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Three ways a conservative finds Trump overstepping his bounds amid pandemic
Oct 21 2020
Griffith is a research fellow specializing in financial regulations at the Heritage Foundation, a conservative think tank.
<p>Stalemate continues in Congress over how to next mitigate the lingering economic pain inflicted by the coronavirus shutdown. Nearly all House members and senators publicly agree on the need to provide assistance to those impacted by this economic crisis. Yet, despite almost six months of discussion, legislation remains elusive.</p><p>President Trump has identified similar concerns and repeatedly expressed support for additional aid. And because of the lack of congressional action, he has aggressively explored an array of possible executive actions linked to existing statutory authority. </p><p>Much of this authority granted by Congress is either expansive or vaguely defined. Since our nation's founding, presidents have tested its outer limits. In response, Congress has often shirked its constitutional mandate to check the president from exceeding these limits. In addition, over the decades Congress has proactively ceded large swaths of its responsibilities to the executive branch. As a result, the executive branch wields power unimagined by the Founders. </p><p>Recent executive orders on payroll tax deferments, unemployment compensation and eviction moratoriums highlight the importance of restoring the balance of power envisioned by our founders. Our Constitution gives Congress the ultimate power to levy taxes, allocate spending and create law. The executive branch, headed by the president, bears the responsibility of faithfully executing those laws.</p>
<p><p style="text-align: center;" id="sufn"><a style="font-weight: bold;margin:40px auto;font-size:2rem" href="https://thefulcrum.us/st/newsletters">Sign up for The Fulcrum newsletter </a></p></p><p>Earlier this year, <a href="https://www.irs.gov/newsroom/deferral-of-employment-tax-deposits-and-payments-through-december-31-2020" rel="noopener noreferrer" target="_blank">Congress granted businesses leeway</a> to defer until the end of 2022 the employer portion of the Social Security tax owed on the remainder of this year's wages. However, Congress chose not to defer the taxes for the employee portion. So Trump issued an executive order suspending collection of the employee portion for the rest of the year.</p><p>Regardless of desired economic outcome, the president <a href="https://www.dailysignal.com/2020/08/10/payroll-tax-suspension-executive-order-is-legally-dubious-economically-unnecessary/" rel="noopener noreferrer" target="_blank">lacks clear statutory authority</a> to suspend collection of the tax in this manner.</p><p>Furthermore, most businesses are hesitant to transmit deferred taxes to employees. After all, employers still must remit these taxes, albeit at a delayed date. When the IRS bill comes due, they will be forced to withhold these deferred taxes from the paychecks of their workers.</p><p>The attempt to alter tax policy through executive order has frustrated the administration's desire to provide workers with a boost in take-home pay during the economic uncertainty.</p><p><div class="x12"><div class="htlad-Desktop_Content_Banner"></div></div></p><p>Next, consider the state of federal unemployment benefits. The end of July marked the expiration of a weekly boost of $600 that had been provided since March under the last recovery package, known as the CARES Act. Ever since, Congress has failed to enact additional aid to the more than 11 million made jobless during the pandemic.</p><p>To lessen the blow, Trump issued an executive order directing that as much as $44 billion in the disaster aid reserves of the Federal Emergency Management Agency be used to provide $300 weekly in benefits (matched with $100 state payments) to anyone eligible for jobless insurance under the CARES Act. <a href="https://www.twc.texas.gov/news/fema-ends-lost-wages-assistance-program-state-unemployment-benefits-continue#:~:text=The%20Lost%20Wages%20Assistance%20Program%20was%20a%20temporary%20provision%20established,expire%20until%20December%2026%2C%202020." rel="noopener noreferrer" target="_blank">These funds were depleted</a> in less than two months. </p><p>The president only embarked on this novel approach following Congress's failure to find a legislative solution. Unfortunately, the executive order sets a precedent of unilaterally declaring a federal emergency and then using that emergency to redirect appropriations.