Blunting Their Attacks

In the face of a looming constitutional crisis, where the administration refuses to obey direct court orders, we are not without some final cards to play.

Image courtesy of Ethnic Media Services

Make no mistake, we’re already in a constitutional crisis. But it is deepening.

It began when, with the blessing of the White House, Elon Musk and his DOGE team seized control of critical payment, data and communications systems across U.S. departments and agencies, violating numerous laws along the way, including the Privacy Act and the Internal Revenue Code.

By authorizing payment freezes, Trump also violated the Impoundment Act and the constitutional separation of powers that grants Congress the power of the purse. The Founders required the executive branch to faithfully execute the laws of the land, not decide which ones it wants to follow and which ones it will disobey.

The most advanced and concerted attack was upon the U.S. Agency for International Development, or USAID. And that was no accident. The White House knows foreign aid is unpopular, so where better to test the limits of its power than a destruction of that agency? Also, the Russians and the Chinese hate USAID and its work on behalf of democracy, so they are helping spread lies by generating and amplifying false claims about what USAID does and how much it spends where.

And then there’s that pesky USAID investigation of Starlink in Ukraine that Musk now has made go away. How convenient. It’s part of a pattern of Musk attacking and seeking to gut the very agencies that would otherwise have regulatory authority over his many projects. “We spent the weekend feeding USAID into the woodchipper,” Musk tweeted triumphantly on Monday.

He then ratcheted up his dangerous and false rhetoric: “USAID is a criminal organization,” Musk posted. “Time for it to die.”

Musk’s saber rattling aside, here’s what we really need to understand. The White House knows that it can’t just eliminate a congressionally authorized agency such as USAID, so instead it’s trying to starve it out by cutting off funding and locking out its employees.

Those employees, through labor unions, struck back with a lawsuit filed early last week. And after plaintiffs demanded emergency relief, a Trump-appointed judge put a stop to the administration’s actions, as have other judges on other cases involving other departments, from the Office of Personnel Management to the U.S. Treasury.

That leaves the next critical move with the White House. Will it actually comply with federal court orders? Or will it ignore them, as both Musk and JD Vance have urged?

And assuming it does ignore the court orders, what then? There is some evidence this is already happening, with certain federal assistance payments still frozen. An open defiance from one of the defendants, including Trump, would see us careen quickly toward a constitutional cliff. After all, the rule of law with no ability to enforce it is no rule at all.

But can anyone, anywhere, do anything about this? Yes. The GOP and this administration remain vulnerable in two key ways that opponents of their actions can exploit. I’m going to explain what I believe those are, but first, let’s review how we got to this point. For this, I’ll use the crisis at USAID as a good case study of the White House’s and DOGE’s M.O. and what may happen next.

How they seized control of USAID

ProPublica published a comprehensive account of how Trump set about gutting USAID, including how Musk’s DOGE team seized physical control of USAID systems. Here are highlights from that piece, which give us significant insight into how the administration is attacking—or are planning to attack—other agencies and departments.

After Trump ordered a shut off to all foreign aid, his administration told staffers at USAID to cease all outgoing payments. When they protested that this violated the law, the official response was that Trump had a high tolerance for legal risk.

In other words, we’ll see you in court.

USAID’s IT department was ordered to hand the entire network over to DOGE engineers who then gained access to the agency’s financial system. Importantly, they were granted access as “super admins,” meaning they had immediate access to the personal info, files and emails of thousands of employees, according to two USAID officials who spoke to ProPublica. It included information gathered as a result of security clearance checks, such as social security numbers and credit histories.

This was a clear violation of the Privacy Act as well as the Administrative Procedures Act, as I’ve written about in other contexts. But don’t look to the new Justice Department to do anything. In fact, the new U.S. Attorney General wrote a letter to Elon Musk promising to investigate anyone who impeded his team’s efforts “and chase them to the end of the Earth.”

In other words, they’re on the bad team’s side already.

In addition to DOGE using its access to the IT system to cancel funding projects, the administration put hundreds of career staffers on administrative leave, or it simply locked them out of the system. It also recalled some 1,400 of USAID’s overseas foreign service officers with no notice and in violation of their employment rights.

The double-hit of putting workers on leave or refusing them access, alongside complete control of the IT systems that manage payments and hold all the critical data, is nothing short of a coup attempt. And it was being replicated in other departments.

Then federal workers, through their unions, struck a counterblow.

How the unions fought back

On Thursday, federal workers sued the Trump administration alleging that the White House was acting extra-constitutionally by gutting USAID without congressional approval. On Friday, the Hon. Carl Nichols, who was appointed by Trump, temporarily enjoined Secretary of State Marco Rubio, who is currently the self-appointed acting head of USAID, from placing 2,200 USAID employees on leave. He also ordered the reinstatement of 500 others.

