Congress will not just play dead against Trump, DOGE

The flurry of activity at the start of the second Trump administration has engendered great enthusiasm on one side and strong protest on the other. In particular, some wonder whether the balance of powers among the branches of government have been fundamentally altered

a record number of early executive orders. But even more pointedly, the role of Elon Musk and his Doge teams picking a part of the line by line spending of various government departments has some wondering whether the executive branch is ascended and Congress is a doormat.

Undoubtedly, the Trump orbit had four years out of office to think about a string of changes in the first 100 days. Many of these executive procedural changes, some of which were previewed late in his last term, pushed the envelope in questions of how possible it is to move, reassign and fire federal government employees, in how individual spending line items might be scrutinized, paused or even stopped, and in the use of acting head of agencies, all will be challenged, and courts may limit some of these actions, but the reaction against these changes, especially against Elon Musk and the role of Doge, often misstates what the executive branch can do. The extreme version of this argument is that every executive action is a game of Mother, may I where Congress would have to approve the assignment of an employee the subscription to a newspaper and the scrutiny of every grant payment. Broadly speaking, executive branch employees are not tenure professors or lifetime judges, however, many of them have civil service protections which allow them to challenge firings or performance reviews, but these employees can be reassigned, investigated, and in some cases, incentivized to resign. And while the firing of civil service employees may be more cumbersome than in many private sector entities, this power does exist in the executive branch, an even more questionable charge is that Doge employees should not be able to access database information about payments or perhaps tax or health information. A recent court order worried about the clearances, status and rules of access that employees might need to look at databases while there are practical concerns and safeguards on securing data. It is also true that many government employees have access to IRS files, health files, personnel and financial files. They need this access to carry out their daily work. It is sensible that there are often strict rules about releasing personal data to the public, searching to look up public personal acquaintances information, or trading off of information. It also makes sense to have training requirements, but no one should question the ability of the President, his secretaries and other political appointees and their designates to access executive branch information at the end of the day, Doge, which was an outgrowth of the pre existing digital service, should have access to many government databases.

It is also not unusual for the executive branch to be able to look at contracts, pause them, terminate them, or bring public light to them. Of course, there are exceptions, especially where Congress has provided detailed instructions or restrictions. But in the day to day workings of the executive branch, these actions take place all the time. Will courts trim the sales of Doge, almost certainly, they may rule that certain employees were wrongly fired, or that certain pauses in spending for very specifically authorized purposes must be lifted, or that certain executive orders contradict the clear wishes of Congress. But in the end, they will allow the executive branch to be the executive branch not limited in every step it takes, and for those who worry about executive overreach, Congress will have its say. It is notable that while all of the commentary of the latest discovery of outrageous government spending is proceeding, we are at the same time going through the annual budget and appropriations process. Congress will weigh in on these issues, blessing some of the findings and proposed changes of Doge and opposing others, and even though the same party controls the White House and Congress, there will be debate and ultimately compromise. Congress will not be quiet on all of these issues. The level of cuts, the fate of programs identified neutered by Doge, will soon give way to some word from Congress. Many Democrats will not like the outcome, because many Republicans of Congress will agree with the direction of Doge, but there will be some pushback, even from Republican members of Congress.

The balance of powers among the branches is not a static matter. There is the push and energy from branches of government and the parties that control them. So while the overall balance may shift, it will still be a process heavily overseen by the executive, legislative and judicial processes, and each of these branches are directly or indirectly affected by the regular elections we have to populate the institutions of our Republic.