Power to the People

Back to School

My Democratic friends have all said it: “Isn’t what Musk’s doing illegal?   Why don’t they just arrest him!” And they’re not altogether wrong.  So here’s the answer they’ve been waiting for:  DOGE and their actions might be illegal, or maybe not.  And there’s a second issue, that sounds like a Buddhist meditation question. If a crime is committed and nobody cares, is it really a crime?

Let’s go back to “Schoolhouse Rock” government.  The vast Madisonian Plan for American Democracy was based on balancing alternate ambitions and powers within the government.   There are the powers of the states versus the powers of the federal government.  There are the powers of the legislature, the Congress, balanced against the power of the Judiciary (Courts) and the power of the Executive (the President).  There’s the internal balance of the House and the Senate.  And, finally, there is the seldom mentioned Tenth Amendment to the Constitution:

“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”  

It’s that old Sixty’s line:  power to the people!!!!

Madison saw the people as the ultimate check and balance on American governments.

Nuts and Bolts

More specifically, Article I of the Constitution grants all the legislative powers, the power to do things, to the US Congress.  Section 8 list a vast array where Congress is given authority to legislate. That includes number 18, the “elastic clause”.  It states that Congress shall have the power to pass laws “necessary and proper” to enforce the other powers.

If you ask a highly motivated eighth grader, they will tell you the Congress has the most power in the US Government.   The document grants most of the powers to Congress. And perhaps even more importantly, it gives Congress the ultimate power:  the “power of the purse”.  Congress not only  needs to pass a law to do something, but it has to pass a second law to fund the first law.

Dam Bill

I used to give a lecture called the “Dam Bill”. (It caught the kids attention right away, they got to say “Dam” over and over again!)    There’s a river that needs a dam; how does Congress address that concern?  Well, a member introduces a bill into Congress, the Dam Bill.  Congress investigates what needs to be done, how to do it, and how much it will cost; by holding Dam hearings in  Dam committees.  Then after all of that, the Dam Bill comes on the floor of the Congress (House/Senate) for a Dam debate.  And, if a majority agrees, the Dam Bill is sent to the President.  When he signs it, it becomes a Dam law.

But there needs to be a whole second dam debate and vote in Congress, because to build a dam, you need dam money.   So there’s a process to pass a Dam Money Bill, that also is investigated, debated, voted on and sent to the President.  In the end there’s a Dam Law, and a Dam Money Law.  That’s the whole Dam story!

Dam Builder

But once the laws are passed, who builds the dam?  It is the job, the Constitutional Article II  authority of the President to carry out the laws. So he/she has to arrange to get the dam job done.  Theoretically the President will follow the wishes of Congress; the Dam Law, and spend the Dam money they way that Congress intended.  But what if he doesn’t?  What if the President chooses not to build a dam, or wants to spend the dam money to build a Wall (somewhere) instead of the dam?

Congress addressed that issue in a law called the “Impoundment Act of 1974”. It requires the President to report “impoundments” (sounds like a dam thing, right?) of money authorized by Congress and abide by Congressional decisions.  Basically it calls on the President to spend the way Congress intended. But there’s a lot of loopholes (holes in the dam) that give the President greater authority than you’d think the Founding Fathers intended.

Ok, enough of the dam stuff.   But here’s the point:  the President can usually do only what Congress passed by law.  And if the President goes against Congressional wishes, then Congress has a couple of alternatives.

Balances

First, they can go to the third branch, the Courts, to order the President to obey the (dam) law.   The judiciary was always considered the impartial “arbiter” of the Constitution and the law.  And recently, the US Supreme Court has pushed back against Presidential actions that go beyond Congressional law.  Joe Biden was stymied on environmental regulations and student loan relief when the Court decided that Congress’s laws didn’t grant him the authority to do what he wanted to do.  

And the Courts have even gone farther, suggesting that Congress has granted the President too much authority to create “regulations”, specific rules like loan repayments and voting regulations.   The Court told Congress to pass the specific regulations themselves.