</p><p>Trump's third big move was on eviction moratoriums. He issued an <a href="https://www.federalregister.gov/documents/2020/09/04/2020-19654/temporary-halt-in-residential-evictions-to-prevent-the-further-spread-of-covid-19" rel="noopener noreferrer" target="_blank">executive order</a> protecting all residents of rental properties until the end of the year. This order was predicated on the <a href="https://www.govinfo.gov/link/uscode/42/264?type=usc&year=mostrecent&link-type=html" rel="noopener noreferrer" target="_blank">Public Health Services Act</a> , which authorizes regulations "necessary to prevent the introduction, transmission or spread of communicable diseases from foreign countries into the states or possessions, or from one state or possession into any other." Examples listed in the law include "inspection, fumigation, disinfection, sanitation, pest extermination, destruction of animals or articles found to be so infected or contaminated as to be sources of dangerous infection to human beings, and other measures." </p><p>So what legal rationale links an eviction moratorium to this authority? The clearest connection seems to be <a href="https://www.federalregister.gov/documents/2020/09/04/2020-19654/temporary-halt-in-residential-evictions-to-prevent-the-further-spread-of-covid-19" rel="noopener noreferrer" target="_blank">this part of the order</a>: "Eviction moratoria — like quarantine, isolation, and social distancing — can be an effective public health measure utilized to prevent the spread of communicable disease."</p><p>But is a ban on evictions related to preventing the international or interstate spread of communicable diseases? Here are the facts: Total relocations in a typical year far exceed the number of evictions experienced even in the depths of the Great Recession at the end of the last decade. Then, the number of evictions failed to top <a href="https://evictionlab.org/national-estimates/" rel="noopener noreferrer" target="_blank">1 million households annually</a> — or fewer than 2.5 million individuals. In contrast, <a href="https://www.census.gov/data/tables/2019/demo/geographic-mobility/cps-2019.html" rel="noopener noreferrer" target="_blank">more than 30 million Americans moved</a> from one location to another last year in a healthy economy. </p><p>A blanket moratorium that fails to target a tenant's underlying health condition or coronavirus symptoms strays far from the express intent of the law Trump cited. Even the order itself hints the ban is meant as an economic relief measure, not a tool to protect the public from the spread of disease. For instance, the moratorium excludes people not in poverty or otherwise able to pay their rent.</p><p>In the midst of the current economic storm, the president's desire to help revive the economy and give relief to Americans who continue to suffer is understandable. And given the lack of action by a dysfunctional and politically divided Congress, it's understandable Trump is pursuing alternative approaches to alleviate the economic pain.</p><p>But our system of government, including enumerated powers and separation of powers, requires each branch to stay in its assigned lane. Creating economic policy through executive order threatens a further encroachment of the executive branch upon the legislative branch. </p>
<div></div><p>Reversing this long-term trend requires Congress to reassert its responsibility to legislate — and for the executive branch to once again focus on executing the law as written.</p>
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Good-government groups protest military force against protesters.
Laws limit military role in quelling election unrest
Oct 15 2020
As a momentous election draws closer, government leaders and law enforcement agencies are preparing for a contested election and ensuing civil unrest. The FBI and Department of Justice are getting ready for election-related violence. And National Guard leaders have assembled rapid-response forces in two states to deal with potential disruptions.
Joint Chiefs of Staff Chairman Gen. Mark Milley has been unequivocal that the military should play "no role" in a U.S. election. "Zero," he said. In fact, it is a federal crime to deploy troops to polling places. But what if there are protests, including when voters have already cast their ballots but the final results remain uncertain?
To be clear, if there is any election unrest, the federal government should not be the one handling it. Elections are run at the local and state levels, so those law enforcement agencies should respond. Yet there's concern the president and his allies may try to interfere with election outcomes by deploying — or threatening to deploy — military forces and turn American streets into "battle spaces."
