Why DOGE is unconstitutional (this is great news) [View all]

From an opinion piece in The Washington Post.

The best part about this article comes at the end (not included in the excerpted parts below). It says the SC has already ruled in Loper Bright Enterprises v. Raimondo that it is the judiciary, not the executive branch, that gets to decide the interpretation of the laws Congress has enacted. This was only decided last year.

This essentially means trump and musk's whole strategy is busted.

The author comes with substantial Republican creds: He was associate White House counsel (Reagan) and general counsel of the Office of Management and Budget (both Reagan and Bush). At present he is a lecturer at Harvard Law. Also board secretary for the Society for the Rule of Law.

If you want to sleep better tonight, read this.

Trump is acting extra-constitutionally. Only Congress or the Supreme Court can stop him.

By Alan Charles Raul

snip

Even under the most aggressive view of the president’s “unitary executive” control over the entire executive branch and independent agencies, it is Congress’s sole authority to appropriate and legislate for our entire government. The president basically directs the executive branch within the contours prescribed by Congress, subject to constitutional checks and balances. To be sure, the president and Congress share policy responsibility because the president recommends budgets and necessary and expedient measures to Congress, whose bills the president can sign into law or veto. But in the end, the president is constitutionally stuck with the policies for the federal government that Congress enacts and appropriates. No one person in America is the law — not even a Trump or an Elon Musk.

So, how can the radical overhaul Trump and Musk are undertaking be reconciled with our constitutional order? Quite simply, it cannot be. Congress must step in to enact this radical transformation — or the Supreme Court must stop it.

In the past several years, the court has provided unmistakable direction that Congress, not the executive, determines the scope of federal policy. The court even narrowed the president’s previously long-held entitlement to deference when interpreting ambiguous laws and policies.

Specifically, the Trump-Musk quest for government efficiency is led by a “department” that Congress did not establish, by unelected operatives who exercise overwhelming authority without appointment under the appointments clause, who are not subject apparently to any checks and balances, who are not faithfully executing the laws Congress has appropriated and legislated, and who are in the process of eliminating whole agencies, programs and millions of employees without any congressional authorization whatsoever. And they are doing so without explaining and recommending such measures to Congress (or to the public, for that matter).

snip

Paywall-free link.

or

https://www.washingtonpost.com/opinions/2025/02/11/trump-congress-courts-doge-musk/

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Note: if you want to read Loper Bright Enterprises v. Raimondo, it is linked from the second link I've provided.