Advice for DOGE: Look at the Enumerated Powers

We’re within three weeks of the (hopefully) peaceful transfer of power. With the vacuum of leadership in the current administration, the world is already turning to President-Elect Donald Trump as the de facto leader, and change is underway. I expect there’s a lot more change to come.

The Department of Government Efficiency (DOGE) is not a new government agency or entity; it is to be a commission to make recommendations, which, as I understand it, would then have to be followed up by the legislative or executive branches, depending on what a particular recommendation pertains to. It is to be co-led by Elon Musk and Vivek Ramaswamy. Both are really smart guys. And Vivek, at least what I’ve heard from him, understands the Constitution pretty well. Elon has shown his ability to do nearly impossible things, one of which was to turn Twitter into X, with most of the employees gone, and make it now a much freer-speech platform. Maybe they can do the job.

A tweet Elon Musk put out in November, embracing the Doge meme
image that predates the creation of DOGE by more than a decade.

Here's what Wikipedia says about DOGE:

Musk has suggested that the commission could help to cut the U.S. federal budget by up to US$2 trillion through measures such as reducing waste, abolishing redundant agencies, and downsizing the federal workforce. Ramaswamy also stated that DOGE may eliminate entire federal agencies and reduce the number of federal employees by as much as 75%. DOGE may attempt to do this through re-enacting Schedule F. Musk has also proposed consolidating the number of federal agencies from more than 400 to fewer than 100.

It looks like a complicated and difficult undertaking—at which I hope they succeed.

While I have little expectation that advice from me will get to them, I offer it anyway. I’d like to streamline their process by suggesting that they simply go by the Constitution. If the power wasn’t granted to the federal government in the Constitution, then do away with that function.

We’ve looked at the limits of the Constitution before (specifically here, here, and here): the purposes in the Preamble, the enumerated powers, and then the just-to-make-sure-these-aren’t-ignored limits spelled out in the Bill of Rights. But we haven’t done it in the context of an actual, possibly imminent, opportunity to make it happen. So let’s review.

The Constitution’s Preamble, in bulleted form, gives us the mission statement for the federal government:

We the People of the United States, in order to:

·         form a more perfect Union,

·         establish Justice,

·         insure domestic Tranquility,

·         provide for the common defence,

·         promote the general Welfare,

·         and secure the Blessings of Liberty to ourselves and our Posterity,

do ordain and establish this Constitution for the United States of America.

You could sum up this mission as to protect the people as a whole: to secure their life, liberty, and property. So anything else in the Constitution will be to make those things happen. Most notably, there are the enumerated powers, from Article I, Section 8, of the Constitution, spelling out for Congress what it can legislate, what the Executive can then administer and carry out, and what the Judiciary can then adjudicate on:

Article I, Section 8, is where you find most of the enumerated powers.

1.     The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;

2.     To borrow Money on the credit of the United States;

3.     To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;

4.     To establish an uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States;

5.     To coin Money, regulate the Value thereof, and of foreign Coin, and fix the Standard of Weights and Measures;

6.     To provide for the Punishment of counterfeiting the Securities and current Coin of the United States;

7.     To establish Post Offices and post Roads;

8.     To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;

9.     To constitute Tribunals inferior to the supreme Court;

10.  To define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations;

11.  To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;

12.  To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;

13.  To provide and maintain a Navy;

14.  To make Rules for the Government and Regulation of the land and naval Forces;

15.  To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;

16.  To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;

17.  To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the Acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings;—And

18.  To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.

Article I, Sections 9, lists some limitations on the federal government, and Section 10 lists some limitations on the states.

Then there are a few more enumerated powers added as amendments to the Constitution:

19.  Thirteenth Amendment: To outlaw slavery and involuntary servitude (except as a punishment for crime), and to enforce this prohibition.

20.  Sixteenth Amendment: To lay and collect taxes on income—changing this from the original language in Article I, Section 8, which didn’t allow this type of direct tax.

21.  Fifteenth, Twenty-fourth, and Twenty-sixth Amendments: To enforce equal voting rights laws across all the states.

It undoubtedly doesn’t take 400 agencies (and probably not even 100 DOGE set as their goal) to do these 21 things. That means the federal government is doing a whole lot that it hasn’t been given power by the people to do—including things that the people can’t rightly give to government (for example, redistribution of wealth: if an individual does it, it's theft; and so it is when the government does it).

