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 WSJ 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. 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.
Start with the Constitution itself, which, in Article I, Section 9, gives Congress the sole power to order appropriations. The basic idea is that, in a democratic republic, the government’s money is the people’s money, provided through taxes, so the people should decide how it’s spent.