Democrats shy from leading court fight over Trump orders

President TrumpDonald John TrumpBiden says voters should choose who nominates Supreme Court justice Trump, Biden will not shake hands at first debate due to COVID-19 Pelosi: Trump Supreme Court pick 'threatens' Affordable Care Act MORE and Democratic leaders both predict there will be lawsuits over this weekend’s executive orders sidestepping Congress on issues like payroll taxes and unemployment benefits, but congressional Democrats are unlikely to lead that charge.

Democratic lawmakers aren’t rushing to court and will likely let state officials or private parties spearhead the legal challenges that could take months or even a year to resolve.

Among their chief concerns: the optics.

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Democrats worry about how it will look if they’re seen as trying to block much-needed aid to unemployed workers and households struggling to pay their bills during a recession, even though they fiercely disagree with Trump going around Congress with executive orders.

Congressional Democrats are also increasingly confident that two of Trump’s most controversial orders over the weekend — his instruction to defer payroll taxes and to spend $44 billion in disaster relief funds to supplement weekly unemployment benefits — will be unworkable, making a lawsuit unnecessary.

But even if they decided to sue, it’s unclear whether the Democratic-controlled House would be recognized as having the legal standing needed to move forward with a lawsuit challenging Trump’s orders.

The Senate, which is controlled by Republicans, has no plans to file a lawsuit either, despite some Republicans like Sen. Ben SasseBenjamin (Ben) Eric SasseThe Memo: Trump furor stokes fears of unrest Why a backdoor to encrypted data is detrimental to cybersecurity and data integrity McEnany says Trump will accept result of 'free and fair election' MORE (Neb.) calling Trump’s orders “unconstitutional slop.” 

Asked Monday if House Democrats are planning to file a lawsuit, Senate Minority Leader Charles SchumerChuck SchumerPelosi: Trump Supreme Court pick 'threatens' Affordable Care Act Will Democrats attempt to pack the Supreme Court again? Pelosi slams Trump executive order on pre-existing conditions: It 'isn't worth the paper it's signed on' MORE (D-N.Y.) highlighted the Democrats’ view that the executive orders are flawed to the point of being nearly unworkable.

“The bottom line is the executive orders — I agree with Sasse that they’re unconstitutional slop — but the bottom line is even if they’re here, they’re not going to do what’s needed or come even close,” Schumer said.

Schumer told reporters last week that there would likely be litigation against Trump’s executive orders but didn’t specify who the plaintiffs might be.

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A spokesperson for Speaker Nancy PelosiNancy PelosiPelosi: Trump Supreme Court pick 'threatens' Affordable Care Act Sunday shows preview: Lawmakers prepare for SCOTUS confirmation hearings before election Will Democrats attempt to pack the Supreme Court again? MORE (D-Calif.) did not respond to a request for comment on whether Democrats would file a lawsuit.

Trump administration officials insist they’re on solid legal ground.

“We’ve cleared with the Office of Legal Counsel all these actions,” Treasury Secretary Steven MnuchinSteven Terner MnuchinCentrist Democrats got their COVID bill, now they want a vote The Hill's Morning Report - Sponsored by Facebook - Republicans lawmakers rebuke Trump on election On The Money: Anxious Democrats push for vote on COVID-19 aid | Pelosi, Mnuchin ready to restart talks | Weekly jobless claims increase | Senate treads close to shutdown deadline MORE said on “Fox News Sunday.” “If the Democrats want to challenge us in court and hold up unemployment benefits to those hard-working Americans that are out of a job because of COVID, they’re going to have a lot of explaining to do.”

Sen. Chris Van HollenChristopher (Chris) Van HollenCongress must finish work on popular conservation bill before time runs out Democrats fear Russia interference could spoil bid to retake Senate Mid-Atlantic states sue EPA over Chesapeake Bay pollution MORE (D-Md.) said Monday that Democrats are more concerned about providing additional federal aid to people suffering because of the pandemic than devising a legal strategy to block Trump in court.

“I think the focus right now needs to be on delivering relief to the American people, and I think that will be the focus of House and Senate Democrats,” he said.

“There are constitutional problems with this, but we should focus on the fact it doesn’t actually deliver the kind of relief that is required,” he added.

Trump issued four orders over the weekend.

