. He didn’t reach a deal with Congress on unemployment benefits, either, so he is stretching the law to let states tap federal money to provide the benefit levels that he wants. (Trump also took two other, less controversial coronavirus-relief steps at the same time.)
The power of partisanship has kept this kind of presidential self-aggrandizement from being checked the way the Constitution presumes it will be.
Congress doesn’t push back to guard its powers because members of the president’s party — Democrats under Obama, Republicans now — side with the president instead of with their branch of the government.
But Trump’s unilateral actions are different from Obama’s in a way that will limit their impact. It’s not a difference of constitutional principle: Both men acted in place of the legislature.
Obama’s policies were designed, however, to be much harder to reverse.
An amnesty for many illegal immigrants — and especially for those illegal immigrants who came to the U.S. as minors, the first group Obama helped — had broad bipartisan support.
Republicans almost all objected to Obama’s doing it himself, without legislation that included other measures such as increased enforcement against new illegal immigration.
But a lot of them favored the policy itself.
Nobody has been trying to legislate the convoluted unemployment-benefit scheme Trump just created, on the other hand, and a lot of Republicans and almost all Democrats opposed the payroll-tax cut.
Obama’s policies changed the facts on the ground, too. Once the benefit of an effective amnesty was given to millions of people, it was difficult to take away — especially since it, again, had broad support in the first place. Trying to take it away required administrative steps that could be challenged legally, and so far the courts have kept it in place.
By contrast, it is not clear how widely people will take advantage of Trump’s new programs. Companies may decide to keep collecting payroll taxes because of the uncertainty surrounding the policy and the time limit on it. (It’s supposed to last through the end of the year.)
States may not tap the new unemployment-benefit money because they can’t do it without putting up some of their own, and they are currently strapped for cash.
Even if some of them do, the available funds are limited.
Obama’s use of executive power reduced the pressure on Congress to legislate on immigration, and it had never felt much urgency to do so to begin with.
Members of Congress still have a lot of incentive to reach a COVID-relief deal following Trump’s actions. Any bill will surely include unemployment-relief provisions that supersede, and make moot, Trump’s new policy.
Obama’s action was seen as a success for his political coalition, which achieved an important policy goal and did not pay much of a political price for it.
We don’t know, of course, how Trump’s policy will play out.
But it does not further a longstanding goal of Republicans so much as it gives Trump a victory in a news cycle, and it could backfire in several ways.
If Americans aren’t happy with economic conditions in the fall, for example, the inadequacy of these policies will get some of the blame.
When Obama moved on immigration, he did it after years of deliberation by his administration. He and his aides had time to think through how the policy would work and the political reactions it would cause.
Trump’s policies give the strong impression of being devised hastily.
It would not be surprising if they were not built to last.
All of these contrasts suggest Trump is a worse political tactician than Obama was.
But they also limit the damage his executive actions will do to our constitutional order.
Future presidents may be tempted to copy Obama’s approach.
They are less likely to emulate the strategy Trump is using right now.
Ramesh Ponnuru is a Bloomberg View columnist. He is a senior editor of National Review and the author of "The Party of Death: The Democrats, the Media, the Courts, and the Disregard for Human Life." Read Ramesh Ponnuru's Reports — More Here.
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