Donald Trump is rapidly laying waste to the federal government. The president has enlisted Elon Musk and his DOGE assistants, who, under unclear authority, appear to be following Musk’s chaotic regime-change playbook from his takeover of Twitter: Wreak havoc first and deal with the consequences — if there are any — later.
For a sharper view on how all this is playing out, I spoke with Don Kettl, a professor emeritus and former dean at the School of Public Policy at the University of Maryland, who is a nationally recognized expert on the inner workings of the federal government. We discussed the legal strategy behind Trump’s blitzkrieg attack on the government, the rivalry Musk may face going forward, and Democrats’ prospects for fighting back in the courts.
Among other things, this administration has, with Musk’s assistance, attempted a federal funding freeze, then taken it back amid public outrage. They’ve pushed out inspectors general and top FBI officials, gutted USAID, and offered almost every federal employee a legally shaky buyout. What’s your overall impression of the last two weeks?
In some ways, it really is a tale of two presidencies. Whether you agree with the policy goals or not, the first week was, administratively, a work of art — just the process of taking, for example, what had been an existing pattern of being allowed to put people on unpaid leaves and transforming it into something that would allow the administration to engage in reductions in force. From there, it escalated into the directive to eliminate DEI programs throughout the federal government by putting people on paid leaves of absence. It was a kind of minuet that was truly remarkable in its power, sophistication, and speed, the likes of which I don’t think we’ve ever seen before.
But this last week has been a different kind of story. There was the buyout that isn’t a buyout, which may not be legal to begin with. There was the problem of the freeze on federal grants, from which they had to backtrack almost immediately. Those are the two big initiatives for which they seemed to have been somewhat prepared, but which emerged administratively half-baked and caused a lot of confusion and a lot of political embarrassment. It leaves some uncertainty about who is actually running the administrative show on this. The suspicion is that some of this came out of Muskworld and that the folks there are single-minded in their pursuit to transform the federal government, and to follow the Silicon Valley rule of moving fast and breaking things. But the problem is that some of this may conflict with the law or may politically cause a lot of blowback for the president.
The freeze seems to have originated inside OMB (Office of Management and Budget), but before Russell Vought has been confirmed. And so it could be that once he is confirmed and in place, that some of the chaos inside OMB will disappear, because he’s an old hand with a clear vision and knows how to run the show. In terms of the politics, the battle that’s clearly shaping up is between Vought and OMB on the one side and Musk and OPM (Office of Personnel Management) and GSA (General Services Administration) on the other. And this promises to be a WWE cage match, the sort that we haven’t seen in the federal government in a long time.
I love both of them, so it’s hard to root for just one.
The thing that’s really important, I think, is to step back. There’s a strategy underlying all of this, and that is an assertion of presidential authority under Article II of the Constitution, which says the president shall have the executive power. They intend to redefine what that means. It has always been clear that the president is chief executive, but there’s always been the question of constraints, through balancing power with Congress. The battle that they’re trying to provoke intentionally is whether or not the president has power once Congress passes a law to execute the law as he sees fit. That’s the big question. They’re clearly pushing the boundaries in every conceivable way because they’re spoiling for a fight. And they want this to go to the courts because they think that there’s a fair chance that they’re going to win.
After all, the Supreme Court has a group of people who are both a majority Trump appointee or Trump-leaning and people who are originalists as well, and they believe that the originalist interpretation of the Constitution backs up the position that they’re taking.
How do you see a Vought-Musk fight playing out if Vought is confirmed, which it seems like he will be?
Make no mistake that Vought has very, very big ideas, very much along the lines of what it is that Musk and the president want to do. It’s worth going back and looking at just the first few paragraphs of Vought’s chapter in Project 2025, because he lays out the plan and makes clear that he sees this as a big battle. But what’s important is that Vought has an incredibly detailed knowledge of precisely what the federal government is, precisely how it works; he’s got a vision that, in some ways, is broader than Musk’s, and a background that better prepares him to carry it out. Musk, on the other hand, wants to break things more fundamentally. And so the question is, who’s going to win in this battle? And we are going to see, I think, a series of conflicts.
A footnote to this is that there’s been this talk of, “Well, when is Musk going to wear out his welcome, and how many clumsy efforts will it take to really blow him out and squeeze him out?” And make no mistake, there’s going to be a battle inside the West Wing over this question. But Musk has two things going for him. One, he’s got a big war chest, so anybody who crosses the president on the Hill could find themselves primaried with Musk bankrolling it. On top of that, Musk has control of X. So he’s got the platform from which to fight back.
The battle that’s shaping up is, in some ways, between the guy you can’t do without because he’s got this enormous leverage, and the guy you can’t do without because he’s got the knowledge to be able to make the strategy work.
