The problem with the DOGE approach is the mission may backfire spectacularly.
Trump, USAID and the Rule of Law
Trump doesn’t have legal authority to close USAID without Congress. And although we have all seen absurd if not illegal payments, there is a right way to go about things.
I have discussed this before, and now the Wall Street Journal discusses a similar viewpoint in Trump, USAID and the Rule of Law
The rule of law is the foundation of our constitutional system, and Congress is—directly or indirectly—the source of law. The U.S. president must exercise executive authority within statutory limits. In moving to abolish USAID, Mr. Trump seems intent on defying Congress, which has expressed its will clearly on the subject.
President John F. Kennedy established USAID via an executive order, relying on authority granted to him by the Foreign Assistance Act of 1961. Had USAID remained in this status, Mr. Trump would be within his rights to eliminate it by reversing Kennedy’s order. But in 1998 Congress enacted a law establishing USAID as a distinct entity within the executive branch and distinguishing between its functions and those of the State Department. The law granted President Bill Clinton a few months to modify the plan, after which his authority to do so would lapse. His report to Congress stated that USAID would “continue as an independent establishment in the Executive Branch.”
Congress legislated on this subject again last year. According to Brookings scholar George Ingram, the 2024 Foreign Operations Appropriations Act explicitly prohibited a reorganization, redesign or elimination of USAID without congressional participation.
That is the legal case against the DOGE handling of USAID and it is rock solid. Nonetheless, hypocrites cheer.
Many pretend that what DOGE is doing is not illegal.
Those same Republicans chastised Biden, correctly so, for flouting the Supreme Court multiple times on student aid.
Unfortunately, both sides are fine with the President breaking the law as long as the result is what they want.
Fundamental Question and the Rule of Law
Mr. Trump is raising fundamental questions about the extent to which international economic assistance serves U.S. national interests. He has every right to do so, and the debate he’s sparked could lead to more clarity on the goals that overseas economic aid should promote. But he can’t translate his policy preferences into action without congressional involvement and new legislation.
Mr. Trump’s decision to abolish USAID will almost certainly be challenged in court—and if my reading of the law is correct, the judicial branch won’t allow the president to proceed.
What then? Will he comply with a court order to stand down, or will he do as he pleases, whatever the judiciary may decide? The rule of law hangs in the balance.
No doubt the hypocrites still don’t care. Don’t worry, because they will care the next time a Democrat acts the same way.
Some Fearless Republicans Agree
Please consider Trump’s USAID Shutdown Alarms Republican Allies
Some congressional Republicans who for years wanted to curb USAID’s activities are now watching its sudden collapse with alarm, saying they worry about the fate of programs they see as playing a critical role in protecting U.S. national security and countering China.
The 10,000-person agency was preparing to shrink to 600 staffers by midnight Saturday before a judge who was appointed by President Trump during his first term temporarily blocked the action until Feb. 14. In the hours before the ruling, U.S. Agency for International Development officials at American Embassies were pleading with State Department leadership, which now runs USAID, to spare their programs.
“They were funding a lot of stupid stuff. That’s a fact, but they’re also doing a lot of good stuff, too,” said Rep. Don Bacon (R., Neb.). “So you don’t want to throw the baby out with the bath water. Instead of taking a sledgehammer, let’s get the scalpel out.”
Rep. Michael McCaul (R., Texas), when he was the top Republican on the House Foreign Affairs Committee, tried to address what he worried were excessive USAID overhead costs. He now says that Elon Musk’s strategy of shutting the entire agency down is an overcorrection.
“I’m eager to see an audit,” said Senate Armed Services Committee Chairman Roger Wicker (R., Miss.) But Wicker also said, “I have felt for a long time that USAID is our way to combat China’s Belt and Road Initiative,” in places including Africa and South America. “So, we need an aid program to match the Chinese effort,” he said.
On Thursday, Rep. Joe Wilson (R., S.C.), who called himself one of USAID’s top Republican supporters, said he texted national security adviser Mike Waltz, a former House colleague, about concerns he heard from the foreign ministers of Estonia, Latvia and Lithuania about a tech-focused program.
Secretary of State Marco Rubio is now acting chief of USAID. As a Republican senator, he repeatedly praised USAID’s work as bulwark against China.
Rep. Mario Diaz-Balart of Florida, the top Republican in charge of funding requests from State Department and other foreign programs, said this past week that he is worried about whether the USAID wind-down will leave enough workers to administer lifesaving projects overseas.
“I’m not disagreeing with why they’re doing what they’re doing,” Diaz-Balart said in an interview. “But here’s the issue: There are some folks out there that are doing jobs that are crucial.”