So, for the benefit of DOGE, here’s a list of powers the federal government has NOT been given:

ü  Power to govern education.

ü  Power to offer charitable services (welfare).

ü  Power to force purchase of a service or product (such as health insurance).

ü  Power to forbid purchase of a legal service or product (such as gas-powered vehicles).

ü  Power to require payment into a retirement supplement (Social Security).

ü  Power to interfere with commerce that doesn’t cross state lines.

ü  Power to redefine marriage in a way that is contrary to long-standing law and tradition, and to enforce acceptance of the new definition, even when it violates personal religious beliefs.

ü  Power to subsidize any industry (such as alternative “green” energy).

ü  Power to target industries in accordance with a social agenda (gun manufacturing, automobile manufacturing, nuclear energy, oil and gas, fast food, or sugary drinks).

ü  Power to use taxpayer funds to support abortion, nor power to claim abortion as a federal right.

ü  Power to subsidize or control (or forgive) student loans.

ü  Power to take over any industry (as when the Obama administration temporarily took over GM and banks).

ü  Power to favor or disfavor individuals or groups for hiring, educational opportunities, or other purposes based on their race, religion, or ESG or other invented social score or category.

ü  Power to coerce a person to subject themselves to a particular medical intervention.

ü  Power to censor legal speech, or encourage or allow censorship by businesses as censors-by-proxy for the government.

 ü  Power to partner with businesses to accomplish by proxy what the federal government is not lawfully allowed to do.

ü  Power to commit US military lives and US treasure to fight wars not declared by the US Congress.

 ü  Power to use regulatory agencies to legislate, execute, and adjudicate laws within a single branch of government.

I’m sure that list is not exhaustive. But it’s enough to get DOGE started. Anything the government is doing that it has not been specifically granted the power to do—has to go.

The question will be how to cut: swiftly and completely, or more gradually but on a definite timetable with the end in sight (so a future administration can’t revive it). Personally, right now, I’m in favor of swiftly and completely. It’s working for Argentina right now. And we have reason to believe, not only will cutting mean less government spending, but it will free up all kinds of resources to be used for creating value that's currently being blocked from being created.

Exceptions to swiftly and completely might be where long-standing promises have gone into financial planning, wherein the government has deprived people of alternatives. Taking money out of paychecks for Social Security would be an example; you can’t take it out all those years, depriving earners of the use and investment power of their money, and then take away the promised, albeit inadequate, benefit. (COLA for Social Security benefits this year is 0.2%, in a high-inflation environment, which is clearly inadequate.) Then the question will be how to get us from the current mess we’re in to a constitution-abiding state.

DOGE could keep in mind this Spherical Model axiom:

Whenever government attempts something beyond the proper role of government (protection of life, liberty, and property), it causes unintended consequences—usually exactly opposite to the stated goals of the interference.

What DOGE has been tasked with will not be easy; but it is simple: limit the federal government to its proper role by abiding by the Constitution. I pray for them to take this rare opportunity and make the radical changes necessary to rescue our constitutional republic.

Seven Conservative Victories

There’s one more thing I wanted to cover from the Republican Party of Texas convention a couple of weeks ago. On Saturday morning Senator Ted Cruz spoke. He detailed a list of seven victories in the first 18 months of the Trump presidency.

Ted Cruz's speech at the Republican Party of Texas Convention,
view from the crowd

If you’ve been reading here long, you know I was not a Trump supporter. I was a Cruz supporter in the primaries. And after that, I believed I had no reason to trust that Trump was telling the truth when he promised to do conservative things. Ted Cruz, I believed, also had many reasons not to trust Trump. He didn’t initially offer his endorsement, but when Trump personally promised to put forth a constitutionalist to replace Justice Scalia, Cruz went ahead and endorsed him and campaigned for him. There may have been additional promises and proofs in their private conversation. I wasn’t privy to those assurances. And I was not willing to give him my vote.

