According to the Oxford English Dictionary, a "dictator" is "an absolute ruler of a state, esp. one whose rule displaces that of a democratic government." In the United States, the American democratic government is delineated in the Constitution and in the laws of Congress as the supreme lawmaking body elected by the people, with the President charged to "take Care that the Laws be faithfully executed," and with the Courts ensuring that the Constitution, the laws of the United States, and all treaties shall be "the supreme Law of the Land." The fundamental principle is the rule of law, such that no one is above or outside the law. Therefore, an American dictator would be an absolute ruler who would displace this democratic rule of law.
In my previous post, I suggested that Donald Trump and Elon Musk have emerged in the first few weeks of Trump's term as wanting to become dictators. It now appears that we will know for sure whether that is the case within the next week.
I say that because of what happened early this morning (February 8). Acting on orders from Trump, Musk has gained access to the Treasury Department's payment and data systems. This system channels about 90 percent of the payments for the U.S. government (about $6.75 trillion last fiscal year)--the funds paid directly to people in the states as well as state governments. This includes, for example, Social Security benefits, veteran's benefits, and federal employee wages. This money has already been allocated by Congress. But Trump wants Musk to be able to cut those federal payments if he so chooses. Moreover, Musk's access to the Treasury Department's systems gives him access to all of Americans' private information stored in those systems.
On the evening of February 7th, the Attorneys General of 19 States filed an application with the U.S. District Court for the Southern District of New York asking for a temporary restraining order that would deny Musk's access to the Treasury Department's systems. This morning, District Judge Paul Engelmayer ruled in their favor.
In his order, Judge Engelmayer agreed with the States that they had four persuasive reasons for why Musk's actions were illegal and unconstitutional. First, Musk is violating the Administrative Procedure Act, which is the fundamental legislation governing federal administrative procedures. Second, Musk's actions exceed the statutory authority of the Department of the Treasury. Third, this violates the separation of powers doctrine. And, finally, this violates the Take Care Clause of the U.S. Constitution.
Judge Engelmayer issued four orders. First, the defendants must appear in federal court on February 14 to show cause why an order should not be issued to stop Musk's actions at the Treasury Department. Second, pending that hearing, Musk and the people acting for him are denied any access to the Treasury Department's systems, and they must "immediately destroy any and all copies of material downloaded from the Treasury Department's records and systems, if any." Third, defendants must file any opposition submission, and the States must file any reply before the February 14 hearing. Finally, this order must be filed upon the defendants by 12 noon today (February 8).
I lay out these details to show how this sets up a clear confrontation between the court and Musk. If he accepts this temporary restraining order, then he has accepted the constraints of the rule of law--at least for now--and he is not a dictator. But if he and Trump refuse to obey this order, then they have declared themselves America's dictators.
This has broad implications as to whether we are witnessing a full display of a chimpanzee politics of dictatorship by Trump and Musk, which I will consider in future posts. I also need to respond to the "unitary executive" theory of the presidency, which is the interpretation of Article II of the Constitution that supports what Trump is doing. Trump pointed to this theory in 2019 when he said: "I have an Article II, where I have the right to do whatever I want as president."
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