"Creating a parallel state": Elon and Vivek hope to test presidential and private powers

While the promises of billionaires Elon Musk and Vivek Ramaswamy to cut government spending down to the bone sound a lot like previous failed attempts to root out supposed government waste, their plan promises to test the limits of presidential power and the power of private individuals to steer government.

Among the various purported goals of the so-called Department of Government Efficiency — which will not be an official government department — Musk has promised to cut some $2 trillion from the federal budget and Ramaswamy has promised to fire more than 75% of the federal workforce. According to the ambitious billionaire duo, the Department of Education, the FBI, the Bureau of Alcohol, Tobacco, Firearms and Explosives, and the Nuclear Regulatory Commission may all be on the chopping block. 

While Musk and Ramaswamy have been talking a big game in promising to usher in a new era of austerity in America, there’s a major constitutional issue standing in their way — at least for now.

Under the clear language of the Constitution, Congress, not the president, has final say over the federal budget. No matter which party is in charge, Congress has historically been averse to deep budget cuts.

Mike Lofgren, a former Republican congressional aide (and frequent Salon contributor) who worked on various budget committees, said he's seen this before: “This stuff has been going on forever.” In order to cut the budget significantly, he added, Congress will either need to slash benefits in popular programs like Social Security, Medicare and Medicaid, or reduce military spending. Neither of those is realistic. 

"It's become a kind of received wisdom among the vox populi that there's all sorts of bureaucratic waste in the government, and there really isn’t," Lofgren said. "I say that as a former Republican who worked on the budget committees. What are you going to cut out? The FDA’s food safety inspections? Well, I’m sure some of the big meat packers would like that, but you’d get a situation like Upton Sinclair's 'The Jungle.'"

Ronald Sanders, who has held various senior positions in the federal government and is now a senior fellow at George Washington University, explained that cutting staff at federal agencies has also historically failed, because members of Congress are understandably reluctant to sign off on large-scale layoffs in their districts. 

Evidently aware of this problem, Ramaswamy has promised to take measures that will encourage government employees to quit voluntarily, either by relocating their workplaces away from Washington or restricting remote work opportunities. It's not clear that the latter move would affect many government employees, since the Office of Management and Budget reports that 80% of all federal work hours are already done in person.

Sanders adds that encouraging federal workers to leave is likely to make the government less efficient. People who can get other jobs, he said, "will leave most often" through voluntary attrition. "It will result in severe imbalances — the wrong people will leave." 

For these and other reasons, it’s not hard to understand why dramatic budget cuts might struggle to pass the House of Representatives, where Republicans will only hold a 217-215 majority, at least until they can fill seats left by the three Republicans who left Congress to join the Trump administration. That means even a single Republican defection in the House would be enough to sink a bill.

Musk and Ramaswamy, however, say they have a plan to get around Congress. In an op-ed for the Wall Street Journal, the duo write that they intend to challenge a 1974 law that controls a president's power of a president to refuse to spend money that has been approved by Congress. That refusal is known as "impoundment."

Andrew Rudalevige, a professor of government at Bowdoin College, told Salon that attempting to make budget cuts without congressional approval “quickly gets us to this question of impoundment,” a question the Supreme Court has taken up before.

In the 1975 case Train v. City of New York, the high court considered whether the Nixon administration could legally refuse to spend money allocated to New York City. President Richard Nixon had also sought to withhold funds from other projects, such as the Office of Economic Opportunity and water pollution control projects.

Nixon's lawyers went "to the mat," Rudalevige said, "arguing that the president’s constitutional power to impound is clear." But New York City ultimately won the case, with the Supreme Court ruling that impoundment cannot be used without the approval of Congress, which could, for example, write appropriations bills that allowed the president to spend less on certain projects than the total they appropriated. The president may also rescind or defer spending but, again, only with congressional approval.

Rudalevige explained that even though the Supreme Court has generally been friendly to Trump during his previous administration, he sees no signs in recent court opinions that the justices intend to disempower Congress to the degree that Musk and Ramaswamy want. He added, however, that given the court's strong conservative leanings, he's unwilling to predict how it might rule. 

Absent a ruling from the Supreme Court, Lofgren said that the fate of Musk and Ramaswamy's endeavor will depend on “how sycophantic the Republican Congress” is willing to be. He also noted that DOGE is technically a private entity, an advisory board with no congressional charter and no official government status.  

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“If something's not a part of the government itself, that speaks to a sort of parallel government, like the Communist Party in the Soviet Union,” Lofgren said. 

DOGE isn’t the first private budget commission. After Ronald Reagan's 1980 election, he established the Private Sector Survey on Cost Control, commonly called the Grace Commission, in an early effort to “drain the swamp.” That commission, however, was largely seen as a failure. According to the Ronald Reagan Presidential Library, most of its recommendations were simply ignored.

Lofgren concluded, however, that it will be worth watching how much influence DOGE can exert within the Trump administration.

"This becomes the thin end of the wedge in creating a parallel state," he said. "We could see a situation where billionaires basically usurp the functions of government and end up running it as a sort of private corporation."