You say that they want to set up court challenges, which seems reasonable for actions like firing the inspectors general, since it seems likely the Supreme Court would rule that the Trump administration has the executive authority to do that. But what about things like the funding freeze, which seems much more legally shaky?
The battle there that they want to try to provoke is over the president’s impoundment power. They want to go back to the Nixon era and try to win the battle that Nixon lost. They believe that the president should have the Constitutional power to be able to impound funds, and they want to try to provoke that fight again. They want to try to upend some of the provisions of the Congressional Impoundment Act that was passed to try to prevent this from happening. So it is clumsy in some ways, but they also want to try to assert the president’s power, and they hope that the Court will affirm that.
That would be seismic, because then what’s Congress even for? They’re supposed to have the power of the purse, but the president can just veto them on anything? That seems to be a total realignment of the separation of powers.
It is. It’s absolutely seismic. To step back for a second, there’s the Supreme Court’s decision at the end of the last term that upset the Chevron Deference doctrine. This is really getting down into the weeds, but essentially it said that the Congress has the power to be able to write law, and if it doesn’t like what’s happening, they have the responsibility to write a different law or to amend existing law. So it bounces things back to Congress to redefine what the law is.
The flip side of that is the interpretation that no administrators can make up what they think ought to be done based on their technical expertise, but the president, as chief executive, can direct the actions of the executive branch. So it’s a distant first cousin to the decision overruling Chevron. The president’s legal team thinks they can win this. The argument is that Congress has the absolute authority to pass the law, but anything that Congress doesn’t specify, the president has authority to be able to do it. And that, in addition, the use of executive power ought to extend to the ability to be able to fire federal employees, because as the chief executive, he has the power to see that the laws be faithfully executed. And if he believes that that requires fewer employees, he ought to have the authority to be able to dismiss them. And he ought to have the power to impound funds. It’s exactly the kind of thing around which Watergate tended to hinge. This is an effort to make the point that the president has a basic executive power of the sort that Nixon reached for and was never able quite to pull off.
I was reading your recent post at The Bulwark. You note that we “may see articles arguing that one action or another action taken by Trump resembles something that a previous administration did,” but “the Trump restoration is simply unlike anything that we’ve seen before.” So it is kind of like Nixon, but not on the same scale?
Exactly. To go back to what I argued there, I think what they’re doing is an expansion in terms of scope and scale of the sort that, in many ways, Nixon only would’ve dreamed of. When it comes to the issue of federal employees, there was the famous Malek Manual back in Nixon times, which included strategies for squeezing out federal employees. But they’ve gone way past that, in terms of both the guardrails and in terms of the basic approaches and theories. There’s just nothing like this that’s ever happened. The comparison to Nixon — that’s the closest thing that anybody’s ever tried. And when it was tried, Nixon was forced back both by Congress, including congressional Republicans, and by the courts.
And modern-day congressional Republicans don’t seem to care. They’ll just do whatever Trump says.
Exactly. They don’t care, and they’re not engaged. Even if they do, it’s not clear that they’re prepared to act, because Congress is having a hard time actually doing anything. So it’s a terrific time for a president to make the argument about executive power. The counterargument is that this is limited by the power of Congress. But they know that there’s no limit that will emerge as a result of Congress, which would then toss the question into the courts for the ultimate decision.
Going back to the effort to get federal workers to make their lives as hard as possible — Musk has people planted in various agencies, and he’s trying to drive people out by offering them these sort-of buyouts. Nobody knows if they’re even legally binding. Do you think this is going to work?
Let me answer that on a series of levels. First, he has terrified every federal employee. And so it’s worked, if nothing else, in terms of at least scaring everyone to the point of digging deep foxholes and keeping their heads down. The next level is that there are some employees working for some agencies who rightly are worried that there will be an effort to get rid of them. And there is the paid-leave-of-absence strategy that amounts to a reduction in force. There is the effort to try to pull back remote work, because they know that a fair number of employees simply won’t like that, and so they’ll get rid of them that way. And then ultimately, there is the assertion of the president’s power to put people involved in a policy position in this new schedule and then to make them at-will employees. This doesn’t mean that they’ll be fired, but it does mean that they’re essentially on notice, that if they do anything, they could be gone.
I know some people who work for the federal government. That “Fork in the Road” email they received strikes me as a tactic that could backfire because his people are coming in and outright saying, “You’re useless. Get out of here.” I think people might dig in their heels, if anything, because it’s so insulting.
Yeah. It’s insulting. It does clearly represent a notion these folks really don’t know what the agencies do. You could see that in Kash Patel’s hearing to lead the FBI and Kennedy’s to run Health and Human Services. It’s clear that these folks don’t really have an in-depth knowledge of the agencies that they might be about to take over. So the question is, will they quickly be schooled in the realities and discover some of the stuff they can’t, shouldn’t, or won’t blow up?