Judge Nichols wrote that, without legal intervention, Trump’s order to put so many employees on indefinite leave and to immediately evacuate thousands of USAID employees overseas could cause immeasurable damage to their livelihoods—the very kind of “irreparable harm” that such temporary restraining orders are designed to prevent.

The administration had justified its full-scale assault on USAID by claiming, without basis, that USAID was rife with waste, fraud and corruption. In fact, money that goes through that agency is one of the most carefully scrutinized of all government expenditures. (If you’d like to understand exactly how strict and well-monitored the approval process for USAID funds is, read this thread by Jeremy Konyndyk, the president of Refugees International, who lays the process out in an accessible and clear way.)

Importantly, the administration had an opportunity to make its case for why it needed such broad access to stop alleged fraud and waste, but Judge Nichols noted that it had failed to provide any evidence in support of those claims and that a pause on its actions was therefore in order:

When the Court asked the government at the TRO hearing what harm would befall the government if it could not immediately place on administrative leave the more than 2000 employees in question, it had no response—beyond asserting without any record support that USAID writ large was possibly engaging in “corruption and fraud.” The Court thus has no difficulty concluding that the balance of the hardships favors the plaintiffs. A TRO as to this issue is warranted.

So why come in with a wrecking ball while remaining unprepared to back up your actions with any actual evidence? As Kyle Cheney of Politico noted, “Trump and his advisers have long planned to assert in court that presidents have sweeping power to withhold funding from programs they dislike.” USAID was a clear trial balloon that one judge decided to pop, at least for now.

A constitutional crossroads

Judge Nichols wasn’t alone in his balloon popping. Manhattan-based federal district court Judge Paul A. Engelmayer, in response to a request from a group of blue state attorneys general, issued a middle of night order this weekend blocking DOGE from further accessing Treasury Department records and ordering all copies of material downloaded from Treasury Department systems be destroyed.

MAGA leaders’ reactions to Judge Nichols’s and Judge Engelmayer’s orders were telling. JD Vance, who went to Yale Law School and absolutely knows what he is doing, tweeted that the judges’ rulings were “illegal” and that judges “aren’t allowed to control the executive’s “legitimate power.”

As every law student learns, however, ever since Marbury v. Madison, a seminal Supreme Court case from 1803, the federal judiciary has reserved for itself the power to declare whether a co-equal branch of the government has acted in excess of its constitutionally authorized powers. That’s why the executive can’t simply decide that its exercise of power is “legitimate.” That’s up to the courts, and Vance knows it.

Musk also came forward to indicate he had no intention of following direct court orders, retweeting a MAGA account that had declared, “I don’t like the precedent it sets when you defy a judicial ruling, but I’m just wondering what other options are these judges leaving us…”

This is now why we are at a critical juncture. If Trump orders the Treasury Secretary and the Secretary of State not to comply, or if on their own they declare they will not submit to the order of the court, then we are in a full blown constitutional meltdown.

Court orders are enforced through contempt proceedings, where judges can order the arrest and fine parties who do not comply. But if the Justice Department, under Attorney General Pam Bondi, refuses to assist these judges by ordering U.S. marshals not to respond, the courts will be left without recourse.

It is an open question whether Trump, Rubio, Bessent or others will act in open defiance, but we shouldn’t put very much faith in the Trump Administration to follow the law when it has so brazenly flouted it already. And we already know that Trump loves nothing more than to thumb his nose at judges.

If the administration defies direct court orders, that will cut off the last line of defense by the judiciary. And that leaves the American public with few options.

But short of locking arms and taking to the streets, which may yet have to happen, there are some important steps we can still take. These measures will up the stakes considerably, and if we play our cards correctly, they could even force the Trump administration to back down from choking off government funds and illegally disbanding whole departments and agencies.

I want to lay out two of those today.

How Democrats can fight back

The first thing we need to understand is that Trump remains highly popular, and even his current actions are seen by many voters as him trying to actually do something about “government waste.” But the same cannot be said for his “co-president,” Elon Musk. Musk has none of Trump’s charisma but all of Trump’s failings. And that is something we can exploit.

Musk’s popularity is already rapidly sinking. He is seen by many, correctly, as acting primarily in his own interest and as violating the rights of thousands of workers and millions of Americans through his “move fast and break things” approach. His net favorability has moved from +29 in 2016 to -11 in 2025. That’s a huge drop, and there’s no sign that it’s slowing.

