Yesterday, I blogged about President Trump's Memorandum on Authorizing the Other Needs Assistance Program for Major Disaster Declarations Related to Coronavirus Disease 2019. I'll presume familiarity with the mechanics of the memorandum. This post will consider whether the President has the statutory authority to implement this memorandum.
There are three primary statutes referenced in the memorandum.
First, the starting point is 42 U.S.C. 5191(b). This statute authorizes the President to declare a national emergency:
The President may exercise any authority vested in him by section 5192 of this title or section 5193 of this title with respect to an emergency when he determines that an emergency exists for which the primary responsibility for response rests with the United States because the emergency involves a subject area for which, under the Constitution or laws of the United States, the United States exercises exclusive or preeminent responsibility and authority. In determining whether or not such an emergency exists, the President shall consult the Governor of any affected State, if practicable.
And President Trump issued such a declaration in March 2020. The memorandum recites:
On March 13, 2020, I declared a national emergency recognizing the threat posed by COVID-19. I also determined that same day that the COVID-19 outbreak constituted an emergency, of nationwide scope, pursuant to section 501(b) of the Stafford Act (42 U.S.C. 5191(b)).
Second, 42 U.S.C. 5191(b). references 42 U.S.C. 5193. This provision limits the amount of federal assistance to 75% of the eligible costs.
The Federal share for assistance provided under this subchapter shall be equal to not less than 75 percent of the eligible costs.
Third, 42 U.S.C. 5174(e) authorizes the President, in consultation with a Governor, to provide financial assistance during a major disaster. It provides:
(e) Financial assistance to address other needs
(1) Medical, dental, child care, and funeral expenses
The President, in consultation with the Governor of a State, may provide financial assistance under this section to an individual or household in the State who is adversely affected by a major disaster to meet disaster-related medical, dental, child care, and funeral expenses.
(2)Personal property, transportation, and other expenses
The President, in consultation with the Governor of a State, may provide financial assistance under this section to an individual or household described in paragraph (1) to address personal property, transportation, and other necessary expenses or serious needs resulting from the major disaster.
The statute does not define what "other necessary expenses are." The statute also does not define what it means to have "serious needs resulting from the major disaster." The President interpreted those phrases to refer to "lost wages assistance" that result from the COVID disaster he declared. The memorandum recites:
To help meet the needs of the American people during this unprecedented and continuously evolving public health crisis, the Secretary of Homeland Security (Secretary), acting through the FEMA Administrator, is authorized to make available other needs assistance for lost wages, in accordance with section 408(e)(2) of the Stafford Act (42 U.S.C. 5174(e)(2)) ("lost wages assistance"), to the people of a State, including the members of any tribe residing therein, if the Governor requests lost wages assistance and agrees to administer delivery and provide adequate oversight of the program, for a major disaster I declared pursuant to section 401 of the Stafford Act (42 U.S.C. 5170) for COVID-19, under the following conditions
This authorizations seems to fit within the confines of Section 5174 (e)(2). "The President, in consultation with the Governor of a State, may provide financial assistance" to "an individual or household in the State who is adversely affected by a major disaster" to address "other necessary expenses or serious needs resulting from the major disaster."
The source of statutory authority for this policy is orders of magnitude clearer than the statutory authority for DACA. President Obama's executive action relied on general provisions of the Immigration and Nationality Act. First, the government cited 6 U.S.C. § 202(5), which authorizes the secretary of homeland security to "[e]stablish national immigration enforcement policies and priorities." Second, the government invoked 8 U.S.C § 1103(a), which charges the secretary "with the administration and enforcement of this chapter and all other laws relating to the immigration and naturalization of aliens." Trump has relied on a specific statute that references making payments, in consultation with a Governor, for necessary expenses that result from a disaster.
