DOGE Can Tackle Debt By Returning To Constitutional Spending

President Donald Trump is determined to tame the bloated bureaucracy beast. To that end, he has appointed, in spectacular fashion, Elon Musk and Vivek Ramaswamy to head up a new “Department of Government Efficiency” (“DOGE”). In their pathbreaking op-ed in The Wall Street Journal on Nov. 20, Musk and Ramaswamy laid out their mission: “We won’t just write reports or cut ribbons, We’ll cut costs.”

With the nation now $36 trillion in debt — or about $100,000 for every man, woman, and child in America — that mission is long overdue. But judging from the hyperbolic reaction even the mention of budget cuts has generated in the deep state and among its sycophants in the corporate media, Musk and Ramaswamy will face enormous headwinds.

One of those will undoubtedly be the Congressional Budget and Impoundment Control Act of 1974. Enacted in the wake of President Richard Nixon’s attempt to “drain the swamp” a half century ago, the act requires the president to seek and obtain Congress’s approval before declining to spend appropriated funds — which kinda defeats the purpose of impounding excessive spending that Congress itself enacted. Section 1012 of the act voids any presidential rescission of funding unless Congress votes on a rescission bill within 45 days of being notified of the president’s intent to rescind funds.

Because several court decisions dating back to the 1970s and 1980s ordered presidents to spend appropriated funds unless Congress approved of the impoundment — rejecting claims that the act unconstitutionally intruded on the president’s authority — one might be tempted to think that the act is more like a brick wall than a headwind for DOGE’s mission. But that would be wrong. None of those cases addressed the key constitutional issue, namely, whether the president could refuse to expend funds that exceeded Congress’s authority under the “spending power,” as that power was originally conceived.

A Dispute since the Early Days of the Republic

The spending power is contained in the enumerated power given to Congress to raise taxes. The funds raised through taxation are to be spent only for two purposes set out in the text — to pay the debts of the United States, and to provide for the common defense and general welfare. Just how broad — or narrow — that second power is has been a subject of dispute since the earliest days of the republic. President James Madison thought it only gave Congress the power to spend in furtherance of the other powers enumerated in the Constitution. Alexander Hamilton, as Treasury secretary, argued more broadly that it was a separate, stand-alone power, but even he thought the spending must be for national (“common” or “general”) purposes, not local purposes. President James Monroe adopted that position in his 1822 message vetoing a bill to repair the Cumberland Road, contending that the spending power was limited “to purposes of common defense, and of general, national, not local, or state, benefit.”

In an 1817 letter to Albert Gallatin, Thomas Jefferson noted that the different views on the scope of the spending power was “almost the only landmark which now divides the federalists from the republicans.” It was an issue on which Jefferson prevailed with his election in 1800, and his narrower interpretation remained the view of almost every president in the first 75 years of our nation’s history.

John Quincy Adams’ embrace of an overly broad view of the spending power contributed significantly to his defeat to Andrew Jackson in the presidential election of 1828, after which Jackson promptly put to rest “this dangerous doctrine” by vetoing a major pork bill that Congress had passed. And President James Polk vetoed a similar bill during his presidency, which had provided $6,000 for projects in the Wisconsin Territory (permissible under Congress’s broader authority over the territories) but which was loaded down with $500,000 for a myriad of pork projects in the existing states. Said Polk in his veto message: Interpreting the spending clause to permit such appropriations would allow “combinations of individual and local interests [that would be] strong enough to control legislation, absorb the revenues of the country, and plunge the government into a hopeless indebtedness.”

Spending Must be for the ‘General Welfare’

In 1936, the Supreme Court weighed in, asserting in United States v. Butler that Hamilton’s rather than Madison’s view was the correct one, but its actual holding in the case — invalidating a spending bill because it did not further any of the enumerated powers bestowed on the national government — was much more in line with Madison’s view than Hamilton’s. Moreover, federal spending still had to further the “general” welfare, as the Constitution’s text requires. That limitation was largely eviscerated, however, a half-century later in South Dakota v. Dole, in which the court essentially deferred to Congress to determine what furthered a “general welfare” purpose, almost as though this important constitutional limitation were a non-justiciable political question.

Whether or not the court was correct to defer to Congress’s determination on what furthered “welfare,” it was clearly incorrect in declining to enforce the “general,” which is to say “national,” limitation contained in the text of the Constitution. That judicial abdication needs to be challenged, and the DOGE mission articulated by Musk and Ramaswamy to cut spending will present a viable opportunity to do so.

Eliminating Local Spending

DOGE should therefore begin by proposing to eliminate funding that furthers only local rather than truly national interests. Instead of begging Congress for permission to begin to dig the nation out of the “hopeless indebtedness” into which its unconstitutional spending has plunged us, the president should simply assert that his constitutional duty to take care that the laws be faithfully executed forbids him from expending funds for unconstitutional purposes. That constitutional authority “trumps” any requirements imposed be a mere statute, and President Trump, with his electoral mandate, is just the person to restore the “general” to the general welfare clause.

Dr. John Eastman is a senior fellow of the Claremont Institute and author of the spending clause entries in the Oxford Encyclopedia of Legal History and the Heritage Guide to the Constitution.