While Secretaries Rubio and Bessent may risk sticking their necks out for Trump, they are far less likely to invite contempt orders to protect Musk. Instead, they could treat him as someone they can readily throw under the bus, which would have the added benefit of getting rid of an annoying, attention-grabber who has already worn thin his welcome. Recent polls show that a plurality of MAGA voters now have reservations with Musk and see his influence with Trump as too great. It’s time to leverage that fully.

Indeed, the more the current crisis can be pinned on Musk, especially if his actions precipitate an economic or political crisis, the more others inside the administration will distance themselves from him. The GOP governing coalition is already beset with rivalries between the MAGA radicals and the billionaire tech bros, and people like Steve Bannon are looking for opportunities to take Musk down.

That’s why Democratic officials, unions and left-leaning activists should concentrate their firepower for now on Musk and make him the bad guy at this juncture. As Musk starts to sink, watch Trump move to protect himself and say he never much agreed with Musk in the first place.

The second tactic is one suggested by the recent statements of Sen. Brian Schatz of Hawaii and Sen. Andy Kim of New Jersey. Both senators focus on the fact that while the Democrats are out of power in government, they are not without power to slow or even stop the seizure of the financial levers of the government by the Trump White House.

Sen. Schatz declared last week that he would use his right to withhold unanimous consent on all new state department appointees unless and until USAID was restored as an agency. This was a tactic used by Sens. Rand Paul, Ted Cruz and Tommy Tuberville to stall Biden-era appointments. Such a move would force each and every Trump appointment to go through a full round of regular process before the Senate, instead of batching groups of appointees through. It would mean the GOP Senate would have to decide between using its time to pass things like the budget or get appointments through. Other Democratic senators should be urged to join Schatz in his protest so that he is not a single target who is easier to bombard.

Sen. Kim also drew attention by suggesting over the weekend that he’s open to shutting down the government in order to protest the takeover of government systems by DOGE and the shuttering of whole agencies like USAID. Normally, it is the GOP that has threatened shutdowns when it didn’t get its way politically. Here, all the Democrats would have to do is pledge to do nothing—not lift one damn finger—to help the GOP pass its budget or lift the debt ceiling… unless the White House backs off of its attempts to shut off the money and furlough government workers.

The government faces a March 14, 2025 deadline to enact a new budget. Barring something truly wild, it almost certainly will have to lift the debt ceiling to do so. Hardliners within the GOP inevitably will use the opportunity to try and extract concessions by way of drastic spending cuts to popular programs. If the Democrats band together behind Sen. Kim’s call to “Just Say No,” as it were, then the budget disaster will be entirely in the hands of the GOP.

The thinking behind this strategy is simple. It ties Trump’s attempts to govern by executive order to a place where he cannot do so—the legislative budgetary process. Shackle him to that, and his options quickly grow limited.

It also forces some Hobson’s choices. Either the GOP will be unable to come to agreement (meaning the government will run out of money and the nation will default on its debts); or they will enact hugely unpopular spending cuts to earned benefits that will cause a revolt among their own voters; or they will back down from their extremism, reopen the flow of money and stop allowing the White House to dictate who gets paid out of already authorized funds. My bet is that they go with option three, but even if they don’t, all of these options would draw attention to the travesty of what is happening and force the nation to reckon with the constitutional crisis the Trump White House has created.

The beauty of this strategy is that it doesn’t require anything of Democrats except to refuse to play along. “Just Say No” forces the GOP to try and govern, which we know they cannot, and it calls Trump’s bluff on his impoundment of funds by refusing to allow any money to be spent anywhere until he releases his stranglehold on the funding he doesn’t like.

It’s admittedly a huge threat to put the full faith and credit of the U.S. Treasury on the line and risk crashing global markets by refusing to help Republicans pass a budget or raise the debt ceiling. But if we don’t do this, we have given up our country anyway to an authoritarian takeover. So we have little to lose.

Democratic voters can get behind this plan, too, by urging their representatives and senators to use the power of non-cooperation and defiance at every turn to help save our democracy. Trump and his billionaire buddies want to pass extensions of the Trump tax cuts, but they can’t do it with such a fractured GOP Congress. Indeed, as Ezra Klein astutely noted, “Trump is acting like a king because he is too weak to govern like a president.”

So let’s put that to the test. Even as we seek to stop or slow Musk for now with a barrage of lawsuits, and the administration responds by threatening to defy direct federal court orders, we have two very big cards left to play: their own division and incompetence.

Democrats must drive that wedge in now. They must say “no” to everything, up the ante to meet the threat to our constitutional governance, and demonstrate exactly how weak Trump and the GOP really are.