Trump & Musk: the Evil Twins Trampling the Constitution

Elon Musk runs Tesla in the same manner Donald Trump wants to run the United States: as an autocrat. With Musk now acting as Trump's consigliere, we're headed for destructive chaos.

We are at a crucial point in our history.

In two short weeks, Elon Musk and his anonymous team of 40 or so DOGE stormtroopers, celebrating their vaunted status in the Trump Administration, have:

• locked governmental officials out of their computers;

• obtained access to the Treasury Department’s vast payment system;

• launched an on-line assault to intimidate Sen. Todd Young into supporting the nomination of Tulsi Gabbard as Director of National Intelligence;¹

• labeled the U.S. Agency for International Development (the “USAID”) as a “criminal organization,” gained access to its classified information, and attempted to close it; and

• insulted two million federal employees (many of them highly trained, hard-working, and brilliant) with an email (recycled from Musk’s mass firings at Twitter) encouraging them to resign from their “lower productivity” jobs.

Musk, the pretend proponent of free speech and transparency, has directed these efforts under a complete shroud of secrecy as to the stormtroopers’ identities and communications.

Will Trump and Musk be permitted to ravage our rights, destroy our system of governance, and end our long and successful experiment with democratic republicanism?

Or, instead, will just one or two more Republican senators finally show some spine, and put country over party?² And, failing that, will our Supreme Court remain faithful to our Constitution?

We will learn the answer to those questions in the weeks and months ahead as the legality of the Trump and Musk power grabs are fought out in Congress and the courts.

I. The Unitary Executive

The most consequential legal battles will concern how extensive a President’s powers are under Article II of the Constitution.

Trump’s flood of executive orders during his first days in office demonstrate that he has adopted an extreme version of the “unitary executive” theory of U.S. Constitutional law. He believes he can, in effect, completely neuter Congress.

He need not “take care” that the laws Congress passes be “faithfully executed,” nor need he himself obey those laws, nor need he spend the money appropriated by Congress.

Let’s review just a few of the growing number of recent examples:

• Trump is refusing to enforce the TikTok ban passed by a bipartisan Congressional majority and duly signed into law, justifying his action with his claim that his “commanding presence” on social media, his “powerful electoral mandate,” and his “consummate dealmaking expertise” justify his decision to defer enforcement while he negotiates with China.³

• Congress required the President to give 30 days’ notice, together with a written justification, when removing inspectors general, the independent watchdogs at executive agencies, but Trump fired 17 of them without giving Congress either the notice or the justification.

• Trump paused spending for a range of programs approved by Congress, thereby creating chaos in numerous federal agencies (the pause has been temporarily enjoined by the two federal courts that are considering its legality).

• Trump has offered some two million federal employees a “deferred resignation offer” under which, if they resign by February 6, they are promised pay and benefits through September 30. The offer not only steps on Congressional directives and appropriations, but also promises payment of money that the U.S. Treasury does not currently have. Moreover, the agency making the offer lacks legal authority to do so.

• Trump has moved to abolish the USAID, even though that agency has been established by Congress as a distinct entity.

A. Can the President Fire Federal Employees Without Cause?

The U.S. Supreme Court has, to date, recognized that the President, as the sole Executive under our Constitution,⁴ has some broad powers. He or she can, for instance, without cause, dismiss members of executive agencies who have policy-making discretion. (For this reason, Trump’s dismissal of the inspector generals might ultimately be upheld, with the legislative requirement of 30-days notice declared unconstitutional.)

But can the President fire, without cause, federal employees who have no policy-making discretion (in other words, the vast majority of the 2.4 million federal employees)? Those employees are protected from indiscriminate firing by various federal statutes, most prominently including the Civil Service Reform Act of 1978. To date, the courts have upheld Congress’ right to limit the President’s power to fire without cause.

If, for example, the courts ultimately permit Trump to fire the line-level FBI agents who were tasked by their superiors with investigating his January 6 criminality, or the line-level prosecutors who were tasked with prosecuting those crimes, that would constitute an immense and dangerous expansion of presidential power.

B. Can the President Refuse to Enforce Laws Passed by Congress?

The Constitution requires that the President “shall take Care that the Laws be faithfully executed.” Can Trump lawfully decline to enforce a law enacted by Congress, as he has done in the instances of the TikTok ban and certain immigration legislation? Can he unilaterally dismantle the USAID?

The answer from the judicial branch has been, so far, no, the president can not. Even the controversial 2024 Trump v. United States decision from the Supreme Court appears to recognize that the President must enforce the law (Chief Justice Roberts wrote in the majority opinion, “Of course, the President’s duty to “take Care that the Laws be faithfully executed” plainly encompasses enforcement of federal election laws passed by Congress.”)

However, as the concurrences and dissents in Trump v. United States demonstrate, there remains much uncertainty about how strict the President’s responsibilities are under the so-called “take Care” clause, and how the Supreme Court will ultimately define the precise nature of those responsibilities.

I believe we will see, perhaps even as early as this year, the Supreme Court address this crucial issue.

C. Can the President Refuse to Spend Funds Appropriated by Congress?

The Constitution vests “all legislative Powers herein granted” in the Congress consisting of a House of Representatives and a Senate. It sets forth a procedure under which the President may either sign into law a bill approved by the legislative branches, or veto it. If the President vetoes the bill, then the House and Senate can override the veto with a two-thirds vote.

In view of this carefully spelled-out procedure, if the President can refuse to spend monies appropriated by the House and Senate under legislation that was not vetoed, then the entire Constitutional machinery is undermined.