But still, there’ll be pressure to squeeze out large numbers of federal employees because they just view them as the deep state, and who will resist what they’re doing? Plus, there’s no doubt that this is an effort focused primarily on some agencies in particular. We’re talking about EPA, we’re talking about Justice, we’re talking about Homeland Security and the FBI. But now the tentacles are reaching even into the nerve center of government, like the payment system at the Department of Treasury.
Yes, this weekend we had the secretary of the Treasury granting Elon Musk’s lieutenants access to the federal government’s payment system, including people’s personal financial information, raising the possibility that they could simply turn off payments to people they don’t like. We also had Musk’s people demanding to see classified information at USAID that requires a certain security clearance. When two officials there refused, they were placed on administrative leave, and Musk’s people reportedly got access to the information anyway. So we’ve got an unelected, non-Senate-confirmed person with no actual government position seemingly running wild in various federal agencies. Is any of this actually legal?
We don’t know, and the fact that we don’t know is in itself a problem. The issue here is, who’s doing the asking? Is it Elon Musk, the billionaire? Elon Musk, the huge government contractor? Elon Musk, the dinner companion of the president? Elon Musk, the person with portfolio but without position? Or is it Elon Musk, the special government employee? We don’t know. And it makes a big difference what the answer might be in terms of our ability to be able to trust the entire system. The fact that we don’t know, and as best we can tell, can’t find out, raises lots of questions about accountability and the rule of law here. We’ve always had a set of expectations that the people who exercise governmental authority are government officials who ultimately are accountable to all of us as voters, and to Congress as the co-equal branch. So we’ve got an enormous crisis in our hands simply in terms of basic government process.
Even if Musk is a special government employee, would what he’s doing be allowed under the law? Or is it fuzzy?
I’m just saying if he’s not a special government employee, it means he’s asking for it as some kind of individual citizen. And in that case, the disclosure of such wide-ranging information and influence over such wide-ranging governmental policy is enormously problematic. In some cases, it’s almost certainly illegal. In other cases, at the very least, it’s providing access that the rest of us wouldn’t have. And that’s huge. If he is a special government employee, then that raises a set of unprecedented questions in another respect. Because in general, I’ve been looking around and I can’t find another example of a special government employee, certainly in recent times, who exercised governmental authority of the sort in any way, let alone authority on this scale. The ability to be able to fan out across the government and to demand access to things, changes in policy, access to information, is something that itself is unprecedented.
And who are these people working for him? Does anybody know what kind of authority they have other than the fact that they are working with Musk? Are they special government employees or are they freelancing? Are they working at Musk’s bidding? The fact is we don’t know. And the fact that we don’t know and can’t find out is itself a problem of unprecedented dimensions.
Is there any hope for recourse, you think?
Maybe. There’s a battle obviously brewing inside the executive branch between what I’m calling the Musk-ovites on the one side and other forces around Trump on the other.
Musk-ovites — that’s pretty good.
But between the Musk-ovites on the one side and others around the president, some associated with Russell Vought, others who have been concerned that Musk is just getting too big for his britches. The first piece of accountability might be that there are others inside the Trump circle who want to try to trim him down. There are certainly reporters raising questions about the basic rule of law, and in terms of outsiders, that’s the most immediate form of leverage overall.
There is the possibility of filing a suit in a federal court. That means finding the right kind of issue with somebody who has standing on the right issue and then finding the right federal district court in which to begin the proceedings. That’s all kind of tricky and expensive too, on top of that. Who’s going to file suit? Where, and about what? And just because I say I, as an individual citizen, don’t like it doesn’t necessarily mean that I have standing to be able to file suit. And the Supreme Court’s been getting a lot more fussy lately about the question of standing. Then, of course, there’s Congress, but so far the Republicans have shown no intention whatsoever to stand up against Trump. And on the other hand, Democrats have been struggling trying to find points of traction and whether or not they can actually find a way to get anything done.
There’s the Government Accountability Office, which tends to investigate these issues. They take great care in doing the work they do. But their reports take time. So maybe we can look for the possibility of an investigation there, but that would take months. My single biggest worry about all of this is that the entire operation could be like a freight train that starts picking up more and more speed and becomes harder and harder to stop, so that even if somebody — the courts in six months or GAO in a year — says, “Wait, this is not right, should not have been done,” so much damage will have been done, so much china will have been broken, so many programs undermined that it’s going to be a Humpty Dumpty that can’t be put back together again.
This interview has been edited for length and clarity.
More From This Series
- Could the Supreme Court Back Trump on Birthright Citizenship?
- Why the Gaza Cease-fire Probably Won’t Last
- Los Angeles Shouldn’t Rebuild the Same Way Again
