Why Write About the Illegality of What Trump and Musk are Doing?
By Samuel Bagenstos
NYU Law professor Noah Rosenblum posted on Bluesky yesterday that “[t]here has never been a larger gap in my (admittedly quite short) professional life between how lay folks and law profs are talking about what is happening in government right now. So much of what Trump is doing is just blatantly illegal — often in several ways at once.”
That post accords with my observations (and I’m a lot older and deeper in my career than Noah is, alas). There’s an incredible brazenness to the speed and scope at which Trump–and Elon Musk, who in many ways looks like his de facto head of government–is breaking law after law in the interest of bending the bureaucracy to their will. Here are just a few of the more salient examples:
Mass suspensions and projected firings of career civil servants whose work touched diversity or equity initiatives;
Mass suspensions and projected firings of career civil servants whose work involves foreign aid.
Retaliatory firings of career civil servants involved in investigations or prosecutions of Trump and the January Sixth insurrectionists, with the threat of mass firings to come.
Mass firings of Inspectors General without following the statutory process of providing Congress 30 days’ notice and specific reasons for the firings.
Impoundments of federal funds–that is, refusing to carry out the law that requires the President to spend money Congress appropriates–on a scale orders of magnitude greater than we’ve ever seen.
Trump’s OMB tried to accomplish this impoundment with an incredibly broad and poorly drafted memo, which led to chaos across the government as payments were suspended for Medicaid and other programs on which people, community organizations, and businesses across the country rely. The Administration withdrew the memo the next day, but it made clear that the underlying “spending freeze” remained in place. And now two courts have enjoined the Administration from carrying it out.
But various of Trump’s Executive Orders themselves seem to require agencies to stop spending appropriated funds. And agencies seem to be continuing to carry out those impoundments.
And perhaps the biggest legal and administrative issue of all: Musk’s successful efforts for his team to take control of the federal government’s system for issuing payments–for writing checks to individual persons and entities. This action threatens cybersecurity and privacy in a variety of very significant ways. And it also creates the prospect of yet more illegal impoundments of federal funds. Indeed, Musk’s statements over the weekend (that he’s optimistic he’s found $4 billion a day in savings, that his team is “rapidly shutting down” payments to Lutheran Family Services to provide services to migrant children, and freezing money to refugee-aid organizations generally, etc.) suggest that he’s going to use his control over the system simply to turn off payments to those organizations and programs that he (and perhaps Trump) believes shouldn’t be funded. That’s as much of a violation of Congress’s power of the purse as was OMB’s ham-handed memo, but it’s more insidious because it may fly below the radar.
It seems obvious that Trump and Musk are running the basic play we’ve seen before from Musk and other Silicon Valley billionaires–move fast, break things (with “things” very much including the law), and then dare folks to try and do something about it. Their expectation is that people will be too overwhelmed, and the law will move too slowly, to stop them from doing what they’re doing. Maybe at some later point some lawsuit will provide somebody some relief. But Trump and Musk will fight those challenges at every step through whatever means necessary, many challenges will fail for odd legal reasons, and other challengers will get exhausted by the process. To the extent they ultimately lose some lawsuit, I expect that Trump and Musk think it won’t reverse what they’re doing; it will just represent a reasonable cost of doing business.
Lawsuits by injured parties are only one tool of legal accountability. But Trump is systematically trying to remove the other tools as well. His mass firings of Inspectors General–independent officials who make sure that government agencies comply with the law–are the tell here. So are the firings of prosecutors and FBI investigators. They’re clearly retaliation for working on past cases that affected Trump’s interests, and they send a clear message that any effort to investigate Trump in the future will end one’s career in the government. Congressional oversight is another potential tool for accountability. But the congressional Republican Party is in thrall to Trump and won’t engage in real oversight. And the Democrats are in the minority in both chambers. Without a majority, there are real limits to what the Democrats can do–and they’ve so far chosen not to use the tools they do have to escalate the drama and put pressure on the Republicans (by, for example, routinely denying unanimous consent requests in the Senate). (Yesterday’s actions by Ron Wyden, a Democratic Senator I deeply admire, are a start, but just a start.)
