Is Trump's Unemployment Extension Constitutional?

By Ashley Ravid on August 13, 2020

Although more unemployment relief is desperately needed by millions across the country, and a second stimulus check package has yet to be approved, President Trump's announcement of a new unemployment extension might not be all that plausible.

$400 of Hypothetical Relief

House Democrats previously passed the HEROES Act, which would have provided an additional $600 a week in unemployment benefits for the rest of 2020. But Republicans in Congress had their own idea: the HEALS Act, which would provide an additional $200 a week through September until a partial wage-replacement program would kick in in October.

President Trump appeared to settle for a middle ground when he signed a memorandum Saturday that would provide an additional $400 weekly to Americans qualifying for unemployment assistance until early December or when allocated funding runs out.

The memorandum describes the United States as being in a "national emergency" during the COVID-19 pandemic. Though presidents do generally receive greater powers during times of war or national distress, the type of spending program that Trump describes in his latest executive memorandum is traditionally only a power granted to Congress. Does Trump's $400 unemployment extension violate the Constitution?

Even Trump Doesn't Seem Confident

The President himself acknowledged that his executive order will be considered problematic by many. "Probably we'll get sued," he said.

In Trump's memorandum, he declared that $300 of the $400 would come from federal funding, while the remainder would be provided by the states. The funds in question — up to $45 billion — would come from the Department of Homeland Security's Disaster Relief Fund.

Article I, Section 8 of the Constitution grants Congress alone the power to spend federal funds. This leaves President Trump's prospective executive order open to heavy legal scrutiny, though it is still unclear whether any suit will be brought against Trump's memo.

The programs that would need to be mobilized in order to distribute this unemployment money, however, will take time to become operational, leaving plenty of time for challenges to arise against the President's memorandum. As with many of Trump's policies, only time will tell whether this unemployment extension will come to fruition or fizzle out under legal challenges.

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