Noah Feldman: The Supreme Court won’t save Musk’s DOGE plans

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 Wall Street Journal 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. (Ramaswamy went to Yale Law School, so if he doesn’t know, he should.) 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. (“No money shall be drawn from the Treasury, but in consequence of appropriations made by law.”) 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. This idea resonates with the American Revolution and its insistence that there be no taxation without representation. But in truth it goes back even further to 1627, when the British Parliament adopted the Petition of Right, establishing that no Englishman should be subject to taxation not set by Parliament.

The power to appropriate public funds necessarily comes with the power to require the funds to be spent. Otherwise, the president could set the priorities for public expenditure instead of Congress. To make that extremely clear, Congress passed the ICA. The law says that the president must spend money that Congress has appropriated. If he wants to propose holding back appropriated funds, there is a process he can follow, informing Congress that it has 45 days to pass a new law approving any potential holdback. If Congress does not act, the appropriated money must be spent.

The existence of the ICA matters, especially if Trump, under the influence of DOGE, decides to violate the law and ask the Supreme Court to overturn it as unconstitutional. According to the leading Supreme Court precedent on the balance between legislative and executive powers, Justice Robert Jackson’s famous opinion in the steel seizure case, Youngstown Sheet and Tube v. Sawyer, when Congress has passed a law binding the president, his power is “at its lowest ebb” because any action taken by the president would be “incompatible with the express or implied will of Congress.” The ICA makes Congress’s will extraordinarily clear regarding executive spending of appropriated money. It follows that the Supreme Court would be highly likely to uphold the ICA.

That’s as it should be. Congress’ job as lawmaker is to tell the president what to do, and his job is to execute the law as passed by Congress. So, when Congress tells the president to spend money, he must do it. That was the conclusion of the Supreme Court in a 1975 case, Train v. City of New York, in which the Nixon administration tried to hold back money allocated to the states under the Federal Water Pollution Control Act. In an opinion by Justice Byron White, the court read the statute to say that the president had to spend the money that had been allocated. Eight justices joined the opinion, and the ailing Justice William O. Douglas joined in the result without explaining why he didn’t.

The upshot is that when Musk and Ramaswamy brag of their “historic opportunity for structural reductions in the federal government” based on “a decisive electoral mandate and a 6-3 conservative majority on the Supreme Court,” they are grossly misrepresenting both the president and what the justices are likely to do.

Whatever Trump and his associates may believe, the court’s conservative majority cares a lot about preserving the legislature’s power relative to the president. Whatever else the court might do in the next four years, it won’t be reversing 50 years of precedent by undermining the constitutional design to let the president refuse to spend appropriated funds.

Noah Feldman is a Bloomberg Opinion columnist. A professor of law at Harvard University, he is author, most recently, of “To Be a Jew Today: A New Guide to God, Israel, and the Jewish People.”