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The Constitutional Crisis Is Here

The Atlantic

www.theatlantic.com › politics › archive › 2025 › 02 › trump-musk-congress-constitution › 681568

Sometimes a constitutional crisis sneaks up on you, shrouded in darkness, revealing itself gradually. Other times it announces itself dramatically. Elon Musk, to whom Donald Trump has delegated the task of neutering the congressional spending authority laid out in Article I of the Constitution, could hardly be more obvious about his intentions if he rode into Washington on a horse trailed by Roman legions.

“This is the one shot the American people have to defeat BUREAUcracy, rule of the bureaucrats, and restore DEMOcracy, rule of the people,” Musk wrote at 3:59 a.m. today on his social-media platform. “We’re never going to get another chance like this. It’s now or never. Your support is crucial to the success of the revolution of the people.” Here is Musk, as proxy for Trump, casting himself as a revolutionary force and embodiment of the popular will, demanding extraordinary powers to fight some unstated emergency.

Why, exactly, is eliminating these programs right this very instant so important? If, as Musk says, they are teeming with waste and fraud, presumably Congress could pass legislation to reduce or eliminate the problem, and if that were to fall short, it could try again later. Instead, Musk cites a vague crisis that requires suspending normal operations and concentrating power in his own hands. According to various reports, he is holed up in the Eisenhower Building with a small team of young engineers who possess neither government experience nor the authority to question his impulsive judgments, on the hunt for Marxist plots lurking within long-standing federal programs.

[Jonathan Lemire: Elon Musk is president]

The situation exposes a well-known flaw in the design of the Constitution. The Founders, famously, failed to anticipate the rise of political parties. They assumed that each branch of government would jealously guard its own powers, and thus check the others. But political parties created a different incentive system, in which members of the legislative branch can see their role as essentially employees of the president. Trump, who has convinced the Republican base that his interests are indistinguishable from the party’s and transposed his overbearing Apprentice boss persona onto his relations with co-partisans in Congress, is exploiting these incentives more than any other president in history.  

In theory, Congress ought to revolt against the prospect of Musk deciding which federal programs should live and which should die. In reality, its members largely share Trump’s goals—and to the extent that they don’t, they correctly fear that opposing him would invite a primary challenge. What’s more, this particular constitutional crisis has an inherent partisan asymmetry. If Trump and Musk succeed in taking the power of the purse from Congress, they will effectively reset the rules of the game in favor of the right. Congress’s spending powers would be redefined as setting a ceiling on spending, but not a floor. A world in which the president could cut spending without exposing Congress to accountability would hand small-government conservatives the opportunity to carry out policies they’ve long desired but been too afraid to vote for.

And so, although a handful of conservative intellectuals, including the budget wonk Brian Riedl of the Manhattan Institute and the law professor and former Bush-administration lawyer Jack Goldsmith, have described Musk’s ambitions as unconstitutional, most of the establishment right has cheered him on or stayed quiet. Senator Thom Tillis of North Carolina conceded that Musk’s project might not be strictly constitutional, but nonetheless told the news site NOTUS that “nobody should bellyache about that.”

Making things even more disturbing is the chaotic legal gray area in which Musk is operating. Musk and his team are working in secret, without hearings or public debate. According to Wired, they gained access to the Treasury Department’s federal payment system, shoving aside the long-time staffer overseeing it and ignoring its safety protocols. Democrats suspect that Musk is breaching numerous federal laws, but without any oversight, it is hard to tell precisely what he is doing. In any case, Musk might not have much reason to care about following the law. Trump has already made plain, by issuing mass pardons and commutations for the January 6 insurrectionists, that he will protect illegal conduct on his behalf.

Meanwhile, Musk has adopted Trump’s habit of deeming opposition to his actions inherently criminal. He has called the United States Agency for International Development, a decades-old program with support in both parties, a “criminal organization.” After an X user posted the names of the young engineers working with Musk, previously reported by Wired, he responded, “You have committed a crime.” The X user’s account has since been suspended.

