How the Supreme Court Paved the Way for DOGE
People may be looking to the federal courts, and ultimately the Supreme Court, to halt the massive destruction caused by Elon Musk and Donald Trump. But the reality is that the Republican Justices on the Supreme Court, through a series of decisions on campaign finance and executive power, laid the groundwork for much of the chaos of the Trump Administration. In fact, today’s mess is at least 15 years in the making.
[time-brightcove not-tgx=”true”]In 2010 Citizens United v. Federal Election Commission invalidated the federal prohibition on corporate structures spending money on their own political ads and messaging. Later decisions struck down federal regulations that capped how much any one individual could contribute to a corporate structure such as a political action committee and ended regulations that limited how much any one individual could contribute en toto. The effect was to allow superrich individuals to spend as much money as they would like on their own political advertising. So while Kamala Harris outspent Trump overall, Musk, the richest man in the world, was able to pour in almost $300 million to the cause of electing Trump. (And that’s in addition to using the social media platform he owns to support Trump’s candidacy.) In doing so, he helped himself to a seat at the table.
What’s even more galling is that the Court suggested Musk may have had a right to do so, and that if anyone had a problem with that, well, that’s on them. “[T]he First Amendment,” the Republican Justices insisted in one decision, prohibits “attempts to tamper with the right of citizens to choose who shall govern them.” “[T]he whole point of the First Amendment is to afford individuals protection against” “infringements” in the name of “the public’s interest,” they declared in another.
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In just the first few two months of Trump’s second term, Musk’s Department of Governmental Efficiency (DOGE) has recommended firing workers at the Food and Drug Administration, which oversees his neurotechnology company Neuralink, the Federal Aviation Administration, which oversees SpaceX, and the Consumer Financial Protection Bureau, which would oversee digital payment systems on platforms such as X. But the Republican Justices blithely insisted that would never happen, or, if it did, that it would not be cause for concern. In Citizens United, for instance, they proclaimed that independent political spending “do[es] not give rise to corruption or the appearance of corruption.” Also: “The appearance of influence or access … will not cause the electorate to lose faith in our democracy.”
The Court’s decisions on presidential power, meanwhile, laid the intellectual and legal foundation for the Trump Administration (and Musk) to assert sweeping power over the administrative agencies that make up much of government today. Five years ago, the Court declared that Presidents generally must have the power to remove officials within the executive branch who do a good deal of executing federal law. Justice Clarence Thomas and Justice Neil Gorsuch used that occasion to call for the wholesale elimination of independent agencies – an idea the Trump Administration has now embraced and invoked to try to fire the heads of the National Labor Relations Board, members of the Equal Employment Opportunity Commission, and more. (Recent reporting on the origins of DOGE confirms that the Court emboldened the Administration: According to the New York Times, “They liked their chances with a Supreme Court that Mr. Trump had transformed in his first term, with a majority that now favored an expansive vision of executive power.”)
The Court has, thus far, decided only cases about whether Presidents must be able to remove the heads of agencies. But the Republican Justices’ reasoning could extend much further than that –beyond agency heads, to many of the individuals within the federal government. Republican Justices claim that “all” of the executive power is vested in the President, and the Administration has used that idea to argue that, notwithstanding federal laws to the contrary, Presidents can remove inspectors general (who investigate fraud and corruption) as well as administrative-law judges (who help distribute Social Security benefits, among other things).
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The Court has even flirted with the idea that lies at the very core of what Trump and Musk are doing—an inclination to dismantle the federal government as we know it. Justice Gorsuch, Trump’s first nominee to the Supreme Court, has railed against “government by bureaucracy” and the “titanic administrative state.” He has urged the Court to revive cases that would prevent Congress from giving substantial authority to administrative agencies in the first place.
So as Trump and Musk attempt to gut agencies like the Department of Labor, the Department of Health and Human Services, the Environmental Protection Agency, the Department of Education, and more, they are demolishing the part of the federal government that the Republican Justices have, for decades, been seeking to raze in their own way.
The Supreme Court is likely to invalidate at least some of what Trump and Musk are doing. But we should brace ourselves for the reality that the Republican appointees on the Court are likely to be totally cool with a lot of what Trump and Musk are up to. The Justices, after all, planted the seeds for it.
People need to continue to show up to town halls and political events to express their dismay and horror at the prospect of Trump and Musk demolishing social safety nets and health, safety, and economic regulation. Those outpourings are reportedly already moving some elected officials. Because the courts were never going to be a substitute for Congress and the public standing up to a self-immolating executive branch. Especially this Court.