What is the contrary argument? At Balkinzation, David Super makes a structural argument. Congress provided elsewhere for specific rules for Disaster Unemployment Assistance (DUA). 42 U.S.C. 5177(a) provides:
The President is authorized to provide to any individual unemployed as a result of a major disaster such benefit assistance as he deems appropriate while such individual is unemployed for the weeks of such unemployment with respect to which the individual is not entitled to any other unemployment compensation (as that term is defined in section 85(b) of title 26) or waiting period credit.
[Section 5177], however, comes with two conditions that the President's program violates. First, FEMA may only provide DUA to those who are not eligible for any other form of unemployment compensation. The President's program, by contrast, is limited to those who are receiving other unemployment benefits. And second, the statute caps DUA benefits at the amount that state UC programs would allow.
Trump's memorandum expressly applies to people who are eligible for regular unemployment compensation. Indeed, the memorandum applies to people who are "partially unemployed due to disruptions caused by COVID-19." That could extend to people who are still employed, but have had their hours reduced due to furlough. Without question, the financial assistance in Trump's memorandum would apply to people who are not eligible for DUA.
David writes that Section 5174(e) cannot be read "in isolation." Instead, he contends, "Congress has provided clear instructions for how the Disaster Relief Fund may be used for unemployment benefits" in Section 5177(a). Therefore, he concludes, "the President's action effectively reads those conditions out" Section 5177(a).
David's argument is a familiar one. It is one I have made many times before. One statute should not be read to create a conflict with another statute. In the past, I argued that DACA allowed the President to disregard specific provisions of the Immigration and Nationality Act concerning work authorization. (See the amicus brief I filed in Regents).
A similar argument could be made for Trump's memorandum: Section 5174(e) should not be read to be in conflict with Section 5177(a). The statutes must be read in harmony with one another. To borrow from the Trump v. Hawaii dissent, Congress established a "finely reticulated" method for providing disaster unemployment assistance in Section 5177(a). Therefore, Section 5174(e) should not be read to authorize the President to sidestep those rules, and pay what is in effect unemployment compensation.
How can we harmonize these two statutes? President Trump's memorandum hints at the answer. The memorandum does not refer to the "financial assistance" as unemployment compensation. The memorandum refers to the "financial assistance" as "lost wages." He uses that phrase over and over again.
To provide financial assistance for the needs of those who have lost employment as a result of the pandemic, I am directing up to $44 billion from the DRF at the statutorily mandated 75 percent Federal cost share be made available for lost wages assistance to eligible claimants…
In short, Trump views "lost wage assistance" as something above, and beyond unemployment compensation. Critics (and perhaps litigants) will argue that Trump is manufacturing an artificial distinction as a means to ignore Section 5177(a). Trump is simply relabeling "unemployment compensation" as "lost wages" to get around the harmonious reading canon.
Will Trump's argument work? I think so. Trump v. Hawaii rejected the dissenter's argument that the travel ban bypasses Congress's "finely reticulated" system of regulating entry. I was sympathetic to that statutory argument. But the legal framework supporting this memorandum is far stronger for the President than the capacious travel ban statute. And the statutory authorization here is much, much clearer than the scattered INA provisions at issue in DACA. Trump relies on a specific statute that lets the President provide financial assistance to people affected by disasters. Presumably, those people could be individuals who are eligible for unemployment compensation. And there are specific criteria the Governor has to comply with. We are not dealing with boundless discretion. Under a fair reading of the statutes, the financial assistance in Section 5174(e) would be separate from disaster unemployment assistance in Section 5177(a).
Do I like this outcome? No. Congress has given the President far too much discretion. My reaction to this order resembles my initial reaction to Trump's wall policy: Congress needs to reassert its power of the purse. But based on my initial review, this memorandum stands on a plausible statutory footing. And, I am not sure who would have standing to challenge. The funding only kicks in after a Governor makes the request. No state is required to make the request. And any litigation that tries to enjoin this financial assistance will be political suicide.
Again, these thoughts are tentative. Please email me if I missed anything.