Sauron Knows Elon Has the Ring: Will the Courts Take it Away?

The real battle has begun. In Does 1-26 v. Musk, Case 8:25-cv-00462-TDC in the District Court of Maryland (text here), a judge has ruled that Elon Musk has no authority to order cuts and that Trump has no authority to close an agency (USAID) created by Congress. The first point is largely legit and easily fixed—Musk’s status does need to be formalized in some way as an official exercise in Article II executive authority, or else all such orders have to come from POTUS and not DOGE.

The second one is a real issue that will inevitably get to SCOTUS.

The District Court judge wisely ducked the specific issue as to whether a president may refrain from spending the entirely of an appropriation and instead went to safer constitutional ground, declaring that abolition of an entire department infringes on congressional turf. My best guess is that that particular ruling will eventually be upheld in one form or another by SCOTUS.

It is established that the president has broad discretion about how to carry out the law or redirect resources within an agency or program. If Congress were to set aside a mere billion or two for a new agency created to investigate, arrest and prosecute those who remove the federally mandated mattress tags, desecrate LGTBQ+ public murals or use umbrella rigs for bass fishing, and if the president saw to it that this absurd agency made zero arrests, failed to hire a full staff of investigators and agents, and if the agency spent less than half its allocated funds, could Congress (or some private citizen) ask a court to order POTUS to do it differently and spend all the money? I think the answer is no. The only remedy for Congress would be impeachment.

But could POTUS simply shut down this absurd entity altogether? Probably not. So the constitutional issue would be how far the executive can go in not spending what Congress allocated. So what are the criteria for establishing that line?

My fear is that the administrative state is currently poised to win. On the one hand, it will claim to be the product of congressional intent and thus immune from executive cuts, while on the other hand, simultaneously claiming immunity from detailed congressional oversight under the umbrella of Article II executive powers. It can rely on the deeply partisan budgetary battles and the sheer size of the leviathan to make detailed looks at all spending almost impossible.

Neither the president nor Congress can significantly interfere with the preferences and sheer inertia of the administrative state under the political and legal status quo.

At some point, Congress needs to be tagged into the match. Either the entire budget needs to be overhauled in great detail (yeah, as if that could happen...) or perhaps there could be some means for issuing specific legislative OKs for newly proposed cuts without reopening the entire appropriations process. Trump and Musk have the right vision, the right criteria and now the logistical means (DOGE and AI) to do what needs to be done, but the bureaucracy and its powerful grifter networks will continue to play rope-a-dope in the courts unless and until Congress and the president are expressly on the same page to as to leave no openings for judicial mischief.