My Democratic friends have all said it: \u201cIsn\u2019t what Musk\u2019s doing illegal?\u00a0 \u00a0Why don\u2019t they just arrest him!\u201d And they\u2019re not altogether wrong.\u00a0\u00a0So here\u2019s the answer they\u2019ve been waiting for:\u00a0\u00a0DOGE and their actions might be illegal, or maybe not.\u00a0\u00a0And there\u2019s a second issue, that sounds like a Buddhist meditation question.\u00a0If a crime is committed and nobody cares, is it really a crime?<\/p>\n\n\n\n
Let\u2019s go back to \u201cSchoolhouse Rock\u201d government.\u00a0\u00a0The vast Madisonian Plan for American Democracy was based on balancing alternate ambitions and powers within the government.\u00a0 \u00a0There are the powers of the states versus the powers of the federal government.\u00a0\u00a0There are the powers of the legislature, the Congress, balanced against the power of the Judiciary (Courts) and the power of the Executive (the President).\u00a0 There’s the internal balance of the House and the Senate. \u00a0And, finally, there is the seldom mentioned Tenth Amendment to the Constitution:<\/p>\n\n\n\n
\u201cThe 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.\u201d<\/em> <\/p>\n\n\n\n It\u2019s that old Sixty\u2019s line: power to the people!!!!<\/p>\n\n\n\n Madison saw the people as the ultimate check and balance on American governments.<\/p>\n\n\n\n More specifically, Article I of the Constitution grants all the legislative powers, the power to do things, to the US Congress.\u00a0 Section 8 list a vast array where Congress is given authority to legislate. That includes number 18, the \u201celastic clause\u201d.\u00a0\u00a0It states that Congress shall have the power to pass laws \u201cnecessary and proper\u201d to enforce the other powers.<\/p>\n\n\n\n If you ask a highly motivated eighth grader, they will tell you the Congress has the most power in the US Government. \u00a0\u00a0The document grants most of the powers to Congress. And perhaps even more importantly, it gives Congress the ultimate power:\u00a0\u00a0the \u201cpower of the purse\u201d.\u00a0\u00a0Congress not only\u00a0\u00a0needs to pass a law to do something, but it has to pass a second law to fund the first law.<\/p>\n\n\n\n I used to give a lecture called the \u201cDam<\/strong> Bill\u201d. (It caught the kids attention right away, they got to say \u201cDam<\/strong>\u201d over and over again!)\u00a0\u00a0\u00a0 There\u2019s a river that needs a dam<\/strong>; how does Congress address that concern?\u00a0\u00a0Well, a member introduces a bill into Congress, the Dam<\/strong> Bill.\u00a0\u00a0Congress investigates what needs to be done, how to do it, and how much it will cost; by holding Dam<\/strong> hearings in\u00a0\u00a0Dam<\/strong> committees.\u00a0\u00a0Then after all of that, the Dam<\/strong> Bill comes on the floor of the Congress (House\/Senate) for a Dam<\/strong> debate.\u00a0\u00a0And, if a majority agrees, the Dam <\/strong>Bill is sent to the President.\u00a0\u00a0When he signs it, it becomes a Dam<\/strong> law.<\/p>\n\n\n\n But there needs to be a whole second dam debate and vote in Congress, because to build a dam<\/strong>, you need dam<\/strong> money.\u00a0 \u00a0So there\u2019s a process to pass a Dam<\/strong> Money Bill, that also is investigated, debated, voted on and sent to the President.\u00a0\u00a0In the end there\u2019s a Dam<\/strong> Law, and a Dam<\/strong> Money Law.\u00a0\u00a0That\u2019s the whole Dam<\/strong> story!<\/p>\n\n\n\n But once the laws are passed, who builds the dam<\/strong>?\u00a0\u00a0It is the job, the Constitutional Article II\u00a0\u00a0authority of the President to carry out the laws. So he\/she has to arrange to get the dam<\/strong> job done.\u00a0\u00a0Theoretically the President will follow the wishes of Congress; the Dam<\/strong> Law, and spend the Dam<\/strong> money they way that Congress intended.\u00a0\u00a0But what if he doesn\u2019t?\u00a0\u00a0What if the President chooses not to build a dam<\/strong>, or wants to spend the dam<\/strong> money to build a Wall (somewhere) instead of the dam<\/strong>?<\/p>\n\n\n\n Congress addressed that issue in a law called the \u201cImpoundment Act of 1974\u201d. It requires the President to report \u201cimpoundments\u201d (sounds like a dam thing, right?) of money authorized by Congress and abide by Congressional decisions.\u00a0\u00a0Basically it calls on the President to spend the way Congress intended. But there\u2019s a lot of loopholes (holes in the dam) that give the President greater authority than you\u2019d think the Founding Fathers intended.<\/p>\n\n\n\n Ok, enough of the dam<\/strong> stuff.\u00a0 \u00a0But here\u2019s the point:\u00a0\u00a0the President can usually do only what Congress passed by law.\u00a0\u00a0And if the President goes against Congressional wishes, then Congress has a couple of alternatives.<\/p>\n\n\n\n First, they can go to the third branch, the Courts, to order the President to obey the (dam<\/strong>) law.\u00a0 \u00a0The judiciary was always considered the impartial \u201carbiter\u201d of the Constitution and the law.