So the Madisonian “checks and balances” worked fine (I guess) against the Biden Presidency.   Not only was their “checks”, but there was a balance of political philosophy; the Congress (and Court) on one side, and the Presidency on the other.

Congress

And, of course, Congress has the ultimate authority, the ability to remove the President from office for “high crimes and misdemeanors”.   Certainly refusing to abide by the laws passed by Congress, or ignoring judgments of the US Courts would be considered a “crime” (breaking the law, literally) and fall under the “impeach and convict” power.  The problem with that:  a majority of the House has to agree to impeach (indict) the President to the Senate. Then,  a two-thirds majority of the Senate is required to convict and remove him from office. 

 As we saw in the first Trump Administration and the two impeachment trials, there’s not much that two-thirds of the US Senate agree on. Even while a majority of Senators wanted to convict Trump, it never got close to the overwhelming majority required to remove him from office.

And one last concern:  if the Courts ordered the President to do something, how could they make him do it?  There is no “judicial police” in America, no “Court Army”.  All of those enforcement mechanisms are in the executive branch, theoretically at the order and control of the President.  And with the “unitary President” theory of the MAGA-Republicans, there is no “independent Justice Department” (unlike Biden’s view of Merrick Garland).  No Trump-era FBI agent is going to the White House (or Mar-A-Lago) door and putting handcuffs on him.  

Unitary President

The Trump MAGA-theorists see the President as the direct “commander” of all members of the executive branch of government.   So if the President brings in a group to “takeover” an agency of government, say the USAID or the Consumer Protection Bureau or the Department of Education, they can “do what they want”.  This theory would say that the illegitimate DOGE (Department of Government Efficiency, not ever passed by Congress in a “damn” law), is simply an extension of the authority of the President to run his “branch”.   As Vice President JD Vance said this weekend:  “Judges aren’t allowed to control the executive’s legitimate power”. 

So, ignoring the whole “Department of thing”, Trump could claim the Elon Musk and his band of whiz-kids are an extension of the “management duty” of the executive, a legitimate power.   DOGE is simply a part of the existing Office of Management and Budget, already created by law.  

Standing Up

Can Congress stand up to the President?  Sure they can, but it requires a majority of House and the Senate to do so. Clearly the Republican-MAGA party is just as subordinate to Donald Trump as the those red-hatted Trump rally attendees.  Since Republicans hold narrow majorities in both Houses, it isn’t going to happen there.

Can the Courts stand up to the President?   Sure they can, and some already are.  But there are two “provisos”.  First, if a case is brought before a District Federal Court, that decision can go all the way to the US Supreme Court.  That’s the same Court that granted the President blanket criminal immunity from any “official” act he takes as President.  So it’s an open question if the Supreme Court would stand up to Donald Trump’s firehose of questionable power grabs.  

And even if they did, would Trump follow their decision?   The current President is well-known for his admiration of President Andrew Jackson. He’s the one that executed the Indian Removal Act, and pushed the eastern tribes into Oklahoma and the West.  The Supreme Court, led by Chief Justice John Marshall, ordered him to stop moving the Cherokee out of Georgia and Tennessee, in what we now call the “Trail of Tears”.  Jackson responded:  “Marshall made his decision, now let him enforce it”, and continued the removal.

Bottom Line

If Congress won’t stand up for its own power, the Supreme Court may not either.  And even if the Supreme Court does, there’s no assurance that the Trump Administration would obey.  Which returns us to the 10^th Amendment:  the ultimate power of American Democracy isn’t in the Madisonian Democracy.  It’s with the people.  

We, collectively, will make the decision what our Government looks like.   We, collectively, already allowed this MAGA-Republican philosophy to gain control.  So we, collectively, may be required to change our minds.  It’s up to us.

Power to the People.  And, as Madison might add, may they use it wisely.