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PaperclipPerfector  2mo ago (text post)   35670 thread views

Culture War Roundup for the week of February 3, 2025

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I posted this in last week's thread about a nearly identical topic that is prescient here:

In constitutional law, it is very clear--the executive branch does not have the authority to stop payments. A entity like DOGE isn't even a part of the government and does not have a right to view classified material. Regardless, this is considered impoundment. There are 3 reasons for this:

  1. Article I, Section 9, Clause 7: “No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law.” President's do not create law, congress does. Withholding funding is considered "Impoundment" by

  2. The Impoundment Control Act of 1974 which was upheld via judicial review by

  3. The SCOTUS ruling in Train v. City of New York (1975).

So these actions would go against all 3. The Constitution has not been amended, the law has not been repealed and the supreme court has not seen a case to change that precedent, at least not yet.

This is doubly so for Musk, who isn't even an official part of the government. If Trump wants to change this, he can ask congress to pass a law--republicans are a majority in both houses, or they can try to amend the constitution.

But this is unlawful just like the OMB executive order and for the same reasons. Congress has the power of the purse, not the president.

In constitutional law, it is very clear--the executive branch does not have the authority to stop payments.

And who enforces that?

Plus, I think you've completely misread me. I'm not talking about Trump and/or Musk committing "impoundment," I'm talking about left-wing Treasury employees doing so in order to defy and sabotage Trump.

I think you may be wrong in certain areas. First, DOGE is part of government (read the EO). Second, the president can give info to whoever he wants. Third, the President can certainly stop payments where the authorizing legislation is broad and open ended (eg 50m to foster goodwill in LATAM is not a command to spend xx dollars on a specific project in LATAM)

First, DOGE is part of government (read the EO)

The DOGE created by the executive order is a beefed-up Government digital service, which sits in the EOP, and is headed by a United States DOGE Service Administrator who is an EOP employee reporting directly to the White House Chief of Staff. The job of this DOGE is to co-ordinate the activity of the DOGE teams set up in individual agencies (consisting of agency employees who formally report to the agency head, but have a dotted line to DOGE), with a particular focus on software interoperability. The executive order explicitly doesn't transfer any of the authority of the Office of Management and Budget to DOGE, so as far as I can see DOGE has no authority to block spending.

Even from my mostly Trump-sceptic point of view, DOGE is a good idea, and making Elon Musk the public face of it and giving him some suitable advisory role will make it more effective, as well as making it easier to pull in someone first-class from a private-sector tech company for the crucial full-time role of DOGE Service Administrator.

Elon Musk is not an employee of the EOP reporting to the White House Chief of Staff (and couldn't be while continuing to hold his private-sector jobs), and if the post of United States DOGE Service Administrator has been filled by someone else, this fact has not been publicised. The media is reporting that the people working with Musk on @DOGE are not government employees either, and are mostly still being paid by Musk-owned companies. So the @DOGE that is shutting down USAID and rooting the Fiscal Service is not the DOGE of the EO.

I can't comment on what @DOGE is doing because they aren't saying, but given that USAID and the Fiscal Service were set up by Congress it is probably illegal and definitely irregular.

DOGE itself isn’t shutting anything down they are giving info to the president who then shuts it down.

Here is a curious aspect I started thinking about while trying to find out what is Musk's exact non-position in Trump administration and how can DOGE be not a 'true' department.

When the US constitution was written, it was a given that to rule and execute in any significant capacity, the executive branch would need Departments, with Secretaries to head them, in a physical office, with clerks and other assorted personnel to implement the day-to-day act of ruling. This is the context for legal standard that senate should confirm cabinet nominations.

Inventions like typewriter and telex merely made it possible increase the scale of the federal bureaucracy, but a large-scale bureaucracy was still needed.

With today's technology, Trump apparently can hire Elon and five(?) software engineers as "special government employees" in the Executive office who grep and curl the government computerized logs, payments and whatnot to find out what anyone in the federal bureaucracy have been doing, report back to Elon, who then tweets it or whispers directly to Trump what offices to order shut down in the next round of executive orders. Elon needs only limited formal authority to see the some existing government files. Previously establishing a federal snooping service required establishing a large bureau of investigators with legal authority to physically go and investigate. Panopticon indeed.

