4 ways Trump and Musk are shattering the basic rules of American government

Although the flood of executive actions coming from the desk of President Trump — and from Elon Musk, his unelected and unofficial co-president — are instilling widespread shock and fear, America was amply forewarned.

For those who weren’t paying much attention, or chose to look the other way, or who continue to either shrug it all off or cheer them on, here is a civics refresher on what is at stake and why it matters for all of us, not just Democrats.

The framers of the Constitution rejected an unlimited monarchy, in which power was believed to flow directly from the divine to the king and his blood heirs. By the time of the American Revolution, the authority of the British Parliament had been established, but the colonists resented King George III’s bullying behavior. So the framers established three co-equal branches of government — legislative, executive and judicial — each of which was designed to answer to the other two.

In Federalist No. 51, James Madison explained that it was necessary to “partition ... power among the several departments” so that “its several constituent parts may, by their mutual relations, be the means of keeping each other in their proper places.” He called it “a reflection on human nature, that such devices should be necessary to control the abuses of government.” Three distinct branches offered “the great security against a gradual concentration of the several powers in the same department” on the theory that “if men were angels,” Madison wrote, “no government would be necessary.”

The Constitution’s design was thus as much about psychology as it was about politics. The Framers understood that part of human nature is to amass, entrench and ultimately abuse power, so there must be disincentives to protect against bad behavior.

Every road has a speed limit, but drivers honor only some of them. If there’s no chance of a speeding ticket, most people ignore the rules. But once a speed-trap machine is installed in the bushes, drivers begin to slow down. It’s not the speed limit sign that does it — it’s the threat of a consequence for speeding.

The same goes for the laws that bind presidents, which include legislation enacted by Congress, rulings by federal judges and the Constitution itself. What these laws say is far less important than whether the other branches “issue tickets” to a president who blows through them.

Trump, just two weeks into his second term, has already made very clear that he expects no tickets for speeding in the Oval Office — not from the Constitution, not from Congress and possibly not even from the courts. Consider just four examples.

For starters, Musk is an extra-constitutional actor with no constitutional or statutory authority to do what he is doing. He is reportedly taking steps to shut down the U.S. Agency for International Development altogether, as well as locking career civil servants out of computer systems and enabling his own team’s access to the personal data of the federal workforce. The three-branch system does not include a “fourth” branch for private billionaires; slapping a made-up label on Musk’s so-called “department” does not legalize Musk’s status.

Second, Trump has also already flouted legislation enacted by Congress and signed into law by prior presidents. In firing 17 inspectors general, for example, he ignored a binding requirement under federal law that he give 30 days’ notice to Congress with a justification in advance.

Trump also issued a memo freezing federal funding on all “financial assistance programs” authorized by Congress. This is known as impoundment. When President Richard Nixon tried this, Congress passed the Impoundment Control Act, requiring presidents to get permission from Congress; if Congress doesn’t acquiesce, the funds get released after 45 days.

The Trump administration appears again to be taking the position that the Impoundment Act is unconstitutional. But that’s a question that’s for the courts, not the president, under the landmark 1803 ruling in Marbury v. Madison. Trump also stopped federal spending under the Inflation Reduction Act of 2022 and the Infrastructure Investment and Jobs Act, Biden-era funding initiatives for infrastructure and climate.

Third, Trump already seems to be treading precariously on the authority of the federal courts. On Jan. 27, U.S. District Judge Amit P. Mehta reversed his prior order barring nine of the Jan. 6 defendants from entering the U.S. Capitol after Trump had commuted their sentences. Mehta noted that everyone — the defendants, their lawyers and the U.S. Probation Offices — had agreed that even though the commutations released them from prison, the defendants were still subject to their terms of supervised release and the jurisdiction of the court. Stewart Rhodes, the founder of the Oath Keepers, even publicly stated that he would “report to [his] probation officer.”

Trump’s Justice Department subsequently filed a motion stating that the defendants “are no longer subject to the terms of supervised release and probation.” In his order reversing himself, Judge Mehta noted that “the motion concludes not with a request for relief, but with an ‘indicat[ion] that the Order must be vacated.’” Translation: Trump declared what the law is and issued an order to a federal judge, not the other way around.

Fourth, Trump is flagrantly ignoring the text of the Constitution and settled Supreme Court law. His rationale for the executive order excluding certain categories of Americans from birthright citizenship was that “the Fourteenth Amendment has never been interpreted to extend citizenship universally to everyone born within the United States.” White House Press Secretary Karoline Leavitt told reporters that “birthright citizenship is unconstitutional.”

But in U.S. v. Wong King Ark, the Supreme Court in 1898 rejected the argument Trump is making for limiting the Constitution’s birthright citizenship guarantee. If the Supreme Court doesn’t act to shore up its own authority, Trump could be setting a dangerous new precedent that he — not the high court — gets to decide what the Constitution means.

The framers offered up a way to stop this disturbing power grab in its tracks. It’s called impeachment. Yet while the Trump administration takes a wrecking ball to the Constitution, the people’s elected representatives in Congress are mostly standing meekly by, eschewing their constitutional authority to hold the executive branch accountable to the people. One day, the people may have had enough of all of them.

Kimberly Wehle is author of the new book “Pardon Power: How the Pardon System Works — and Why.”