<p>Let's step back to Lafayette Square to add some context. On June 1, National Guard troops were used to clear civil rights protesters from the square for a presidential photo-op. The Trump administration asked states to send National Guard troops into D.C. to <a href="https://www.nytimes.com/2020/06/02/us/politics/trump-walk-lafayette-square.html" rel="noopener noreferrer" target="_blank">crack down on these protests</a>. <a href="https://www.washingtonpost.com/investigations/how-trump-amassed-a-red-state-army-in-the-nations-capital--and-could-do-so-again/2020/10/01/2f10e17c-f9d6-11ea-a275-1a2c2d36e1f1_story.html" rel="noopener noreferrer" target="_blank">Over 98 percent</a> of the 3,800 National Guardsmen deployed came from states whose Republican governors answered Trump's call. This "red-state army" of out-of-state National Guard troops was operating under a "<a href="https://www.govinfo.gov/content/pkg/USCODE-2011-title32/pdf/USCODE-2011-title32-chap5-sec502.pdf" rel="noopener noreferrer" target="_blank">hybrid status</a>," which means they're on federally funded missions while under state governors' command. Because National Guardsmen in hybrid status remain under state control, they are exempt from posse comitatus, the <a href="https://www.govinfo.gov/content/pkg/USCODE-2011-title18/pdf/USCODE-2011-title18-partI-chap67-sec1385.pdf" rel="noopener noreferrer" target="_blank">principle</a> that the U.S. military cannot perform domestic law enforcement functions unless expressly authorized by law. But when National Guardsmen also report to a federal chain of command, as Defense Secretary Mark Esper <a href="https://twitter.com/protctdemocracy/status/1281293559652593671" rel="noopener noreferrer" target="_blank">admitted</a> they did in D.C., these troops are subject to posse comitatus — unless the president properly invokes some other authority, such as the Insurrection Act. Yet, by <a href="https://twitter.com/KerriKupecDOJ/status/1270487263324049410/photo/3" rel="noopener noreferrer" target="_blank">Attorney General William Barr</a>'s own account, National Guard troops' mission in DC included quintessential law enforcement duties, including "detention" and "search." </p><p><div class="x12"><div class="htlad-Desktop_Content_Banner"></div></div></p><p><a href="https://www.politico.com/news/2020/09/11/trump-election-night-riots-412323" rel="noopener noreferrer" target="_blank">President Trump has said</a> this could happen again, promising that post-election protests would be "put ... down very quickly." It would be improper to use the <a href="https://assets.documentcloud.org/documents/7201512/32-U-S-C-502-F-Primer.pdf" rel="noopener noreferrer" target="_blank">National Guard</a> or <a href="https://assets.documentcloud.org/documents/7201509/Insurrection-Act-Legal-Primer.pdf" rel="noopener noreferrer" target="_blank">military</a> (or <a href="https://assets.documentcloud.org/documents/7041963/Law-Enforcement-at-the-Polls.pdf" rel="noopener noreferrer" target="_blank">other federal law enforcement)</a> to patrol the polls or retaliate against protesters. So what happens if the president or his allies try anyway?</p><p>We can learn from what happened in Lafayette Square and beyond. Then, the troops withdrew from Washington within a few weeks. But the law didn't precipitate their retreat. Public opprobrium did. Political leaders and the public will have to fight back.</p><p>There are both legal and political ways that state and local leaders can respond. Concerning the National Guard at polling places, governors and National Guard leaders should commit to upholding <a href="https://www.law.cornell.edu/uscode/text/18/592" rel="noopener noreferrer" target="_blank">laws</a> that apply to the U.S. military. Governors, state attorneys general and mayors should broadcast the message early that it's unlawful for the president to use the military or federal agents to interfere with elections. State and local leaders can also create political pressure on key decision-makers. Just as Milley vociferously denounced the idea that the military should play any role in our election, governors and mayors can denounce improper deployment of federal law enforcement. Finally, states and cities can <a href="https://www.justsecurity.org/72500/trump-cant-lawfully-use-armed-forces-to-sway-the-election-understanding-the-legal-boundaries/" rel="noopener noreferrer" target="_blank">call on courts</a> to intervene.