But the way to convert me is with actions in line with the promises. In other words, earn my trust. I’m not quite at the point of promising my vote in the next election; there are still character issues that bother me. But, unlike those with “Trump derangement syndrome,” I do not believe he is the things on this list, in a New York Post piece about the man who refused to serve a customer wearing a MAGA cap:

Darin Hodge, the former manager of the Teahouse in Stanley Park, told Global News he stood by his decision to ask the man to take off the cap, saying the hat represented “racism, bigotry, Islamophobia, misogyny, white supremacy, (and) homophobia.”

I don’t believe there is actual, business-world/real-world evidence that Trump is racist, bigoted, Islamophobic, misogynistic, white supremacist, or homophobic.

He is other things related to character: willing to lie and malign opponents; unfaithful to multiple wives; careless about hyperbole and sometimes unaware of facts; sometimes temperamental and reactionary in responding to criticism. And he is a relative newborn as a conservative. But he is not what he is defined as. There is no need to stand up to either Trump, or his voters, or Republicans, or conservatives based on that list. That is a straw man. It is what is being used to stir people up to a frenzy, but there is no there there.

So, as I was saying, while there may still be reasons not to dive in with my full support just yet, I do very much support President Trump on these victories, as listed by Ted Cruz. I’m willing to cheer and get the word out.

So, here we go, mostly in Senator Cruz’s words:

Number 1: An historic tax cut. In December of last year Republicans managed to come together and pass a tax cut, cutting taxes on Texas farmers, on Texas ranchers, on small businesses, on manufacturers, on families. Cutting taxes across the board. Doubling the standard deductible. Which means, starting next year 90% of Americans will fill out their taxes on a postcard. Personally, I think that should be 100%. We should pass a simple flat tax and abolish the IRS. But 90% is a very good start….

Editorial comment here. I generally cringe at the use of “an” before “historic,” which is not a silent “h.” However, you should know that Cruz did not pronounce the “h” in “historic.” It’s a Houston thing. We put the “h” in Houston, but not in Humble, a suburb directly north of Houston. So it wasn’t actually pretentious when Cruz said “an historic.”

Second major victory: Regulatory reform—across the board, every agency, pulling back, repealing job-killing regulations. If you’re a Texas farmer or rancher, the Waters of the United States Rule, Obama’s oppressive rule, gone.

And I spent 45 minutes with President Trump on Air Force One urging him to pull out of the Paris climate deal, saying this is a disaster for Texas. This kills thousands of jobs across the country. He did it.

The President pulled out of the climate deal on a Thursday. The next morning, Friday morning, he calls me on my cell phone. He said, “Well, Ted, I did it. What do you think?”

And I said, “Mr. President, let me tell you what Heidi told me this morning. When she picked up the Wall Street Journal, she read the headline—it quoted from your speech, where you said, ‘I was elected by the people of Pittsburg, and not the people of Paris.’ Heidi said, ‘That is absolutely right.’” I said, “Mr. President, everyone who hates you is ticked off right now, and everyone who loves you is thrilled.”

He added that those two victories have had a significant result already, which you probably haven’t seen on the 6:00 news:

We’ve seen over 3 million jobs created just in a year and a half. We have the lowest unemployment in almost 20 years. We have the lowest African-American unemployment since we began collecting unemployment data. We have the lowest Hispanic unemployment since we began collecting unemployment data. We have, today, more job openings, more help wanted signs, than we have people actively seeking employment.

Third big victory: We repealed the Obamacare individual mandate. That was a big, big deal. When I led the fight in the Senate to do that, I’ll tell you, back in October nobody thought we had a prayer…. We made the case both privately and publicly. We brought Republicans together, unified the party, and in December of last year all 52 Republicans stood together, and we repealed the Obamacare individual mandate.

That means that 6 ½ million Americans getting fined every year by the IRS because they can’t afford healthcare, including 1 million Texans getting fined every year—all of those fines go away.

Not all of Obamacare is history yet, unfortunately. And the individual mandate penalty isn’t actually lifted until 2019, which means that this year, because we were without insurance for half a year, we’re going to have to use money from our 401K to pay the penalty when the next Tax Day arrives. Still, glad to know that’s ending.

Number four major victory: School choice. A method I introduced on the tax bill, that takes College 529 plan, savings plans, tax advantage plans—incredibly popular across the country—and expands it to include K-12 education, to include public school, private school, parochial school, religious school—up to $10,000 per child per year….

