Update: CBS News reported Tuesday morning that the Trump administration is dropping the $100 match from states, based on comments from White House economic advisor Larry Kudlow.

NEW: Trump economic adviser Larry Kudlow says WH is now going to eliminate state cost-sharing requirement to offer $300/wk in supplemental unemployment benefits … Kudlow says he believes all 50 states should be able to qualify for this new benefit, retroactive to Aug 1 …

— Steven Portnoy (@stevenportnoy) August 11, 2020

In the wake of Congress being able to hammer out a new deal over coronavirus aid, one of the orders President Trump signed over the weekend would provide $400 per week to the unemployed. Among the big questions coming out of that action: how would it work and can states afford it?

 The order, the president claimed, was tied to previous federally-funded pandemic-related unemployment aid that provided $600 per week each to more than 30 million unemployed.  Only $300 would be federally-funded. The last $100 was to come from the states, already severely cash-strapped due to the pandemic.

Colorado’s state budget for 2020-21 was cut by $3 billion in general funds, about 25% of the general fund budget. That included major cuts to K-12 education and higher education. In addition, the state’s unemployment insurance fund is nearing insolvency, although the state would still continue to pay out benefits. 

Trump intends to tap $44 billion from a Disaster Relief Fund that would normally cover disaster aid due to hurricanes, tornadoes and wildfires. The president’s memo states the funding will last until December, but the amount provided will cover only about five weeks. Once the DRF drops below $25 billion, the states are expected to pick up the rest of the cost, the memo states.

FEMA claimed Sunday that the aid would be distributed by each state’s unemployment insurance infrastructure, but Michele Evermore, a senior policy analyst at the National Employment Law Project, told USA Today that “states can’t use their current unemployment insurance infrastructure to pay a benefit that isn’t authorized by Congress.” That means that Colorado’s Department of Labor and Employment would have to set up a whole new system to distribute those dollars.

In a statement Monday, the state department of labor said, “We are still awaiting technical guidance from the US Department of Labor on options for implementation within the states. Among the executive order provisions is the expectation that states provide 25% of the additional $400 weekly benefit. Until more information is provided regarding financing and state options regarding the $100 state contribution, we are unable to comment on the viability of implementation of this assistance program within the state of Colorado. “

According to the department, 310,912 Coloradans filed for unemployment benefits for the week ending August 1, 2020. That $100 per person would cost the state $31.1 million per week. 

U.S. Rep. Joe Neguse of Lafayette said the executive orders place “undue burdens on states” to extend needed unemployment benefits, and threaten “the viability of Social Security in order to provide an inefficient and lackluster fix to the economic crisis. Senate Republicans must return to the negotiating table, so Congress can provide the American people the full relief they need.”

The order raises questions about legality, according to the Washington Post; the power of the purse is controlled by Congress. Only Congress can make changes to taxes or spending, although opinions vary about whether or not the DRF can be used for unemployment. The statute, according to law professor Daniel Hemel at the University of Chicago, appears to allow those funds to be used for any disaster, and COVID-19 would qualify.

Gov. Jared Polis said Monday afternoon that “there’s no way we could cover more than two or three weeks, tops” of that $100 per person match, due to budgetary constraints, and even that amount would be difficult. Polis suggested, however, that the plan could buy Congressional and White House negotiators more time to strike a deal on unemployment and other needed assistance. 

Others, including Speaker of the House Nancy Pelosi and Republican Sen. Ben Sasse of Nebraska, claim the orders issued over the weekend are unconstitutional. And a court challenge is likely, although Treasury Secretary Steve Mnuchin said Sunday on Fox News that the memos were approved by the Office of Legal Counsel. “If 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,” Mnuchin said.

In addition to the unemployment memo, the president signed a memo deferring — not canceling — payroll taxes for those who make less than $100,000 annually. Critics claim this will defund Social Security, and those taxes will still be due at some future date.

Sasse, in a statement Sunday, said “the pen-and-phone theory of executive lawmaking is unconstitutional slop. President Obama did not have the power to unilaterally rewrite immigration law with DACA, and President Trump does not have the power to unilaterally rewrite the payroll tax law. Under the Constitution, that power belongs to the American people acting through their members of Congress.”

Another memo defers student loan payments until the end of the year. And the fourth, an executive order on evictions, merely suggests that his cabinet “consider” whether evictions are necessary to deal with the pandemic. Critics say the order doesn’t actually do anything to stop them. The secretaries of health and human services and the treasury are also directed to look for money for housing assistance but none is promised.

Both Democratic and Republican governors have so far been non-committal about the unemployment aid. Ohio Gov. Mike DeWine, a Republican, while praising the president for “moving the ball forward,” could not say whether his state could afford. it. A spokesman for Maryland’s Republican Gov. Larry Hogan, who has been critical of Trump’s handling of the pandemic, had a response similar to the one from Colorado’s DOLE, stating he would wait for federal guidance.

Democratic governors in Virginia, Pennsylvania and Louisiana said they were still reviewing the order.

A statement Monday afternoon from the National Governors Association sided with governors who question whether they can afford the $100 per person in unemployment funds. 

“The best way forward is for the Congress and the Administration to get back to the negotiating table and come up with a workable solution, which should provide meaningful additional relief for American families,” said the statement, issued by NGA chair Gov. Andrew Cuomo of New York and vice-chair Gov. Asa Hutchinson of Arkansas. “NGA has requested $500 billion in unrestricted state aid and NGA continues to urge Congress and the White House to reach a quick resolution to provide immediate assistance to unemployed Americans. This resolution should avoid new administrative and fiscal burdens on states. It is essential that our federal partners work together to find common ground to help restore our nation’s health and protect our economy.”