While the vast majority of elected Republicans are in lockstep support of Elon Musk’s attack on government agencies, some conservative scholars say the South African billionaire is creating a constitutional crisis as he arrogates the authority of Congress to determine federal spending, one that becomes more concerning as long as it continues unchecked by other branches of government.
Musk and his cadre of young adult aides, acting without the approval of Congress, have gained access to the U.S. Treasury’s payment system and brought operations at the U.S. Agency for International Development to a screeching halt this week. Musk's stated aim is cutting federal spending, which legal experts say can only be done by Congress using its constitutional power of the purse.
“The Trump administration has essentially declared war on Article I of the Constitution,” Brian Riedl, a senior fellow at the right-wing Manhattan Institute and former aid to retired Sen. Rob Portman, R-Ohio, said in an interview with Salon.
Under Article 1, the House of Representatives is charged with passing legislation to raise federal revenues and Congress is changed with passing laws to manage appropriations. "No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law," it states. At the constitutional convention, delegate Elbridge Gerry noted that this power was entrusted with the House because its members were "representatives of the people" and "it was a maxim that the people ought to hold the purse-strings," as noted by an official congressional history of the debate.
As Riedl explained, under the Constitution the president has the authority only to “temporarily delay” payments as long as Congress is notified and as long as the president is not materially changing the statutory meaning of the underlying law. In the case of Musk and the extralegal Department of Government Efficiency, Riedl said, the Trump administration is usurping its constitutional authority..
“Clearly, they’re looking to blow up the underlying structure of the programs and they’re looking to stop payments indefinitely,” Riedl said. “This makes it an impoundment.”
“Impoundment” refers to the power of a president to not spend money allocated by Congress and it is regulated not just by the Constitution but by the 1974 Impoundment Control Act, which emphasized that a president would need congressional approval to legally impound funds.
The one-time and likely future head of Trump’s Office of Management and Budget, Russ Vought, has been a longtime critic of the existing law restricting the power of impoundment and has repeatedly stated, as has Trump, that the legislation banning is unconstitutional. In Riedl’s opinion, the current strategy by Musk and Trump is designed to get the issue before the Supreme Court, where conservatives hold a 6-3 majority.
The issue with the Trump and Vought view of impoundment, per Riedl, is that it would cede even more power from Congress while even further empowering the president — and empowering a president who does not have to face the voters again at that.
“The constitution put Congress in Article 1 because Congress is designed to be the primary branch. It’s the closest to the people. Its elections are the most often, and it ensures that no single person will have the power of the purse,” Riedl said. “If Congress isn’t going to have the power of the purse — they’ve already surrendered the power of tariffs and declaring war — what’s the point of having Congress?”
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Riedl isn’t the only conservative raising alarms. Alan Cole, a senior economist at another conservative think tank, the Tax Foundation, expressed concern over Musk’s maneuvering in a social media post earlier this week, saying that “I don’t mind cutting USAID significantly” but that “the process for it is a genuine constitutional crisis." He added that those supportive of cuts should pass a law if they want to do so. Even in the opinion columns of the Wall Street Journal, a typically Trump-friendly environment, critics are pointing out that Trump doesn’t have the authority to unilaterally shutter USAID without an act of Congress.
“Impoundment has become popular in Republican circles because they have not been able to successfully pass their ideas democratically,” Riedl said. “What they can’t do democratically they are now trying to do via illegal executive fiat and do an end run around Congress.”
Philip Wallach, a senior fellow focusing on Congress and the separation of powers at the American Enterprise Institute, a conservative think tank, told Salon that he is also concerned about impoundment. "It really doesn't make sense structurally" for the president to have such a radical power, he argued.
"As many people have pointed out, how do you negotiate a deal on spending if the president can subsequently renegotiate the terms of the deal, at least in a downward direction?” Wallach asked. “You just don't get to change the law by one branch's unilateral action.”
Wallach also said that the legal footing of DOGE was unclear and that, despite the body being part of the Executive Office of the President, it seemed to be a sort of "floating brand name" for people engaging in "legally questionable" activity. Much of the roughshod and potentially illegal action taken in the name of DOGE, Wallach noted, appears to follow in the mold of a business like SpaceX, where the CEO can essentially act unilaterally.
“What’s strange about it is if they want to win on the impoundment stuff you would expect them to be a little more deliberate about it. Right now their approach is more haphazard like spraying buckshot all over the place,” Wallach said. “It’s always seemed to me that Donald Trump cares very little for the constitutional separation of powers and Elon Musk seems to care even less.”
Wallach said that it remains to be seen whether Congress will stand up to Trump and reassert its authority over budgetary matters. As it stands, though, Republicans in Congress are running cover for the president and the billionaire who appears to be setting the agenda for him.
NOTUS, a nonprofit media outlet, recently reported Sen. Rick Scott, R-Fla., as saying that Musk is "doing exactly what he should be doing" by "going through every agency and looking at how to make sure the money’s spent right.”
“It doesn’t look like Congress is doing their job,” Scott said when asked about the issue that this is, constitutionally speaking, a job for elected lawmakers.
Another senior Republican, Sen. Thom Tillis, R- N.C., acknowledged that Musk and Trump's actions were unconstitutional but said that “nobody should bellyache about that.”
“That runs afoul of the Constitution in the strictest sense,” Tillis told NOTUS. But “it’s not uncommon for presidents to flex a little bit on where they can spend and where they can stop spending.”
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While other Republicans have expressed some concern over Musk's DOGE and Trump's approval of it, it's not clear that any of them are ready to take the sort of action that would be required to put a stop to DOGE's machinations.
Richard Painter, an attorney who served as a White House lawyer for former President George W. Bush’s administration, told Salon: “The founders intended for Congress to be the principal branch of government as the representative of the people." What's currently happening with Musk and DOGE is antithetical to that vision, he argued.
Painter said that many members of Congress "don’t want to say no to it but they wouldn’t say yes to it,” in reference to the austere cuts Musk is trying to impose with DOGE. He added that the Republicans supporting Musk in this endeavor are choosing to act in the interest of Trump and their political party, rather than in the interest of Congress as a branch of government.
"Members of the president's political party in the House and Senate are going to marginalize themselves if they continue to put up with this. At some point, they’re going to have to say 'no' and have an investigation and look into what Musk is doing," Painter said.
Painter flagged another looming Constitutional crisis. What happens if the president and the executive branch refuse to obey a court order? Already, the Trump administration's Justice Department has indicated that it doesn't believe it is obligated to follow a court order blocking Trump's federal funding freeze, saying that the order "only challenged the OMB memorandum" and does not bar "the President or his advisors from communicating with federal agencies or the public about the President’s priorities regarding federal spending."
“We haven't had a president refuse to obey a Supreme Court order, Painter aid. But if this keeps going on a president is going to say 'What's all this Marbury v. Madison business and judicial review?' At the end of the day, there's only one branch with control of an army and that's the executive branch and the president.”
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