</p><p>Meanwhile, Sen. Tom Udall and Rep. Jim McGovern are <a href="https://www.nbcnews.com/think/opinion/trump-barr-used-loophole-deploy-national-guard-u-s-cities-ncna1236034" target="_blank">working on legislation</a> to close the statutory loophole Barr exploited to evade laws to use the military to police Americans. </p><p>One of the lessons of Lafayette Square is that public outrage and protests may be a critical check on the use of the force against protesters. If, as President Trump has threatened, the military is unlawfully deployed against U.S. citizens exercising free speech, Americans must stand with protesters to preserve the rights for all. </p><p><a href="https://protectdemocracy.org/meet-the-team/" rel="noopener noreferrer" target="_blank"><em>Soren Dayton</em></a><em> is a policy advocate and </em><a href="https://protectdemocracy.org/meet-the-team/" rel="noopener noreferrer" target="_blank"><em>Christine Kwon</em></a><em> is a counsel at </em><a href="https://protectdemocracy.org/" rel="noopener noreferrer" target="_blank"><em>Protect Democracy</em></a><em>. <em>Read more from The Fulcrum's </em><a href="https://thefulcrum.us/election-dissection" target="_self"><em>Election Dissection</em></a><em> blog or see our </em><a href="https://thefulcrum.us/election-dissection/election-coverage" target="_self"><em>full list of contributors</em></a><em>.</em></em></p>
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Twitter is taking further steps to stop the spread of disinformation, taking on its most powerful user.
Twitter joins new push to curb election chaos online, by Trump and regular folk
Oct 09 2020
Twitter is taking on its No. 1 agitator in the name of protecting electoral democracy by combating both domestic and foreign disinformation.
But the changes announced Friday will also contain the sort of robust and rapid-fire political discourse at the heart of Twitter's identity, not only by politicians but by millions of everyday users.
New warnings will be attached to the lies of candidates, at least through Election Day. The site will reject any posts calling for voter intimidation or violence connected to the presidential or congressional elections. And no one will be permitted to declare victory before races have been called by major news organizations — a mirror of what Facebook announced a day earlier.
<p>The curbs suggest both companies are working to assure they get back on the right side of social media history, four years after they were a significant if secondary part of the Russian campaign to meddle in the election. Misinformation and false reports spread virtually unchecked across the major platforms. Now that those disinformation efforts have supplanted hacking as the foreign interference method of choice, U.S national security agencies say, the companies are making unprecedented moves to limit their roles as unwitting or passive accomplices.</p><p><p style="text-align: center;" id="sufn"><a style="font-weight: bold;margin:40px auto;font-size:2rem" href="https://thefulcrum.us/st/newsletters">Sign up for The Fulcrum newsletter </a></p></p><p>A consequence of joining Facebook, however, is that Twitter has now taken on its most prominent and also most powerful influencer. </p><p>President Trump has long made tweets his principal form of communicating with the world, from unveiling fundamental federal policy shifts to working out personal grudges. And this year Twitter had been his main venue for an unprecedented assault by a sitting president on the bedrock institution of democracy: unspooling dozens of baseless claims about fraud and mail-in voting, designed to sow doubt about the integrity of an election he might lose.</p><p>"Twitter has a critical role to play in protecting the integrity of the election conversation," company officials said in a blog post published at noon. "We encourage candidates, campaigns, news outlets and voters to use Twitter respectfully and to recognize our collective responsibility to the electorate to guarantee a safe, fair and legitimate democratic process this November," </p><p><div class="x12"><div class="htlad-Desktop_Content_Banner"></div></div></p><p>Until the election and any subsequent disputes are over, the company said, all of its millions of users will be slowed down before hitting the retweet button: They will need to take an extra step, designed to make people pause, of at least considering whether to provide comment above the tweet they're about to share.</p><p>Recommendations and trends will get new curbs intended to prevent abuse.