He instructed the Treasury Department to stop collecting payroll taxes until Dec. 31 for workers who earn below $104,000 a year; he called for laid-off workers to receive $400 a week to be paid from $44 billion in funding at the Department of Homeland Security for disaster relief; he called for Health and Human Services Secretary Alex Azar to study whether an eviction ban is needed; and he ordered that interest on student loans held by the federal government be waived through Dec. 31. 

Trump told reporters Friday at his golf club in Bedminster, N.J., that he expected litigation but predicted he would emerge victorious.

Legal experts note that while the courts can act quickly if they choose, they can also move very slowly. 

“It depends how quickly the courts want it to be litigated. We know that when courts want to do things on an expedited basis, they certainly can. Look at Bush v. Gore or the Pentagon Papers case,” said Erwin Chemerinsky, a constitutional law professor at the University of California, Berkeley.

“On the other hand, look at the Emoluments Clause litigation that started on Jan. 23, 2017, and is still at the early stages,” he added.

It wasn’t until May that the 4th Circuit Court of Appeals ruled to allow a lawsuit based on the Emoluments Clause of the Constitution challenging the president’s ownership of Trump International Hotel on Pennsylvania Avenue.

Judges are often reluctant to intervene in such a high-profile constitutional battle between the White House and Congress so close to an election that could determine which party controls each branch of government. 

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Democrats are banking on Trump’s orders unraveling long before courts would rule them unconstitutional.

They predict the suspension of payroll taxes will fail to deliver any economic benefit because employers will continue to withhold those taxes from paychecks so that they have it on hand when the bill from the federal government finally becomes due.

While Trump has pledged to make it a permanent payroll tax cut if he’s reelected, employers are unlikely to roll the dice. 

“It is much more show than substance,” said Van Hollen. “He’s saying the employers can withhold the employee portion of payroll taxes through the end of December or not.”

“They are going to owe all that money back,” Van Hollen said, referring to workers. “We’re already hearing this from employers. Under the law, the employer is legally responsible for both the employer share and the employee share. So if at the end of the day that employee doesn’t pay it back to the system, the employer is on the line, which is a big disincentive.”

Traditionally, workers pay a 6.2 percent tax on wages that goes toward Social Security, which employers match by paying a 6.2 percent tax. However, if employees are allowed to keep their full wages without any being held back for Social Security, then the employer is on the hook to pay it all back to the government once the period of deferral expires.

Democrats argue Trump’s new unemployment benefit is equally problematic.

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Trump’s decision to pay unemployed workers $400 a week out of disaster relief funding — with $100 of that amount coming from states — would require the implementation of a new benefits system that could take months to get up and running. 

“It looks like an unemployment insurance benefit, it smells like one, but it’s absolutely not one. It’s a whole different program,” said Michele Evermore, senior policy analyst at the National Employment Law Project, a group that publishes research on workers issues.

“Because it’s not an unemployment insurance benefit, state [unemployment insurance] systems can’t pay it with their regular admin funding,” she said, adding “it will be a while” before states are able to set up the new program. 

For Democratic lawmakers, there’s the tricky question of who the courts will recognize as having proper legal standing to challenge Trump’s executive orders, which could further delay any legal fight. 

“It’s not completely clear how this would shape out. The Supreme Court has been skeptical about Congress coming in and suing about every little thing that bothers them,” said David A. Super, a constitutional law expert at Georgetown University. 

Super noted that the Supreme Court ruled against Congress having legal standing to challenge the line-item veto in 1997 in Raines v. Byrd, though it later ruled the practice unconstitutional in Clinton v. State of New York the following year, stemming from a lawsuit filed by hospitals and health care unions that were directly affected by the line-item veto. 

Super says successful suits against Trump’s executive orders are more likely to come from a state or private party. 

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“I think Congress is not particularly eager to be a litigant, and these things affect so many other people that in practice somebody else jumps into court,” he said.

The whole controversy may be moot if White House negotiators and congressional leaders find a way to reach a deal on a broader legislative package that would supplant Trump’s executive orders — although it’s unlikely that deal would include the suspension of payroll taxes that Trump ordered over the weekend. 

William Arnone, chief executive officer of the nonpartisan National Academy of Social Insurance, said groups are waiting for guidance from the Treasury Department on Trump’s instruction to suspend employee payroll taxes. 

“We’re looking at a whole different range of strategies,” he said. “I think the president himself said he expects to be in court on all of these executive orders because there’s still a bit of a question mark as to how far he can go.

“It’s still up in the air,” Arnone added.