April 3, 2020
President Donald Trump reportedly wants his signature to appear on taxpayer funded checks sent to Americans as part of the largest stimulus package in US history. Under normal circumstances, a check like this would bear the signature of a civil servant, but few things about this administration have been normal. This deviation from standard procedure, as well as the president’s prior conduct, raises questions about why he would upend the government’s routine practice during a global pandemic. There are both significant legal questions regarding whether the President can have his personal signature on these coronavirus stimulus checks, and certainly reasons why it is inadvisable.
Even the most basic fact about the coronavirus stimulus payments is more complicated than it seems: whether eligible recipients will get checks at all. Our national dialogue has routinely referred to them as checks, but it is likely that most will be direct, electronic deposits. The government already has many taxpayers’ direct deposit information, so if President Trump wants his signature on physical checks, he may be demanding an unnecessary cost to taxpayers. The Treasury Department is generally required to make federal payments by electronic funds transfer. This policy, however, does not apply to the coronavirus stimulus payments. The Internal Revenue Service (IRS) has advised eligible people who filed their 2019 or 2018 tax returns, that “payment will be deposited directly into the same banking account reflected on the return filed.” For eligible individuals that do not have direct deposit information on file with the IRS, the Department “plans to develop a web-based portal for individuals to provide their banking information to the IRS online, so that individuals can receive payments immediately as opposed to checks in the mail.” Despite the fact that a sizable portion of eligible recipients won’t receive a stimulus “check” it appears the President still desires to literally put his name on payments to others.
President Trump affixing his signature to coronavirus stimulus checks is legally dubious and highly impractical for several reasons. First, it would require the Treasury Department to deviate from its normal practice and potentially change its internal directives. Federal bureaucrats known as “disbursing officers” normally sign checks like these. Specifically, Treasury Directive 16-23 states that the Chief Disbursing Officer, or a disbursing officer under her “control and supervision” to whom she has delegated her power, signs “checks drawn against all accounts of the Secretary of the Treasury.” Although the Commissioner of the Bureau of Fiscal Service can make “officers and employees of…other executive agencies…disbursing officials,” it does not appear that she can delegate the authority to sign treasury checks to the President.
Ironically, the Trump administration has already argued that the White House is not an executive agency in order to get out of complying with ethics laws. On the first day of the Trump presidency, the Department of Justice Office of Legal Counsel (OLC) issued an opinion on nepotism, concluding that “the White House Office is not an ‘Executive agency’ insofar as the laws on employment and compensation are concerned.” This decision reversed long-standing precedent and paved the way for President Trump to hire his daughter and son-in-law as West Wing employees despite federal laws barring nepotism in the executive branch hiring.
In the case of the stimulus checks, there still may be a question about whether the White House is an “executive agency” under the disbursing officer statute, and whether the Treasury Department has previously delegated authority to someone employed in the White House to act as a disbursing officer. Either way, in order to fulfill the President’s wish to sign the checks himself, the Treasury Department would likely need to do legal research and consult with OLC to determine whether it can legally delegate signature authority to the President, and if so, how. OLC’s January 20, 2017 opinion regarding federal nepotism laws could certainly be used to undermine any argument that the White House is now an “executive agency.”
Even if the Trump administration finds a legal argument to justify the President putting his signature on coronavirus stimulus checks, doing so suggests that Trump is using government funds to address a global crisis to also boost his political fortunes. Unfortunately, this president has routinely blurred the lines between public and private ventures to benefit his interests, especially as he faces re-election in 2020. In February, at the State of the Union Address, President Trump declared that a student in attendance would receive an “opportunity scholarship” to attend the school of her choice. While the President’s suggestion was that this young woman would benefit from a government program, the next day we learned that this scholarship was being personally paid for by Education Secretary Betsey DeVos. Then there is the spectacle of the President’s press conferences to mark the donation of his salary to the government, donations which are easily matched by the taxpayer funds spent at or promoting his properties. The President has also paid millions of dollars in fines for misusing his taxpayer-subsidized charitable foundation. Allowing him to put his signature on these stimulus checks will enable him to treat taxpayer funds allocated to address a global pandemic as charity to American voters, just months before a presidential election.
Even more troubling than the political optics associated with the President’s reported desire to sign stimulus checks is that pursuing this course of action could delay federal funds getting to those that desperately need them. Designating President Trump as a signatory on these checks would likely require changing current Treasury Department directives, which necessitate obtaining input from various offices within the Department and a rigorous legal review. In addition, once those directives were changed that would not be the end of the logistical hurdles. He would also likely need to comply with Treasury Department regulations surrounding signatures in the Treasury Financial Manual, which require a thorough letter before facsimile signatures can be used, establish procedures for submitting manual and facsimile signatures, and require uniformity and updates if signatures change. The statute authorizing delegation of signature authority for disbursing officers requires such delegations serve “economy and efficiency.” Sending people checks bearing even the president’s digital signature also creates the possibility that some will keep them as memorabilia despite needing the funds. Given the current public health and economic crisis, it is difficult to imagine any reasons why adding the President of the United States as a signatory meets these aims.
The President has routinely shown that he is willing to put his personal, political, and financial interests ahead of his duties as President of the United States. Still, demanding that his signature be affixed to coronavirus stimulus checks would certainly stand out among the lowlights of President Trump’s legally questionable and self-interested conduct.
Charles Tracy also contributed to this post.