It is not only the text and structure of the Constitution that indicate the President may not refuse to spend monies appropriated by Congress. There is also legislation, in the form of the Impoundment Control Act of 1974, passed after President Nixon attempted to impound appropriated funds. That Act has considerable play in the joints, allowing for deferrals under certain circumstances where appropriate notice is given to Congress.

But Trump’s sweeping executive orders demonstrate that he is not interested in playing within those rules to achieve his goals. Rather, he is aiming for a radical change that would allow him to essentially neuter Congress, to spend or not spend as he pleases, and to unilaterally rewrite the Constitution.

II. Trump’s Inspiration: Elon Musk

Elon Musk famously financed Trump’s campaign with munificent cash contributions (at least $277 million) and in-kind social media promotion (priceless).

Musk is not only helping Trump stomp his way through Constitutional restraints, but has himself already made a brilliant demonstration of how to exercise the extreme form of the unitary executive theory.

Much as a U.S. president is supposed to experience the checks and balances of Congressional power, a corporate executive is supposed to be subject to the supervision and direction of a board of directors. The Tesla board, however, has been almost completely AWOL in supervising Musk and, indeed, has sometimes assisted rather than prevented his shenanigans. For instance:

• The board has done nothing while Musk, for each of the past nine years, has made promise after promise that Tesla’s (non-existent) full self-driving capabilities are imminent, are superior to that of any potential competitor, and are certain to arrive the following year.

• The board has stood by while Musk has repeatedly claimed that Tesla cars with “Autopilot” are safer than other vehicles when, in fact, Tesla cars are demonstrably more dangerous.

• The board has allowed Musk to tell massive whoppers about the potential of Tesla’s “Optimus” robots, and evidently took no action when Musk pretended the robots were acting autonomously (though they were actually controlled by humans) at last October’s “robotaxi” event.

• The board was mute in response to Musk’s threat to strip Tesla of its AI business opportunities if shareholders didn’t vote to “ratify” his compensation package.

• No doubt at Musk’s behest, the board actively participated in lying to shareholders about material aspects of the “ratification” vote (and was called out by Chancellor Kathaleen McCormick in footnote 75 her Dec. 2, 2024 decision).

• Similarly, no doubt at Musk’s behest, a board member pretended to be “independent” in recommending the “ratification” vote when, in fact, she had been vastly enriched by Tesla stock options.

• The board remained silent when Musk made thuggish attacks on the Chancellor.

• The board has allowed Musk to immerse himself in U.S. and, indeed, world politics, at the cost of alienating a large swath of potential Tesla customers.

In other words, Musk’s view of corporate governance is that he controls everything and is subject to absolutely no governance from his board, whom he has populated with relatives and timorous wimps whose supine compliance is for sale.

The similarity of the Tesla board of directors to many of the Republicans in Congress is sickeningly obvious.

III. Conservatives, Be Careful What You Wish For

As regular readers know, I am a political conservative (or what, in Europe, might be called a liberal): favoring fiscal responsibility, individual liberty, the superiority of capitalism relative to other economic systems, free markets, the rule of law, immigration policies that appreciate both the need for assimilation and the value of immigrants, and a strong position for the United States on the world stage.

My objections to what Trump and Musk are doing is not because I disagree with all their policy ideas. Indeed, as I have elsewhere written, I am in broad agreement with the goals of DOGE. And I am also in agreement with some of the policies being promoted by Trump.

However, while I have agreement with DOGE’s goals and some of Trump’s policies, what I care most deeply about is our Constitution. Unless we adhere to it, we cannot remain a free and prosperous people.

And our Constitution does not tell us what is a good or bad decision. Rather, it is a document about who decides what. Trump is attempting to decide things that our Constitution quite wisely leaves to Congress.

To those who are cheering on Trump and Musk because they think they are great people, or because they agree with their policies, I ask you to consider this: what happens when, as is inevitable, the Democrats are back in power? Are you ready to have those on the left, in forwarding their agenda, trample on your rights and act in complete disregard of the Constitution and the law?

American political discourse has coarsened notably in my lifetime. The tit-for-tat pettiness of partisan rancor has greatly increased. The number of citizens capable of critical thinking, and of engaging in political debate with a measure of tolerance and humility, has diminished.

There are, no doubt, many reasons for this sad devolution, but there is no doubt that the sewer of social media is a major contributor. And the most powerful social media platform of them all, Elon Musk’s X, is much more a racist and conspiracy theory sewer than pre-Musk Twitter, for all its faults, ever was.

With a proudly ignorant narcissist at the helm, and a dangerous sociopath guiding his actions, I fear for our Republic as I never have before.

1. I am sickened to see Sen. Young cave to the pressure, much as I am sickened to see Sen. Bill Cassidy decide to support the nomination of Robert F. Kennedy, Jr. as Secretary of Health and Human Services.

2. Senators Susan Collins, Mitch McConnell, and Lisa Murkowski have shown courage in resisting some of Trump’s most egregiously unqualified and dangerous appointees, resulting in a 50-50 tie in the Senate, with Vice President J.D. Vance breaking the tie in favor of Trump. Those three senators are also likely to resist Trump’s unconstitutional actions. Will they find just one more Republican senator to join them?

3. In attacking Trump for his refusal to enforce the TikTok ban, I don’t mean to let Joe Biden off the hook. Despite signing the ban into law, Biden announced near the end of his term that he would refuse to enforce it. It was the least serious of the many disgraceful actions that marked his last several months in office.

4. Article II, Section 1: “The executive Power shall be vested in a President of the United States of America.”