Reporting on the identities of powerful public officials is, in fact, not a crime—even, or especially, if those officials have assumed public powers without going through formal channels. Musk has nonetheless gotten backup for his threats from Edward R. Martin Jr., a former “Stop the Steal” organizer whom Trump installed as U.S. attorney for the District of Columbia. In a vague but menacing message posted (naturally) on X, Martin warned that “certain individuals and/or groups have committed acts that appear to violate the law in targeting DOGE employees.” Martin declined to identify either the individuals or the laws they’d allegedly broken, nor did he acknowledge that reporting about or criticizing Musk’s work constitutes First Amendment–protected activity. Whether Martin acts upon these threats remains to be seen. In the meantime, however, he is contributing to the atmosphere of menace surrounding Trump and Musk by delivering their threats with a legal sheen, like some kind of MAGA Tom Hagen.

[Read: The ‘rapid unscheduled disassembly’ of the United States government]

The courts will have the final say over Trump’s audacious power grab. In all likelihood, they will affirm congressional authority to set spending levels authorized by the Constitution. But the Constitution ultimately means whatever five Supreme Court justices say it means. The Court’s more conservative justices often apply the most right-wing interpretation of the text they can plausibly defend, and occasionally one they can’t plausibly defend.

What’s more, Musk seems to have intuited that he can destroy programs and bureaucratic cultures faster than the system can restore them. Firing officials en masse, throwing the people and clients that rely on those programs into confusion and financial risk, and striking fear into the whole federal apparatus can break down the institutions and destroy their institutional knowledge. Rebuilding is painfully slow; destruction is rapid. This may be the dynamic Musk has in mind when he insists that his work must happen “now or never.”

Not even the most committed small-government-conservative lawmaker would design a process like the one now occurring: a handful of political novices, many of them drinking deep from the fetid waters of right-wing conspiracy theorizing, tearing through the federal budget, making haphazard decisions about what to scrap. And indeed, no elected body has designed this process. Trump and Musk have arrogated the power to themselves. The true urgent cause is to return that power to the legislature before the damage becomes irreversible.

America Needs a Mirror, Not a Window

The Atlantic

www.theatlantic.com › politics › archive › 2025 › 02 › trump-historical-analogies › 681561

A friend of mine, an old-fashioned and very capable scholar, views analogies as the first step on the road to perdition—and, even worse, to political science. These days, he is right to scowl more than ever, because on top of watching Donald Trump trash precedent and common decency, launch initiatives that are likely unconstitutional, and behave vindictively and erratically, we also have to deal with a wave of ill-conceived analogies.

Even sober writers who know that the argument ad Hitlerum is always problematic are now using it. Or they invoke Benito Mussolini, or Viktor Orbán, or Hugo Chavez, or any of a number of other thuggish saboteurs and wreckers of democracy to help explain the current American moment. The words fascism and fascistic appear regularly. It is all terribly misplaced.

Take the word fascism, properly applied to Franco’s Spain or Mussolini’s Italy, and to some extent beyond. The fasces were the bundles of rods carried by Roman lictors: symbols of punishment and magisterial authority, but in modern times also of a tightly unified society controlled from above, and organized in corporate form. The desire of totalitarians everywhere is to achieve harmonization, with all of society marching in military cadence under the guidance of an omnipresent government.

But the Trump administration is more interested in blowing up the state than in extending its power. Its ideologues, such as they are, are reacting to what they think of as government overreach. They will abuse executive power to do it, but they want to eliminate bureaucracy, not grow it.

Trump himself is not Mussolini, or Hitler, or Orbán—two of them soldiers with creditable war records, the third an activist against a dying Communist regime. Trump was a draft dodger by choice and a grifter by trade, and more important, he does not read. Unlike others in his orbit, he does not have ideas so much as impulses, whims, and resentments. He is, to be sure, cruel and malicious, but unlike the others, has no real governing vision.