</p><p>Twitter's announcement puts additional curbs on candidates with more than 100,000 followers, which covers not only Trump (with 87 million) and former Vice President Joe Biden (11 million) but virtually every candidate in a competitive Senate race and plenty of House candidates, too.</p><p>Their premature claims of victory, made before officials or credible news sources have called the election, will get called out with a warning label and users will be directed to Twitter's election page.</p><p>And they will be subject to "additional warnings and restrictions" if they spread falsehoods. This expands on the Twitter policy <a href="https://thefulcrum.us/big-picture/trump-threatens-social-media-after-twitter-fact-checks-his-vote-by-mail-claims" target="_self">imposed in May</a> that has resulted in more than a dozen Trump tweets, mainly jeremiads against voting by mail, being veiled with a warning screen and subject to retweet curbs.</p><p>Trump and many fellow Republicans maintain Twitter is out to squelch political speech and ideas only on the right. Democrats and good-government groups generally endorse more social media regulation as a way to block patently wrong propaganda and maybe even improve the tenor of civic discourse.</p>
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A policy change by Attorney General William Barr's Justice Department "is concerning, coming on top of a number of irresponsible assertions that voting is likely to be infected with fraud," writers Huefner.
DOJ policy reversal more likely to disrupt election than build confidence
Oct 09 2020
The Department of Justice has abandoned its longstanding policy of waiting until an election is over to investigate allegations of election fraud, according to press reports. Yet it is eminently sensible to delay investigations because it avoids actions that erode confidence in the election.
The policy itself includes this set of justifications: "Such overt investigative steps may chill legitimate voting activities. They are also likely to be perceived by voters and candidates as an intrusion into the election. Indeed, the fact of a federal criminal investigation may itself become an issue in the election."
<p>Given the compelling reasons behind the policy, any departures ought to be based on some urgent need, not mania. The Department of Justice isn't offering this kind of justification. Rather, in permitting pre-election investigations of "any component of the federal government [including the Post Office] implicated by election offenses," it seems to be citing isolated problems in absentee ballot delivery. Notably, the many dedicated public servants of the state and local governments responsible for conducting elections throughout the country have not asked for — or indicated any need for — a heightened federal role in investigating election fraud this year.</p><p><p style="text-align: center;" id="sufn"><a style="font-weight: bold;margin:40px auto;font-size:2rem" href="https://thefulcrum.us/st/newsletters">Sign up for The Fulcrum newsletter </a></p></p><p>The <a href="https://www.propublica.org/article/doj-frees-federal-prosecutors-to-take-steps-that-could-interfere-with-elections-weakening-long-standing-policy" target="_blank">DOJ policy reversal</a> is concerning, coming on top of a number of irresponsible assertions that voting is likely to be infected with fraud. These baseless assertions undermine public confidence in the election. Given the hype, any DOJ fraud investigation in the weeks leading up to the election could be further destabilizing — in exactly the way the original policy was designed to prevent. </p><p>We can hope Justice Department attorneys around the country will choose not to use their new authority to conduct pre-election investigations. Launching this kind of investigation would be akin to the deployment of federal authorities we saw this summer in response to scattered urban protests: an uninvited federal incursion on a state that doesn't need that assistance, which in fact exacerbates the problem. In the same way, the DOJ policy reversal may create the very problem — a disruption of the election — it wants to prevent. </p><p><div class="x12"><div class="htlad-Desktop_Content_Banner"></div></div></p><p><em>Steven Huefner is professor of law and deputy director of the <a href="https://moritzlaw.osu.edu/electionlaw/" target="_blank">election law program</a> at The Ohio State University's Moritz College of Law. <em>R<em><em><em><em>ead more from The Fulcrum's <a href="https://thefulcrum.us/election-dissection" target="_self">Election Dissection</a> blog</em></em></em></em></em> </em></p>
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