Comment: Musk's DOGE plans can't dodge Constitution

[Yo_Mama_Been_Loggin]

By Noah Feldman / Bloomberg Opinion

The plans for the Department of Government Efficiency laid out by Elon Musk and Vivek Ramaswamy are so riddled with legal problems that a law professor in exam season could save a lot of time by using their recent Wall Street Journal op-ed as the fact pattern: All you’d have to do would be to ask students to identify the constitutional flaws.

The looming conflicts of interest are the low-hanging fruit. The promises to roll back existing federal regulations by executive fiat, then fire the civil servants who administer the rules, grossly misrepresent how the regulatory process and civil service protections work under federal statutes.

But the pièce de resistance is the idea that the president can simply choose not to spend money that Congress has appropriated and directed the executive to disburse. This absurd notion violates the basic text of the Constitution, which gives Congress the power of the purse. It violates a federal statute, the Impoundment Control Act of 1974, which Congress passed when Richard Nixon tried to hold back money appropriated by Congress. It violates Supreme Court precedent going back to 1975. Oh, and did I mention? It’s also a terrible idea.

Musk and Ramaswamy (or their ghostwriters) actually know that it would be unlawful and unconstitutional for President-elect Donald Trump to withhold money that Congress has directed the president to spend. (Ramaswamy went to Yale Law School, so if he doesn’t know, he should.) Their position is that “Trump has previously suggested that (the ICA) is unconstitutional, and we believe the current Supreme Court would likely side with him on this question.” Trump is wrong about the constitutionality of the law and also wrong, I believe, about what the Supreme Court would say.

https://www.heraldnet.com/opinion/comment-musks-doge-plans-cant-dodge-constitution/

[50 Shades Of Blue]

1. But Trump's SCOTUS can.

[Mike 03]

2. This is the thing...

I obviously hope that editorial is right. But did Hungary, Poland, Brazil and the Philippines have constitutions? How many things that Orban, Bolsonaro and Duterte managed to accomplish in relatively short order did legal experts in those countries say were "impossible" or "nearly impossible"?

I hope to god that the people saying he can't do these things are right. We'll find out soon enough.

[Skittles]

3. LOL

Trump TRIED TO OVERTHROW THE GOVERNMENT and now he will PRESIDENT again

ALL BETS ARE *OFF*

[Mike 03]

4. I wish we knew for certain what the president's

so-called "Secret Emergency Powers" are. Didn't Trump, during an unguarded moment during his first term, make some statement that (paraphrasing) the president has powers nobody even knows about, implying they are extraordinary.

As one recent government document describes them, they are designed “to implement extraordinary presidential authority in response to extraordinary situations.”

PEADs are classified “secret,” and no PEAD has ever been declassified or leaked. Indeed, it appears that they are not even subject to congressional oversight. Although the law requires the executive branch to report even the most sensitive covert military and intelligence operations to at least some members of Congress, there is no such disclosure requirement for PEADs, and no evidence that the documents have ever been shared with relevant congressional committees.

https://www.brennancenter.org/our-work/research-reports/presidential-emergency-action-documents

One of the powers I'm most worried about would be the power, after declaring an arbitrary emergency, to dissolve congress altogether and unilaterally make decisions via executive order.

Another would be the power to redefine the majority needed in the House and Senate to make important legislation that would normally require 2/3 approval.

I don't know the answer to this question, but I ask it because it has been a very popular technique among autocrats: Can he lengthen the term of the presidency from 4 to 6 years? Can he do it with simple majorities in the House and Senate? (Likewise, can he maneuver in such a way that he is eligible to run for a third term?)

[alarimer]

5. In a just world, Musk would have to divest himself of all his companies

Before serving on this committee or in any government capacity.