The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Earlier today, I linked to President Trump's four new executive actions. Here are my tentative thoughts.
The Trump Administration is carrying into execution what I've dubbed the Regents strategy. First, confer benefits through the under-enforcement of the law. Second, hope that the Supreme Court allows the executive action to go into effect. Third, allow people to rely on those policies. Fourth, there are now reliance interests. Therefore, pursuant to Regents, it will be tougher for the court to unwind the policy in the future.
The play is at Step #2. I assume that some district court, somewhere, will enjoin these polices. (D.D.C. clerks, please report to your chambers, ASAP). And, I'll assume that the Circuit Courts will decline to stay the injunction. At that point, it all falls to–who else–Chief Justice Roberts. If he declines to stay the injunction, then the Regents strategy fails. These plans failed to launch. If Roberts stays the injunction, then the Regents strategy goes into motion.
What will Roberts do here? Jon Adler explained that Roberts Roberts is skeptical of lower-court injunctions. That is, he likes to maintain the status quo. What exactly is the status quo? As it stands now, people are receiving certain benefits. Congress failed to act. Therefore, those benefits stand to disappear. I can see Roberts saying, "Well, we should preserve the status quo, and ensure there is no massive disruption, so I'll stay the injunction." Then Roberts will say, "You know, these leaks really are a big deal. Maybe Josh is right. I should step down." Scratch that last part. But I think I'm right about the status quo analysis. Roberts's preference is for things to stay the way they are, and a stay of an injunction would keep things the way they are.
Furthermore, the question of congressional standing looms large. Yesterday, the D.C. Circuit punted in Mnuchin. This case considered whether the House has standing to challenge a violation of the Appropriations Clause. (Jon Adler wrote about this issue yesterday). I could see the Chief staying an injunction solely because the congressional standing issue is unresolved. (After Virginia House of Delegates, I think this issue is a basically settled.) And once again, Trump gets past stage #2.
Now, a few comments about policy. Trump took specific actions that will be very popular. Sure, law professors can fight over the separation of powers issues. But the people who benefit from these policies will gladly, or perhaps begrudgingly, accept the money. The optics for legal challenges are bad. Will the House of Representatives go to court to ensure that people have to pay taxes? Will states go to court to block people from receiving unemployment benefits? Will landlords go to court to make it easier to evict people? Will lenders go to courts to ensure that student loans are paid? Trump's strategy is diabolical.
Trump also put Vice President Biden in a tough spot. All of these orders expire in December 2020. Trump said if he is re-elected, he would continue the policies, and forgive some of the loans. What is Biden going to do? He favors the policy, opposes the executive actions, and prefers legislation? Again, law professors love those sorts of arguments. I have been repeating that line for years with respect to DACA. But average people will not be happy with it. Biden is stuck between a rock and a hard basement.
One final note. The biggest losers today are employers. Will corporations actually stop withholding payroll taxes? Sure, Trump approved that action. But federal law remains in place. Will any compliance department actually stop withholding payroll taxes on the promise of an executive action? A Biden administration could prosecute these companies. Thus, employers will now be at odds with their employees who demand their full salary. Perhaps an employer would be a good litigant to challenge this executive action, as there is no regulatory uncertainty.
I will dig into the orders soon. But the optics on this case are not obvious. So much of the Trump Administration's actions have been flubbed. These actions look, at first glance at least, more careful.