[It’s] the most significant federal school choice legislation that has ever passed Congress. It passed after midnight, nearly 2:00 in the morning, with a 50-50 Senate, and Vice-President Pence breaking the tie. An incredible victory for Texas school children and up to 50 million school children all across the country.

Here’s one that seems even more significant this week, following the retirement of Justice Kennedy:

Number five major victory: Judges. Neil Gorsuch on the US Supreme Court. Principled constitutionalists up and down the federal bench. You know, last year, in 2017, we set a record for confirming the most court of appeals judges in the first term of a president. Right now, today, one eighth of the federal appellate judges in this country were appointed by Donald J. Trump. One out of eight, in just a year and a half to date.

For every one of us that values the Constitution and the Bill of Rights, who values life, who values religious liberty, who values free speech, who values the Second Amendment, it is the judges who are at the crossroads of preserving those rights or taking them away.

I wrote about this next one recently:

Number six. Just a few weeks ago I was blessed to be in Israel for the opening of our embassy in Jerusalem. The embassy opened on the 70^th anniversary of the creation of the modern state of Israel. Seventy years ago David Ben Gurion declared the modern state of Israel in existence. Eleven minutes later Harry S. Truman recognized Israel. I’m embarrassed that it took us eleven minutes….

I’m thankful I was in Jerusalem for the opening. There were Americans there. There were Israelis there. Particularly there were men and women who were holocaust survivors, who were reduced to tears, who simply said, “I never thought I would live long enough to see this.” This is another major victory.

Wait, there’s more!

Number seven: Ending the disastrous Obama Iranian Nuclear deal. The Obama Iran nuclear deal was one of the most catastrophic national security steps ever taken by the United States. We sent literally billions of dollars to the world’s leading state sponsor of terrorism. We flew in cash—$1.7 Billion dollars in unmarked bills, on pallets in airplanes in the dark of night…. You’d ask… “Who exactly is this person I’m dealing with?” Well, sadly, that person was the president of the United States, and he was sending billions of dollars to an ayatollah who pledged “Death to America!” and “Death to Israel!”

And, once again, in the Trump administration there was a vigorous argument, a vigorous debate about what to do. You had major voices of the administration saying stay in the deal. I tell you, I spent hours and hours and hours making the case to the president, making the case to the administration, that this agreement is a disaster. We need to cut off their money. We need to cut them off diplomatically. We need to use every force we have economically, diplomatically, and even militarily to ensure that the ayatollahs never ever, ever get nuclear weapons.

Before he went ahead with his senatorial campaign, which was good stuff, and also his ribbing of late night host Jimmy Kimmel, who was playing him that evening in a one-on-one basketball game (Cruz won, by the way), Cruz offered this summary:

One or two of those would have been big major victories in a year and a half. Three or four of those would have been astonishing. All seven is an incredible testament to delivering results.

I have to admit that’s true.

After the speech and some business, I went to look for my son,
Political Sphere, and his wife. And I came upon the photo ops booth for
Senator Cruz. I snapped this photo of him, with people I don't know,
because I was so close. Then I tried to get in line for a photo,
but they cut it off two people ahead of me. So I called Political Sphere;
they had just gotten their photo taken. I had missed them
by going the wrong way to get to the end of the line. Bad timing.
Anyway, they have a photo with Sen. Cruz, but I haven't seen it yet.

Back in 2016, when Cruz stepped out of the race, my thought was, “There’s the end of our constitutional republic.” I was in mourning. I was horrified at the possibility Hillary Clinton—the worst major candidate in the history of presidential races—could take over our country. But at that point I really had no evidence that a President Trump would be measurably better.

I’m so very glad to be wrong. There is hope. Trust is building. It turns out that tyrannical infrastructure built on executive orders and legislation-by-judiciary crumbles pretty quickly, once someone determinedly moves back toward constitutional law.

Like Samson in the Old Testament, Trump is an unlikely champion for good.

But, as surprising as it seems, in between cringe-worthy tweets and threats of authoritarianism (that truly frighten the real authoritarians), we conservatives are having some major victories. And, if President Trump keeps listening to wise conservative counsel, we’ll keep getting more of these victories.