Last year, Rep. Andy Barr (R., Ky.) and several other Republicans proposed with Democrats to inject $40 million more a year into USAID to fortify Taiwan’s relationships with other countries, countering China’s efforts to isolate it. On Friday, Barr said he supports a top-to-bottom agency review to refocus it. Asked about Congress’s role in that, he said, “We’ll be seeing what the administration does, and then we’ll offer them feedback.”
In a recent X Spaces conversation including Musk and Sen. Joni Ernst (R., Iowa), the senator appeared to push back delicately against Musk’s conclusion that the agency was “just a ball of worms” and should be abolished.
“There is no apple,” he said. “And when there is no apple in this, you’ve just got to basically get rid of the whole thing.”
Ernst later gently countered: “There are probably some arguments to be made about what could be important work that falls under USAID.” Later, she added: “If there are truly good pro-American programs, then let’s move them to the State Department. Let’s make sure we have proper oversight.”
A vote on that measure would put some lawmakers in a tight spot. “I haven’t reached that conclusion,” said Rep. Jim Baird (R., Ind.) when asked if the entire agency should be eliminated. “I think it deserves some evaluation.”
Court Showdown
I side with Senator Ernst. “If there are truly good pro-American programs, then let’s move them to the State Department. Let’s make sure we have proper oversight.”
But that takes an act of Congress.
A USAID official said Trump, Musk and Rubio have shown no sign of reversing course on closing the agency, whose signage was removed from its headquarters Friday.
What to Expect from a USAID Shutdown
- My constitutional law expert says “Contractors will sue. There will have been no valid legal basis for stopping contract payments. So, under the contracts, the federal government will pay a bundle in penalties and equitable adjustments.“
- The courts will force a reversal. And no good will come from this approach.
This is the Elon Musk sponsored, Ted Mack Legal Amateur Hour.
As noted above, some fearless Republicans agree, easily enough to kill the idea of eliminating USAID entirely.
The only sound approach is to proceed down the path Senator Ernst suggested. Properly tailored, the Senate just needs to find 7 Democrats willing to go along.
CIA Buyouts
CBS News reports CIA offers buyouts to employees as Trump aims to transform federal government
The CIA confirmed that it offered buyouts to employees who volunteer to resign, the latest group of federal workers to receive such a proposal as President Trump pushes to transform the federal government.
The Office of Personnel Management has already offered millions of federal workers about eight months of salary if they agree by Thursday to leave their jobs. The CIA and other national security agencies were initially exempted, but the CIA offers suggest few corners of the government will escape Mr. Trump’s overhaul.
Mr. Trump has long criticized America’s intelligence agencies, and his new CIA director, John Ratcliffe, has promised big changes, claiming the CIA has strayed from its original focus on human-collected intelligence.
I don’t object to the idea the CIA is a political swamp. But I do question the means.
Team DOGE has no authority to pay staffers 8 months to do nothing. Moreover there are contracts in place.
Government Employment Bargaining Unit
If these buyout offers are in violation of any union contract, and people are dismissed, several things will happen, none of them any good.
What to Expect
- About 40,000 people accepted an offer that was illegal to make. Those 40,000 are likely the best and brightest of the bunch who accepted the offer because they are skilled enough to find another job. Hooray, free money.
- Those who stay are likely the worst of the lot and some will be dismissed.
- If dismissal is in violation of any union contract, they will be rehired with back pay and penalties.
What happens to those who accepted an illegal offer is a mystery.
Once again, this looks like the Ted Mack Legal Amateur Hour.
Cheer if you want, and one seriously misguided friend does. So do all the hypocrites who think Trump is above the law and Biden isn’t.
Elon Musk and Team DOGE Run Into the Brick Wall of the Court
On February 6, I commented Elon Musk and Team DOGE Run Into the Brick Wall of the Court
Well, that was expected, fast, and generally correct.
President Trump and Elon Musk might be able to ignore the squawking of Democrats in Congress and the press, but they can’t ignore the courts.
Expect more defeats, some likely to be spectacular blowups.
Court v. DOGE Shutdowns
With many things Trump has been doing, there are plusses and minuses. USAID is complex.
I openly root for DOGE to come up with any and all proposals of things that need dismantling.
The problem is the approach, not the idea!
These moves all risks blowing up if not done legally. And unfortunately that’s the path repeatably taken.
For further discussion, please see USAID Cancellation by Trump, the Good, the Bad, and the Ugly Details
Once again, I am not arguing against the DOGE idea. I openly cheer the idea behind DOGE.
Instead, I am arguing against the methods.
Hypocrites may be happy with the approach, but I assure you that Trump can achieve much more by going about this in a constitutional manner.