Why DOGE is unconstitutional (this is great news)

[NJCher]

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/

------------

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

[Wicked Blue]

1. K&R

[SheltieLover]

2. Ty for sharing!

[Frasier Balzov]

3. When you can turn off a judge's paycheck

you can disregard everything they say you are allowed to do and not do.

[stopdiggin]

4. a fairly cynical (and rather encompassing) statement.

I rather think there're probably a few of them that could (and would?) ride out a paycheck or two .. ?

- - - - - - - - - - - - - - - - - - - - - - - - - - -

[Frasier Balzov]

8. What you might want is for some military to get shut off.

The only ones left who can do anything about this to rescue the nation.

[stopdiggin]

12. nah. I actually think everyone that is performing a job

should get paid. Idealistic I know .... But it's kind of a union, worker empowerment thing.

[Frasier Balzov]

15. You're paid if you're loyal.

The only test of whether you're doing your job is if you're doing what Trump and Musk want.

What else matters?

[lastlib]

9. The US Constitution forbids monkeying with judges' salaries.....

...but I wouldn't put it past Elon and his Crime Minister to try it.......

[NJCher]

13. Do you really think it's that simple?

When you can turn off a judge's paycheck

For a judge to defer to trump or musk over an illegally withheld paycheck is absurd. They have to be able to make a rationale within the confines of the law. Would you please explain how that could be done, given what the author has explained in the article?

This argument made by the jurist has to pass muster with his colleagues and the legal community in general. Do you seriously think a person would do that over an illegally held paycheck?

[Frasier Balzov]

14. I'm unpacking your questions.

How could turning off an offending judge's paycheck be done?

(The same way any of the switches are being thrown at Treasury to stop and clawback fund transfers at somebody's whim.)

Would that deter an offending judge-- one with principles-- from continuing to stand by their offending ruling and insist that somebody listen and obey?

(One and all will see what the offending judge has suffered as punishment and will want to avoid the same fate.)

The judicial branch is toothless without people with guns who are willing to back them up.

Resign in protest? Big deal.

[NJCher]

22. Oh ok

So you’re basically saying the laws, even the ones intended for the big believers in the law, have to be backed by a gun.

Well, alrighty then.

[dickthegrouch]

30. I think a more generous interpretation is

That a significant proportion of attorneys, judges and even SCROTUS, have gone to the dark side. Those that haven’t might be manipulated into acquiescence by having their paychecks turned off.
Facing gun toting thugs to complain about their missing paychecks might be a step they are unwilling to take.
But I could be mistaken.
See also
https://www.democraticunderground.com/10143395432

[yellow dahlia]

5. Hmmm...

Thank you for sharing.

[moonshinegnomie]

6. once musk is stopped once and for all

he should be ordered to pay the government for every dollar he supposedly cut. if he "cuts" 200B then he pays 200B.

[intheflow]

10. Plus interest.

At 50%.

[Karasu]

7. Of course it fucking is. It's not even an actual department, led by an unelected private citizen, and most of its staff

are either unpaid kids or being paid fucking peanuts.

It must be completely and utterly destroyed. This country cannot endure 4 years worth of this insane, unprecedented fascist austerity.

[crud]

11. Dems need to call for shutting down DOGE

Call for shutting down Musk. No Dem votes until they are shut down.

[Bluethroughu]

16. SCOTUS IS IN ON IT.

They are kompromat.

[Dem4life1970]

17. The only challenge is that SCOTUS ruled that...

...when Biden was in office. Now that their God-King (A.K.A. Orange Julius Caesar) is in office, watch them twist themselves into pretzels to worship at his feet.

[NJCher]

23. That takes their

Own power away. Explain why this power hungry court would give their own power away.

[Sucha NastyWoman]

18. Yet even if the Court gets it right, how does enforcement happen

Last edited Thu Feb 13, 2025, 03:04 AM - Edit history (1)

When they have control and obeyance of the enforcers?

[NJCher]

24. I wrote a post on that

Exponential sentencing. I’ll give you a link tomorrow when I’m on my computer.

Also warrant/sheriff.

[thesquanderer]

19. re: "Only Congress or the Supreme Court can stop him."

This Republican Congress is unlikely to stop him. And I don't have a lot of faith in the current Supreme Court, either.

[pfitz59]

20. My sentiments as well.

The fix is in.

[NJCher]

25. But they would have to

Write a law and enact it. Not gonna happen.

Also, please explain why they would vote to give their own power away.

[slightlv]

29. I'm with you...

I didn't see the article as heartening... in fact, I was pretty disheartened by it. If all we can hope for is Congress to not give away it's power and rein in the trump administration, or judges to back up their rulings with some kind of enforcement (which is the executive), then we're screwed as far as I'm concerned.

Not one repuglican in office today is going to go against trump, no matter what. In addition, Congress has been giving away their powers to the executive for decades now... even the power to declare war! We have the least effective Congress that I can remember in my lifetime. Not only does it not do much of anything in a congressional term; but what it DOES do actually HARMS the U.S. and is NOT representative of the majority.

There are some excellent judges out there. But if they rule against trump, no matter who they are or who appointed them, they automatically become leftist activists. And tho it will get no where, one is trying to be made an example of right now by trying to impeach him for going against trump. He may not be impeached, but it sends a chilling effect through the rest of the judiciary.

And then you find judges like Loose Cannon, or the judge down in Texas who just rubber stamps anything and everything trump wants. And I include the SCOTUS in this column, as well. I wouldn't trust this SCOTUS to come out and state categorically that Americans have the right to life, liberty, and the pursuit of happiness. (It's not in the constitution, after all... just the declaration)

[dchill]

21. I feel it necessary to add, duh!

[NJCher]

26. Maybe for you, but

You can see people are having a hard time understanding this.

I think one reason is the “boss at work” model. That is not how democracy works.

Democracy gives the executive branch a little power, the Senate a little power, and the house a little power.The judiciary has decision-making power.

But you can clearly see not just from the posts here, but overall— that people think the boss can come in and just do anything. They can’t.

[HereForTheParty]

27. A WAPO Op-Ed isn't moving the needle.

nm

[NJCher]

28. if trump or musk read

they wouldn't be doing what they're doing in the first place.

[Passages]

31. Fingers crossed.