Although our nation's billionaire owned legacy media outlets seem intent on portraying Donald Trump and Elon Musk's plans for a "Department of Government Efficiency" as an inevitability, the reality is that there is no basis in Federal Law for what they plan to do. Also, the defeatist notion, currently rampant across social media and repeated endlessly by a truly disappointing number of Democrats that "well Trump can just do whatever he wants and the courts are just going to rule however he wants them to anyway," is rampant anticipatory obedience that should be ignored, and never repeated again.
First off, it should be understood that at this point in time the "DOGE" organization is entirely imaginary. Under normal conditions, a government agency may only be established via an act of Congress. The establishment of said organization must include an agency charter, outlining exactly what the purpose of that agency is and how to achieve its goals, and a legal funding mechanism. Although no specifics have been firmly established, early comments from Trump and Musk suggest that the DOGE agency intends to run on an "eat what you kill" basis, where a portion of the funds impounded by Musk's imaginary agency would be diverted to cover the cost of operations and salaries. Such an approach is entirely illegal under Federal Law, and would amount to a violation of 18 U.S. Code § 641, and constitute a form of racketeering. The withholding of Federal Funds is a process known as "impoundment". The impoundment of funds allocated by Congress is specifically forbidden by a piece of legislation known as the Impoundment Control Act, which was written by Congress to cement their power of the purse following a 1974 Supreme Court case called Train v. City of New York. Train v City of New York was a case very similar to what Trump intends to do in that it involved the Nixon White House ordering administrators of a Federal plan not to disburse several billion dollars in funding for EPA programs. The Supreme Court ruled unanimously against the Nixon administration, declaring that the legislation authorizing EPA funding did not sufficiently establish that the President had discretion to withhold that funding. The most important part of the Train ruling was that it established that discretion over the impoundment of funds must be established via every piece of legislation, and may not be granted to the President on a carte blanche basis that would be unilaterally applied to all prior legislation.
Congressional authority over the power of the purse was further established by the ruling in Clinton v. City of New York, where the Clinton White House wanted to eliminate tax breaks that were being offered to some private entities as partial compensation for divesting of certain assets. The ruling from this case establishes several key points that would stand in the way of the DOGE organization functioning as Trump and Musk have claimed. First, the ruling in Clinton v. City of New York establishes that the future receipt of funds, either as a result of expected tax breaks or other government benefit constitutes a financial injury that establishes ripeness and standing for the purpose of bringing legal action. Presidential authority is limited by the Presentments clause of the US Constitution. In this case, that means that the President may not use the process of impoundment in a manner akin to a line item veto, and simply ignore and eliminate Congressional priorities on an arbitrary and capricious basis per the recommendation of a private sector entity that has no legitimate basis as a government agency. This is key as the cancellation function proposed by the creation of the DOGE mirrors that of the line item veto act that was ruled un-Constitutional in the Clinton case. The impoundment of funds as Trump and Musk are describing would constitute "an authority to effect the repeal of laws, for his own policy reasons, without observing Article I..." Clinton v. City of New York, 524 U.S. 417 (1998).
Additionally, Trump will not be able to claim Presidential immunity when he begins trying to use impoundment of funds as a means of lashing out against states whose governers he considers to be his political opponents. Absolute Presidential immunity only applies to "core Constitutional functions", and because impoundment of funds is an authority that may be ceded to the Executive Branch by Congress on the basis of individual pieces of legislation, and which has been declared to be a violation of Article I of the Constitution when it is granted to the President on a legislative basis, Trump's attempts at defunding states to satisfy personal animosity or partisan interest will clearly constitute a violation of the 14th Amendment requirement for equal treatment under the law for residents of those states, and constitute immediate grounds for legal action. Musk and Trump are not emperors, and cannot just withhold and redirect funds as they wish.
Many in the billionaire-owned legacy media have simply ignored the above arguments. This may be ascribed to either laziness and lack of investment in news gathering, or the fact that their billionaire owners are excited about Musk's promises of massive tax breaks as the fruit of government cost-cutting, and are hoping that by having their pundits insist that "the President has absolute immunity now, he can do whatever he wants," and that "well this is Trump's Supreme Court, they'll just do whatever he tells them to," they can foster a sense of resignation and inevitability that will pre-empt any serious efforts at challenging Trump's outrageous over-reach. It is time for more Americans to abandon the defeatism, and start digging in on ways to oppose Trump's abuses, while also holding mainstream media to task for their apparent complicity in Trump's anti-Constitutional goals.
An addenda to this piece: while I do complain about the "billionaire owned legacy media" in this article, I should note that there is one standout in that crowd, and that is Bloomberg.com. Bloomberg Congressional Reporter Stephen Dennis did an excellent article on this topic that appeared on the Bloomberg site just a few days ago.
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