The Wednesday Plus Advocate

Against the Wall Presidency

I remember when I was living in an apartment with college roommates, one of them gave me a great culinary tip. “If you want to know if the spaghetti is done, just throw it against the wall. If it sticks, it’s done.” Thankfully, my cooking talents evolved over the years, but I still recall that advice.

As we wind down the first month of Donald Trump’s second term, I am reminded of another expression about throwing something against the wall to see if it sticks.

The cascade of executive orders emanating from 1600 Pennsylvania Avenue has been dizzying, putting Democrats, federal agencies and even some Republicans back on their heels. Court dockets are filling up at an unprecedented rate, with an eventual date at the Supreme Court likely on the dance card for a myriad of issues.

Some people say this will lead to a Constitutional crisis, but that is purely partisan balderdash. Mr. Trump is creating a Constitutional challenge, and frankly, it’s about time.

Challenges involving the separation of powers under the Constitution is nothing new. Resolving them has been one of the fundamental duties of the Supreme Court. These challenges often arise during times of crisis, especially when one branch of the government becomes complacent and essentially ineffective.

If we had a truly functioning Congress, rather than a partisan playground, no president would feel the need to encroach upon the legislative powers of Congress by issuing executive orders.

Executive orders are supposed to align within the guardrails of laws passed by Congress, not create new policy or abrogate those laws.

It can be a delicate exercise deciding which path any executive order takes, and therefore, whether or not it is within or without the bounds of presidential authority.

A recent decision by a federal district court judge in Washington is illustrative of the issue. The AFL-CIO and other unions had sought a Temporary Restrainer Order to prevent DOGE employees from gaining access to records at the Department of Labor, the Department of Health and Human Services, as well as the Consumer Financial Protection Bureau.

The question for the court was whether or not DOGE is a federal agency. If DOGE is a federal agency, then it would have the power to send employees to other federal agencies under a theory called “detailing”. The idea is to let agencies share employees if a need arises.

Sadly, the judge did not render an opinion about the mechanics of this detailing or what functions the detailed employees could perform or under whose direction. Rather, the judge just focused on whether or not DOGE is a federal agency.

This is where the rub comes regarding presidential power. On January 20^th, Mr. Trump issued an executive order: “This Executive Order establishes the Department of Government Efficiency to implement the President’s DOGE Agenda, by modernizing Federal technology and software to maximize governmental efficiency and productivity… The United States Digital Service is hereby publicly renamed as the United States DOGE Service (USDS) and shall be established in the Executive Office of the President.”

According to its website, the United States Digital Service “…collaborate[s] with public servants throughout the government to address some of the most critical needs and ultimately deliver a better government experience to people. We work across multiple agencies and bring best practices from our various disciplines, which include engineering, product, design, procurement, data science, operations, talent, and communications.”

Sounds good huh? I don’t see anything in the United States Digital Service mission statement about “…modernizing Federal technology and software to maximize governmental efficiency and productivity.”

Don’t get me wrong. I’m all about maximizing governmental efficiency and productivity, but I am much more about our government adhering to our Constitution.

Let’s get back to this recent case. The judge decided, at least on a temporary basis, that the unions representing the employees at the Department of Labor, the Department of Health and Human Services, as well as the Consumer Financial Protection Bureau, failed to demonstrate that DOGE is not a federal agency.

In essence, he allowed the president to repurpose the objectives of an agency with the stroke of a pen, thereby giving that agency a new mission that comports with his agenda. Full steam ahead and damn the torpedoes.

Let’s be honest here. The purpose of DOGE is to shrink the federal work force. The cover is that by making it more efficient with the infusion of Elon Musk’s Brainiac’s, such reduction in force will naturally flow. I get it.

Nevertheless, something about this process makes me queasy. If a president can move federal workers around like chess pieces in order to fulfill a campaign promise, I’m not sure that’s the best recipe for stable government.

In any event, this case, like so many others will keep the courts busy, with the ultimate prize being a Supreme Court ruling. That’s a good thing given the composition of the Court. It may not always be to Mr. Trump’s liking, but the end result should be a government that is not just more efficient, but more faithful to its Constitutional mandates.