\u00a0\u00a0And recently, the US Supreme Court has pushed back against Presidential actions that go beyond Congressional law.\u00a0\u00a0Joe Biden was stymied on environmental regulations and student loan relief when the Court decided that Congress\u2019s laws didn\u2019t grant him the authority to do what he wanted to do.\u00a0\u00a0<\/p>\n\n\n\n And the Courts have even gone farther, suggesting that Congress has granted the President too much authority to create \u201cregulations\u201d, specific rules like loan repayments and voting regulations.\u00a0\u00a0 The Court told Congress to pass the specific regulations themselves.<\/p>\n\n\n\n So the Madisonian \u201cchecks and balances\u201d worked fine (I guess) against the Biden Presidency.\u00a0 \u00a0Not only was their \u201cchecks\u201d, but there was a balance of political philosophy; the Congress (and Court) on one side, and the Presidency on the other.<\/p>\n\n\n\n And, of course, Congress has the ultimate authority, the ability to remove the President from office for \u201chigh crimes and misdemeanors\u201d.\u00a0\u00a0 Certainly refusing to abide by the laws passed by Congress, or ignoring judgments of the US Courts would be considered a \u201ccrime\u201d (breaking the law, literally) and fall under the \u201cimpeach and convict\u201d power.\u00a0\u00a0The problem with that:\u00a0\u00a0a majority of the House has to agree to impeach (indict) the President to the Senate. Then,\u00a0\u00a0a two-thirds majority of the Senate is required to convict and remove him from office.\u00a0<\/p>\n\n\n\n \u00a0As we saw in the first Trump Administration and the two impeachment trials, there\u2019s not much that two-thirds of the US Senate agree on.\u00a0Even while a majority of Senators wanted to convict Trump, it never got close to the overwhelming majority required to remove him from office.<\/p>\n\n\n\n And one last concern:\u00a0\u00a0if the Courts ordered the President to do something, how could they make him do it?\u00a0 There is no \u201cjudicial police\u201d in America, no \u201cCourt Army\u201d.\u00a0\u00a0All of those enforcement mechanisms are in the executive branch, theoretically at the order and control of the President.\u00a0\u00a0And with the \u201cunitary President\u201d theory of the MAGA-Republicans, there is no \u201cindependent Justice Department\u201d (unlike Biden\u2019s view of Merrick Garland).\u00a0\u00a0No Trump-era FBI agent is going to the White House (or Mar-A-Lago) door and putting handcuffs on him.\u00a0\u00a0<\/p>\n\n\n\n The Trump MAGA-theorists see the President as the direct \u201ccommander\u201d of all members of the executive branch of government.\u00a0\u00a0 So if the President brings in a group to \u201ctakeover\u201d an agency of government, say the USAID or the Consumer Protection Bureau or the Department of Education, they can \u201cdo what they want\u201d.\u00a0\u00a0This theory would say that the illegitimate DOGE (Department of Government Efficiency, not ever passed by Congress in a \u201cdamn\u201d law), is simply an extension of the authority of the President to run his \u201cbranch\u201d.\u00a0\u00a0\u00a0As Vice President JD Vance said this weekend:\u00a0\u00a0“Judges aren’t allowed to control the executive’s legitimate power”.\u00a0<\/p>\n\n\n\n So, ignoring the whole \u201cDepartment of thing\u201d, Trump could claim the Elon Musk and his band of whiz-kids are an extension of the \u201cmanagement duty\u201d of the executive, a legitimate power. \u00a0\u00a0DOGE is simply a part of the existing Office of Management and Budget, already created by law.\u00a0\u00a0<\/p>\n\n\n\n Can Congress stand up to the President?\u00a0\u00a0Sure 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.\u00a0\u00a0Since Republicans hold narrow majorities in both Houses, it isn\u2019t going to happen there.<\/p>\n\n\n\n Can the Courts stand up to the President?\u00a0\u00a0 Sure they can, and some already are.\u00a0\u00a0But there are two \u201cprovisos\u201d.\u00a0\u00a0First, if a case is brought before a District Federal Court, that decision can go all the way to the US Supreme Court.\u00a0\u00a0That\u2019s the same Court that granted the President blanket criminal immunity from any \u201cofficial\u201d act he takes as President.\u00a0\u00a0So it\u2019s an open question if the Supreme Court would stand up to Donald Trump\u2019s firehose of questionable power grabs.\u00a0\u00a0<\/p>\n\n\n\n And even if they did, would Trump follow their decision?\u00a0\u00a0 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.\u00a0\u00a0The 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 \u201cTrail of Tears\u201d.\u00a0\u00a0Jackson responded:\u00a0\u00a0\u201cMarshall made his decision, now let him enforce it\u201d, and continued the removal.<\/p>\n\n\n\nNuts and Bolts<\/h3>\n\n\n\n
Dam Bill<\/h3>\n\n\n\n
Dam Builder<\/h3>\n\n\n\n
Balances<\/h3>\n\n\n\n
Congress<\/h3>\n\n\n\n
Unitary President<\/h3>\n\n\n\n
Standing Up<\/h3>\n\n\n\n
Bottom Line<\/h3>\n\n\n\n