Beneath the Surface

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We are now three weeks into the second Trump presidency, and I have been trying to organize my thoughts about the firehose of executive orders spewing out from the new administration. I will focus on two of the things that bother me most.

The first is that many of the executive orders and actions are arguably illegal, and those arguments are being made in court.  Often that is because they appear to violate the separation of powers between the executive and legislative branches of government mandated by the Constitution. My second concern is that the President is trying to market many of his most radical measures as exercises in government efficiency, an appealing but misleading notion. In practice, they seem more about getting rid of programs and agencies that Donald Trump and Elon Musk do not like. Musk’s Department of Government Efficiency (DOGE), itself created by executive order rather than by Congressional legislation, might be more accurately named the Department of Government Obstruction.

Beyond the law

Article I of the U.S. Constitution clearly gives Congress the sole authority to levy taxes and approve expenditures. No money can be spent without congressional approval, and approved funds must be spent as Congress directs. Spending money the way Congress intended is part of the President’s responsibility to “take care that the laws be faithfully executed” (Article II, Section 3).

The Congressional Budget and Impoundment Control Act of 1974 reaffirmed Congress’s budgetary control, after President Nixon tried to impound some funds Congress had allocated. The law did leave the President a little wiggle room by allowing some temporary pauses in spending under special circumstances. But even then, the President must report to Congress and give it an opportunity to weigh in.

Shutting down an entire agency by executive action appears to exceed the President’s legal authority, let alone the authority of an unelected and congressionally unapproved associate like Elon Musk. The Agency for International Development was created by Congress over 60 years ago and has been funded with bipartisan support ever since. It has saved millions of lives by fighting hunger and disease around the world. It has also built enormous good will for our country and helped American farmers by buying and distributing their products. Something is very wrong when a president can destroy in a few days what took decades to develop, and do it without so much as a congressional hearing.

Musk has already announced the death of two other federal entities, the Department of Education and the Consumer Financial Protection Bureau. The Education Department provides financial assistance to underfunded schools, funds much of the country’s special education, and administers the student loan program, among other things. The CFPB has saved consumers billions of dollars by cracking down on shady business practices, such as hidden fees imposed by banks.

Of course, we should not be too surprised if a president with a history of indictments and one multicount felony conviction tries to run a lawless administration. During his campaign, Trump talked about being a dictator, and voters should have taken him seriously.

In the name of efficiency

President Trump and his supporters have tried to pass off the most destructive executive decisions as a normal quest for government efficiency. Here is how House Speaker Mike Johnson defended the USAID spending freeze at a recent press conference:

There’s a gross overreaction in the media to what’s happening. The executive branch of government in our system has the right to evaluate how executive branch agencies are operating. It’s not a power grab. That’s what they’re doing—by putting a pause on some of these agencies and by evaluating them, by doing these internal audits. That is a long overdue, much welcome development. We don’t see this as a threat to Article I at all. We see this as an active, engaged, committed executive branch authority doing what the executive branch should do.

Is the aim here really “to evaluate how executive branch agencies are operating,” or is it to impede their operation, maybe permanently? Sending USAID workers home, shutting down the headquarters, taking down the website, and even taking the name off the building are a strange way of evaluating an operation. Would a private company shut down all its production and sales if it intended to remain in business? I thought Republicans wanted federal agencies to run more like businesses; not go out of business!

Efficiency is about getting the best ratio of benefits to costs. Improving efficiency by increasing benefits and/or cutting costs is a challenging task. If taken seriously, it requires working within agencies to find ways of doing things better but less expensively. Sometimes it requires large short-term investments for the sake of long-term payoffs, as when an agency replaces antiquated technology.

We are not hearing much about improving government operations, just cutting them. But cutting costs without regard to the impact on results is not efficient. Consider the President’s “Deferred Resignation” plan, where federal employees can resign now but keep getting their pay and benefits for another seven months. It makes no distinction between the most qualified, productive workers and the least. Is it efficient to pay good workers to leave instead of paying them to keep working? Is it efficient to hire a new worker to do a job, while still paying the old worker not to do the same job? Just getting rid of as many workers as possible appeals to antigovernment ideologues who have trouble imagining federal employees as good workers doing anything important.

Much of the work of Musk’s Department of Government Efficiency is shrouded in secrecy. His workers are mostly young technicians who know a lot about computers, but have less knowledge, experience, or appreciation regarding the government agencies they are supposed to overhaul. When they descend on a department brandishing their butcher’s knives, we do not know whether they are cutting fat or meat, or if they can even tell the difference. Apparently, they just walk in the door and start ordering administrators to cut jobs and stop spending money on things that do not conform to the President’s priorities. Among the kinds of spending they say to stop are the clean energy projects authorized by the Inflation Reduction Act, not because they are wasteful, but because the President doesn’t acknowledge greenhouse gas pollution or climate change as problems. The cuts certainly seems to violate the Impoundment Act and the obligation of the executive to take care that the laws are faithfully executed. DOGE is designed to circumvent the normal congressional budgeting and oversight processes. Trump has also fired the Inspector Generals who are normally responsible for combating waste, fraud, and abuse. His people—or more precisely Musk’s people—will decide what is wasteful.

Remedies

The most obvious remedy for an executive branch run amok—or in this case, run aMusk—is for the legislative branch to reassert its Article I authority. The Republican leadership in Congress shows no interest in doing this. For whatever reason—ideological agreement or intimidation by their bully leader—they seem content to let Trump and Musk dismantle federal agencies. No doubt many Republicans are happy to accomplish by executive fiat what they have been unable to accomplish legislatively, such as killing clean energy and consumer protection.

The third branch of government, the judiciary, is showing signs of life. A number of judges have responded to the many lawsuits already filed by issuing temporary restraining orders, pending hearings on the legal objections. (As I write this, I have just heard that a judge has accused the administration of violating his previous order to stop freezing spending.) Trump, Musk, and Vice President Vance have responded by attacking the judges, with Musk calling for their impeachment. We may be headed for a constitutional crisis, where the President refuses to be bound even by court orders.

No matter what Trump does, removing him from office before his term expires seems a remote prospect, since the Supreme Court has granted him immunity from prosecution and members of his own party will not vote to impeach him. Removal by means of the 25^th Amendment would require cooperation of the cabinet, now well-stocked with loyalists who are as extreme as he is.

That leaves public opinion. One reason why Trump and Musk chose USAID to begin their anti-government crusade is probably that foreign aid does not have a very large domestic constituency. Polls have found that Americans grossly exaggerate how much we spend on it—actually about one-half of one percent of the federal budget—and wonder why we do not spend that money at home. As the demolition derby extends its efforts to other targets, Americans may discover how much federal spending impacts their own communities. When budget cuts start hitting local hospitals, schools, farms and construction projects, the administration may discover that cutting spending is much more popular in the abstract than in the concrete. A little civic education might turn out to be the silver lining of the dark cloud that hangs over the country.