Friday, August 14, 2020


In the wake of President Trump’s somewhat aggressive executive orders on payroll taxes and unemployment payments this month, it is probably wise and useful to think about the nature of precedent, the deficiencies of Congress, the problem of the Supreme Court, and what it all means for the next Democratic president (whenever he or she appears).

Let me note at the outset that the payroll tax is a regressive monstrosity and that Republicans should be ashamed that they have spent much more attention and energy to reducing corporate taxes than to reducing or eliminating the payroll tax, which is really a tax on employment and pay raises.

With that said, what the president did was ill-considered.

By suspending collection of the payroll tax, Mr. Trump extended two bad precedents. First, he adopted his predecessor’s approach to DACA by simply refusing to enforce a law. Additionally, he — again — moved funding from one account to another and thereby vitiated the entire appropriations process.

In both instances, and especially with respect to DACA, a sitting president essentially made law on his own, without reference to Congress. As laudable as the underlying goals might be, that can’t be tolerated in a constitutional republic. We have no king here. We want no king here. Citizens rule themselves principally through the legislature.

For its part, the Supreme Court has added fuel to the fire by not only tolerating but also institutionalizing the idea that presidents can make law on their own. In its recent decision in DHS v. Regents, the court made President Obama’s approach to DACA — refusal to execute a set of laws — binding on his successors with respect to that policy. In doing that, the justices have confirmed presidents’ ability to make law — or refusal to enforce laws — and expanded it by occluding possible remedies.

Democrats were happy enough about the policy outcome that they didn’t care that the court had dramatically expanded the powers of the executive at the expense of the legislature. Conversely, despite his unhappiness with the policy outcome, it took the president less than eight weeks to use the new authority given to him by the court to execute the orders on payroll taxes and unemployment.

The next Democratic president will be emboldened and empowered by that Supreme Court decision and by Mr. Trump’s aggressive and immediate application of its expansiveness. He or she will no doubt use that newly created power in all sorts of areas where there are strong and durable policy disagreements. Climate change? Health care? Taxes? Gun confiscation?  

What would keep a Biden administration from reprogramming money from the defense budget to the Department of Health and Human Services? Or from announcing that it is not going to collect taxes on anyone making less than $150,000? Or from declaring a public health emergency and seizing privately held weapons?

For Congress, this is an existential moment.

If a president can decide which laws an administration will enforce, and to what extent, what then is the purpose of establishing laws in the first place? If a president can move appropriated funds where he wishes without reference to the will of the legislature, what is the value of the power of the purse? Why have a legislature at all?

In short, we have finally arrived where we have been heading for 50 years: the day of reckoning for the legislative branch. Will its members be able to overcome their partisan attachments and reassert their constitutional prerogatives and authorities, even if that means losing ground on important policy objectives? Or will legislators be unable to summon the resolve to work for the long-term good of the institution — and the nation it represents?

I have taken the same oath of office as members of Congress. The gravity of the charge weighs as you say the words:  “I do solemnly swear that I will support and defend the Constitution of the United States.”

If you’ll note, the oath is to defend the Constitution, not policies nor preferences nor parties.

• Michael McKenna, a columnist for The Washington Times, is the president of MWR Strategies. He was most recently a deputy assistant to the president and deputy director of the Office of Legislative Affairs at the White House.

Copyright © 2020 The Washington Times, LLC.