Compare and contrast ambassadors, who have been reduced from nearly autonomous representatives in distant foreign countries to people who organize social events and are nominally in charge of local staff who keeps regional chapters of CIA handbook up to date.

You are wrong on #1 and #2: Congressional action is required in order to create new executive branch offices. Presidents cannot do that through executive order per the constitution Article II, Section 2, Clause 2. DOGE was not created by congress and Musk has not been approved by congress. #3 depends, as most funding is earmarked to what organization it goes to.

Specifics matter. If Trump wants to have a new office in the executive branch, he will have to ask congress to create it for him. If he wants Musk to lead it, he will have to get him confirmed, the latter will never happen.

He won't do either one, so it looks like we are headed toward a constitutional crisis.

You mean offices like US AID? That was created by EO. Department level offices cannot be created by EO.

Also BS on the president being restricted on sharing info. Classification and de classification is a power of the president.

You are wrong on both counts and really need to read up a bit on this. It was created by EO, but established as an "independent establishment outside of the State Department by Section 1413 of the Foreign Affairs Reform and Restructuring Act of 1998, Division G of P.L. 105-277. So again, this action is another example of executive branch overstep. If they want to get rid of it, fine, but to it legally through congress. Which they have a majority in both chambers mind you.

Since September of 2020, there have been rules to prevent security clearances being given to anyone who has been a lobbyist or have a financial conflict of interest. This has not been done. Musk owns companies that compete with other companies who have government contracts, whereas now he will have unfettered access to their employees information (SSN, address, tax info, etc) along with complete information on government contracts with those competitors.

Hey buddy — you might want to check the date on the law you cited and the date USAID was created.

Also, and? Again the president can choose classification. It doesn’t matter that Biden made rules relating to lobbying.

Maybe it is you who needs to read up.

You didn't read the link. Again--congress made it a separate entity from the State Department years after it was established.

Since congress separated it, the president cannot get rid of it. Congress would have to do that.

You seem to not know how our goverment works. That is fine, but this discussion is pointless until you read up. I recommend starting here

You were and contribute to respond to something I didn’t say. I never made a claim about what Trump could do with respect to closing USAID by EO (that whole can of worms is complex and depends on what is meant by close—suffice to say I think Trump could effectively neuter USAID even if he can’t formally close it).

Instead I pointed out you were wrong to say that an EO cannot create a government office specifically pointing to USAID as an example (this was after I pointed out that you were mistaken to believe DOGE was not part of the government). You then retorted with a law 30 years after JFK created USAID.

So you chided me for things I didn’t say and asked me to read closely while literally ignoring what I said. Maybe slow down and don’t assume what other people mean to say and respond to what they actually said. Also have some humility as you’ve been factually wrong a few times and overstate your legal case.

Congressional action isn't needed to create roles in the Executive Office of the President that are not "Officers of the United States". Musk could do most of what DOGE is doing legally as a Special Assistant to the President, but he isn't one, he is just a private citizen who Trump has told his top political appointees to share information with.

Well, you still haven't actually read the EO.

DOGE is established as a renaming of the US digital service to US DOGE service, with a temporary suborganization called US DOGE Service Temporary Organization with teams of Special Government Employees.

And USDS's new mandate is a Software Modernization Initiative, not technically a budget directive, so the mission of USDS has not changed.

Finally, the president does have authority to share classified info with anyone at any time. The President and only the President is the ultimate classificarion authority (because classification is justified under constitutional provisions for foreign policy, I guess).

Whether this EO gives Elon the right to dismantle USAID is probably subject to controversy, but on the points you are pushing the Trump Admin has already thought of and dismissed your objections.

What the Trump administration is trying to do with this executive order is unlikely to hold up in court. Wether anything is actually paused at that point is another story.

Lets say your interpretation of the EO is correct. It is still illegal for him to be making financial decisions, firing people and unilaterally canceling spending explicitly earmarked by congress.

Firing is likely not illegal and Humphery’s executor ought to be overturned.

Again specifics matter on the financial spending. We cannot blanket say what is or is not illegal.

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