A Constitution of Convenience

The HOW matters as much as the WHAT

Remember waking up on January 21, 2012. President Barack Obama had just been sworn in for his second term, securing a clear election victory with a larger percentage of the vote than either of President Trump’s wins. Now, imagine Obama announcing that he was creating a shadow government organization headed by his largest donor, Jeffrey Katzenberg. This unelected figure would have direct access to government systems and classified information. Resistance by bureaucrats would result in forced retirements or resignations. Government agencies would shut down at Katzenberg’s discretion. All government expenditures would be subject to his review.

Such a reality is almost unfathomable. If Obama had attempted anything remotely similar, Republican outrage would have been deafening—and rightfully so. Yet now, as we find ourselves in this very situation, the silence is telling.

AI-generated image by OpenAI’s DALL·E.

The Difference Between Asking and Taking

In reality, in early 2012, President Obama sought congressional approval to reinstate a Depression-era rule that allowed the president to submit government reorganization plans for a guaranteed up-or-down vote. This authority, which had expired in 1984, would have permitted him to streamline agencies. Obama’s proposal also conceded to Congress that the authority could only be used to remove agencies, not to add them. It also required that any move save taxpayers’ money. His first proposed consolidation aimed to save taxpayers $3 billion over a decade. Despite these concessions to the Republican-controlled Congress, his request was rejected.

Obama’s mistake, apparently, was asking Congress at all.

With no congressional authorization, President Trump and Elon Musk have fed USAID to the “wood chipper”, blocked thousands of employees from government systems, and granted Musk’s shadow agency access to Treasury payment systems. In 2012, no less than the Heritage Foundation argued that a president lacked the unilateral authority to shrink and reorganize the executive branch without congressional approval. A position they most certainly no longer hold.

In their Wall Street Journal op-ed, Musk and Vivek Ramaswamy declared, “Our nation was founded on the basic idea that the people we elect run the government. That isn’t how America functions today. Most legal edicts aren’t laws enacted by Congress, but ‘rules and regulations’ promulgated by unelected bureaucrats.” They framed the Constitution as their “North Star” and pledged to make government more efficient. DOGE was going to take power away from unelected, faceless bureaucrats who made decisions with no congressional authority simply because they were experts.

Now, without a hint of irony, an unelected group of self-appointed experts is making sweeping changes to the federal government—without congressional approval—simply because the President “agreed.”

Checks and Balances Cannot Be Optional

To be clear, this is not a defense of USAID or any other government agency. The opaque, sprawling nature of the federal bureaucracy has long eroded public trust in Washington’s ability to govern effectively. Each passing war and crisis seemed to justify another expansion of the executive branch. Meanwhile, Congress has steadily relinquished its responsibilities, delegating power to executive branch institutions rather than exercising its constitutional authority. A sometimes well-meaning reliance on technocratic expertise has transformed the government into an inscrutable web of agencies.

This is not an argument about whether government should be smaller or more efficient. It is an argument for preserving the system of checks and balances.

We can’t keep calling the Constitution our “North Star” and then doing nothing while it is repeatedly abused. Democrats refused to grant Ronald Reagan reorganization authority in the 1980s. Republicans denied it to Obama in the 2010s. No president—Republican or Democrat—should have the unilateral ability to restore that power to themselves. That authority certainly should not be outsourced to an unelected, non-governmental personal agent of the President.

The Heritage Foundation, in a more clear-thinking time said, “The President may be able to accomplish some reorganization goals through particular statutory delegations of authority, executive orders, department memos, management policies, and other devices, but to accomplish major reorganization objectives, he will need explicit statutory authority from Congress, a viable procedure to enact reorganization plans, and a feasible implementation strategy. As for the details of any reorganization plan, exact limits on the President’s authority to reorganize the executive branch ‘can properly be analyzed only in light of the particular changes which are proposed’ and the relevant constitutional provisions and statutory authority.”

Trump is clearly going to test every limit as fast and as furiously as possible. He can’t be allowed to damage the Constitution and expand executive authority simply by using speed and frequency as a distraction in an executive order blitzkrieg.

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