[Christopher R. Browning: A new kind of fascism]

Nor is the United States like other countries in which democracy has perished. America has nearly a quarter millennium of legitimate self-government under its belt, unlike, say, Weimar Germany, which never had a majority coalition of parties that favored democracy. The U.S. has not experienced in recent years anything like the slaughter of World War I, the murderous chaos of post–World War I Europe, or half a century under the Soviet boot. It is a continental empire, as the Founders called it, and they argued—correctly—that its physical vastness, the diversity of its population, and the multilayered nature of its government would form unequaled (if never impregnable) obstacles to the mob rule or the despotisms experienced by city-states. It is not only much older than the democracies that failed or faltered in Germany, Italy, and Hungary, but nearly an order of magnitude larger in physical extent.

MAGA ideology is itself difficult to define—it lacks a poet like Gabriele d’Annunzio or a propagandist like Alfred Rosenberg to explain it to the masses. In fact, it reflects disparate and divergent tendencies, including the divisions between Silicon Valley techno-futurists and old-fashioned nativists, libertarians and pro-lifers, isolationists and those who look to confront China. In some respects it is ugly indeed, but unlike the ethno-nationalist movements of the right, the MAGA movement has grown more racially diverse over time (although there are racists in it and Trump is perfectly willing to exploit racist tropes), and it is more hostile toward government than eager to expand it.

Nor is it anti-Semitic—just the reverse, in fact. The Jews are the proverbial canaries in the coal mine of Western civilization, and the undeniable truth is that MAGA is not only pro-Israel but anti-anti-Semitic, and sometimes fervently so. For Jews (like myself) and philo-Semites who despise Trump and Trumpism, that is a jarring thing to admit. But if you cannot handle cognitive dissonance, you cannot think clearly about politics.

Analogies have their place, although they are most useful as a means of sharpening our understanding of what is different about the past (and the past is always different) rather than purporting to explain the present or predict the future. Sometimes, analogies help us ask the right questions as well.

But for the most part, they are a distraction. Trump and Trumpism, the servility of the Republican Party, and the flight from a values-informed foreign policy are all thoroughly American phenomena, and need to be understood in that way. History can help us see not so much where we are going as how we got here, and the nature and magnitude of the political challenges we face.

Some Democratic politicians, such as Representative Richie Torres of New York, understand this, which is why they are using the moment to reflect on how their party lost the working class rather than to bleat in unremitting outrage. But there is much more to be done. How did the presidency end up with such excessive powers vis-à-vis Congress and the judiciary? Why have so many Americans come to mistrust the government’s expertise and its ability to serve them well? What led them to put in office for a second time an odious and erratic felon? The answers will not be found merely in excoriating one administration or two. These problems have been long in gestation, and only by acknowledging that can we reckon with them.

The despicable parts of the Trump enterprise are best understood in an American context, too—not through the framework of Mussolini’s goons administering castor oil to intellectuals, but rather through the cruelties of Andrew Jackson, America’s ur-populist, who presided over the Trail of Tears. Or think of the Palmer raids in 1919 and 1920, the FBI snooping on Martin Luther King Jr. (among others, to the fascination of the Kennedy administration), loyalty oaths, Ku Klux Klan marches, the incarceration of Japanese Americans during World War II—all of these help illustrate how America has gone astray in the past.

The personalities that so many find alarming in the Trump administration are best understood not as native variants of Martin Bormann and Nicolás Maduro, but as authentically American demagogues in the mold of Huey Long and Father Coughlin, not to mention business geniuses with wild and reprehensible ideas, such as Robert McCormick and Henry Ford. Indeed, it is only by seeing Trump’s subordinates and henchmen in their American context—in a land that has produced its share of racketeers, bullies, and thugs—that one can understand them at all.

For thoughtful patriots, the Trump moment needs also to be a reckoning with American history. We must come to accept that we are the country that was born with, and in some cases even embraced, the curse of slavery, but also with the principles that ultimately undermined it and which inspired the self-sacrifice of heroes who destroyed it. We despoiled much of our fabulous birthright of natural resources and beauty but also preserved huge swaths of it by creating the greatest national-park system in the world. We have supported dictators, and we have liberated nations. We produced Aaron Burr and George Washington, Preston Brooks and Abraham Lincoln, Donald Trump and John McCain. Historical analogies cause us to stare out the window, when what we really need to do is look in the mirror.