The Constitutional Crisis Is Here

Sometimes a constitutional crisis sneaks up on you, shrouded in darkness, revealing itself gradually. Other times it announces itself dramatically. Elon Musk, to whom Donald Trump has delegated the task of neutering the congressional spending authority laid out in Article I of the Constitution, could hardly be more obvious about his intentions if he rode into Washington on a horse trailed by Roman legions.

“This is the one shot the American people have to defeat BUREAUcracy, rule of the bureaucrats, and restore DEMOcracy, rule of the people,” Musk wrote at 3:59 a.m. today on his social-media platform. “We’re never going to get another chance like this. It’s now or never. Your support is crucial to the success of the revolution of the people.” Here is Musk, as proxy for Trump, casting himself as a revolutionary force and embodiment of the popular will, demanding extraordinary powers to fight some unstated emergency.

Why, exactly, is eliminating these programs right this very instant so important? If, as Musk says, they are teeming with waste and fraud, presumably Congress could pass legislation to reduce or eliminate the problem, and if that were to fall short, it could try again later. Instead, Musk cites a vague crisis that requires suspending normal operations and concentrating power in his own hands. According to various reports, he is holed up in the Eisenhower Building with a small team of young engineers who possess neither government experience nor the authority to question his impulsive judgments, on the hunt for Marxist plots lurking within long-standing federal programs.

[Jonathan Lemire: Elon Musk is president]

The situation exposes a well-known flaw in the design of the Constitution. The Founders, famously, failed to anticipate the rise of political parties. They assumed that each branch of government would jealously guard its own powers, and thus check the others. But political parties created a different incentive system, in which members of the legislative branch can see their role as essentially employees of the president. Trump, who has convinced the Republican base that his interests are indistinguishable from the party’s and transposed his overbearing Apprentice boss persona onto his relations with co-partisans in Congress, is exploiting these incentives more than any other president in history.  

In theory, Congress ought to revolt against the prospect of Musk deciding which federal programs should live and which should die. In reality, its members largely share Trump’s goals—and to the extent that they don’t, they correctly fear that opposing him would invite a primary challenge. What’s more, this particular constitutional crisis has an inherent partisan asymmetry. If Trump and Musk succeed in taking the power of the purse from Congress, they will effectively reset the rules of the game in favor of the right. Congress’s spending powers would be redefined as setting a ceiling on spending, but not a floor. A world in which the president could cut spending without exposing Congress to accountability would hand small-government conservatives the opportunity to carry out policies they’ve long desired but been too afraid to vote for.

And so, although a handful of conservative intellectuals, including the budget wonk Brian Riedl of the Manhattan Institute and the law professor and former Bush-administration lawyer Jack Goldsmith, have described Musk’s ambitions as unconstitutional, most of the establishment right has cheered him on or stayed quiet. Senator Thom Tillis of North Carolina conceded that Musk’s project might not be strictly constitutional, but nonetheless told the news site NOTUS that “nobody should bellyache about that.”

Making things even more disturbing is the chaotic legal gray area in which Musk is operating. Musk and his team are working in secret, without hearings or public debate. According to Wired, they gained access to the Treasury Department’s federal payment system, shoving aside the long-time staffer overseeing it and ignoring its safety protocols. Democrats suspect that Musk is breaching numerous federal laws, but without any oversight, it is hard to tell precisely what he is doing. In any case, Musk might not have much reason to care about following the law. Trump has already made plain, by issuing mass pardons and commutations for the January 6 insurrectionists, that he will protect illegal conduct on his behalf.

Meanwhile, Musk has adopted Trump’s habit of deeming opposition to his actions inherently criminal. He has called the United States Agency for International Development, a decades-old program with support in both parties, a “criminal organization.” After an X user posted the names of the young engineers working with Musk, previously reported by Wired, he responded, “You have committed a crime.” The X user’s account has since been suspended.

Reporting on the identities of powerful public officials is, in fact, not a crime—even, or especially, if those officials have assumed public powers without going through formal channels. Musk has nonetheless gotten backup for his threats from Edward R. Martin Jr., a former “Stop the Steal” organizer whom Trump installed as U.S. attorney for the District of Columbia. In a vague but menacing message posted (naturally) on X, Martin warned that “certain individuals and/or groups have committed acts that appear to violate the law in targeting DOGE employees.” Martin declined to identify either the individuals or the laws they’d allegedly broken, nor did he acknowledge that reporting about or criticizing Musk’s work constitutes First Amendment–protected activity. Whether Martin acts upon these threats remains to be seen. In the meantime, however, he is contributing to the atmosphere of menace surrounding Trump and Musk by delivering their threats with a legal sheen, like some kind of MAGA Tom Hagen.

[Read: The ‘rapid unscheduled disassembly’ of the United States government]

The courts will have the final say over Trump’s audacious power grab. In all likelihood, they will affirm congressional authority to set spending levels authorized by the Constitution. But the Constitution ultimately means whatever five Supreme Court justices say it means. The Court’s more conservative justices often apply the most right-wing interpretation of the text they can plausibly defend, and occasionally one they can’t plausibly defend.

What’s more, Musk seems to have intuited that he can destroy programs and bureaucratic cultures faster than the system can restore them. Firing officials en masse, throwing the people and clients that rely on those programs into confusion and financial risk, and striking fear into the whole federal apparatus can break down the institutions and destroy their institutional knowledge. Rebuilding is painfully slow; destruction is rapid. This may be the dynamic Musk has in mind when he insists that his work must happen “now or never.”

Not even the most committed small-government-conservative lawmaker would design a process like the one now occurring: a handful of political novices, many of them drinking deep from the fetid waters of right-wing conspiracy theorizing, tearing through the federal budget, making haphazard decisions about what to scrap. And indeed, no elected body has designed this process. Trump and Musk have arrogated the power to themselves. The true urgent cause is to return that power to the legislature before the damage becomes irreversible.