Could You Get A Second Stimulus Check By Executive Order?


US President Donald Trump signs executive orders extending coronavirus economic relief, during a … [+] news conference in Bedminster, New Jersey, on August 8, 2020. (Photo by JIM WATSON / AFP) (Photo by JIM WATSON/AFP via Getty Images)

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You may have heard that President Trump signed a series of executive orders yesterday and wondering if a second stimulus check was one of them.

Technically, it wasn’t.

He signed one executive order and three executive memorandums covering additional unemployment insurance benefits, a payroll tax holiday, student loan forbearance, and an eviction moratorium.

The payroll tax holiday would let working Americans keep more of their paychecks but it was not a lump-sum $1,200 stimulus check.

But this led to many wondering – is it possible that he could sign an order issuing a second stimulus check?

No, but the payroll tax holiday is the closest thing he could do. I’ll explain why.

President Trump, during the news conference, referred to the executive orders as “acts” but executive orders and memorandums are not laws. A “bill” that is passed into law is called an “act” but executive orders are not “acts.”

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They are more like official instructions.

Article II of the Constitution gives the President the authority to run the Executive Branch and two of the tools at his disposal are executive orders and memorandums.

Does this mean he could just instruct the Treasury Department to pay everyone a second stimulus check?

No, because every executive order can be challenged in a court of law and there are numerous ways an instruction like this would be challenged. If you recall, President Trump instituted a travel ban in 2017 through executive order and was immediately challenged. The orders he signed yesterday are almost guaranteed to face this type of scrutiny in the coming weeks.

The first $1,200 stimulus check, created by the Cares Act, was an advance on a newly-created refundable tax credit. The Cares Act did this by amending existing tax law, specifically the Internal Revenue Code of 1986.

The United States Constitution, in Article I, Section 8, gives Congress the power to “lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defense and general welfare of the United States.” This is known as the Taxing and Spending Clause of the Constitution and it grants Congress, not the President, the authority over taxes.

Any executive order that encroached on this authority would be challenged in court. Also, simply ordering the Treasury to start sending out checks would almost certainly be struck down for the same reason.

This is one possible reason that yesterday’s “Memorandum on Deferring Payroll Tax Obligations in Light of the Ongoing COVID-19 Disaster” was structured not as a waiver of payroll tax but a “deferring” of payroll tax.

I see the payroll tax as the President’s attempt to create a stimulus check in the only way he can – by deferring the collection of payroll taxes.

The memorandum instructs the Secretary of the Treasury to “defer the withholding, deposit, and payment of the [payroll] tax” from September 1st, 2020 through December 31st, 2020. This applied to employees who earn less than $4,000 every two weeks or its equivalent.

If you notice the language, it’s very specific.

Additionally, he’s instructing the Secretary of the Treasury to “explore avenues, including legislation, to eliminate the obligation to pay the taxes deferred pursuant to the implementation of this memorandum.”

He hasn’t changed or challenged the payroll tax – he’s just told the Treasury Department to stop collecting it for a little while.

If you recall, President Obama also had a payroll tax cut as a means of economic stimulus back in 2012. But in his case, he did so by signing The Middle Class Tax Relief and Job Creation Act of 2012 and not by executive order. Congress was involved in that payroll tax cut, whereas they were not involved in Trump’s order.

So, if you are waiting on a second stimulus check, the only way you’ll see one is whenever Congress is able to come to an agreement and pass the next stimulus package.

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