If legal remedies aren’t likely to stop Trump and Musk from doing what they’re trying to do, why even talk about the unlawfulness of their actions? It can almost seem naive to do so. Yeah, they’re violating the law. So what? Who’s going to stop them?
If the point of showing how Trump and Musk are violating the law were to make a prediction that they won’t get away with it, I’d be sympathetic to this critique. And, to be sure, there were plenty of commentators during the first Trump Administration who seemed to think that, once it was clear Trump had violated the law, the legal system would bring him down. (The expectation held by many that Robert Mueller would ride in on his white horse and save us from Trump was exemplary here, though perhaps bizarre tweets about secret orders being carried out by the Clerk of the Supreme Court better distill the mood.)
But I don’t think that’s the point of showing how Trump and Musk are violating the law–or at least that’s not my point when I argue that they’re doing so. Even recognizing the very significant barriers to effective enforcement of the law–and the core point that any effort to end the Trump Administration must ultimately be a political one–I think there are very good reasons to talk about the illegality of what Trump and Musk are doing. Here are some quick thoughts on that point. I expect I’ll be returning to this issue a lot over the next few years, alas.
For one thing, these issues aren’t mere technicalities. “Impoundment” sounds like it’s something only lawyers would care about, but what we’re really talking about is this: Our democratic system, acting in the best way it can, decided to spend money on certain things (green investments, money to Lutheran Family Services for migrant kids, etc.). Members of Congress, accountable to people in their districts across the country, voted for this funding. And the president signed the funding into law. Now a new president comes along and decides he doesn’t like what Congress voted for. Under our constitutional democracy, it’s his job to go back to Congress and convince them to pass a new law eliminating that funding. If he doesn’t want to do that–and, worse, if he wants to just delegate to some outside billionaire the decision of which of Congress’s spending laws to follow–that’s a fundamental democratic problem. That’s why it violates Congress’s constitutional power of the purse, as well as the Impoundment Control Act–a statute Congress adopted to underscore its constitutional power in the face of President Nixon’s efforts to eviscerate it.
Talking about the law in this context–and talking about how we got to the law we have–calls attention to the ways in which Trump and Musk’s actions contravene basic principles of our republican constitutional system. Discussing these matters in legal and constitutional terms provides an important tool for legislators who want to call attention in the press to the depredations of the new regime, and doing so can be one of many mobilizing tools for the citizenry. Not to mention that the widespread agreement by legal experts that the Trump Administration is massively violating the law will make it more likely that courts and other legal actors will step in to provide some checks–however limited those checks might be.
Finally, it’s important to note that the legal process itself can provide tools of accountability that can advance the political debate over Trump’s actions, even if the courts ultimately do not stop those actions. For example, public information remains very murky regarding what exactly Musk is doing with the payments system, federal personnel records, and other data systems to which he and his team have access. We don’t know who on his team has access, or what limitations have been placed on that access. (This story paraphrases an anonymous official as saying there will be restrictions, but who knows what that means or whether the underlying statement is even true.) The ongoing litigation against the Trump impoundments provides a prime opportunity to obtain, and make public, information about these questions. Under the Federal Rules of Civil Procedure, an injunction binds not only the named parties but those “in active concert” with those parties. Given the substantial indications that Musk’s team intends to use its access to the payment system to impound funds, the plaintiffs can use the litigation to obtain information about just what Musk et al. are doing, who is involved, what are the limitations on their access to federal databases, and whether they in fact have been granted the tools to stop payments. That information might feed further rounds of litigation, but it would also be useful to public debate. Providing information to the public is often one of the benefits of litigation, and it’s one way that the law can advance the democratic checks on the second Trump Administration.
I’ve been a lawyer for over 30 years. I am as skeptical as anyone is about the courts. I know the law won’t “save us” from Trump. We’re going to have to save ourselves. But the law is one among many tools that will prove important in that struggle. And I think it’s important that those of us who work in the law continue to explain Trump’s violations of the law.