The Speaker’s Lobby: A palpably unfair act

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DOGE taking hammer to insane spending, shuts down USAID

'The Five' co-hosts discuss DOGE taking aim at USAID spending and Elon Musk calling the agency a 'criminal organization.'

Referee Shawn Hochuli educated football fans recently on Rule 12, Section 3, Article 4 of the NFL rulebook.

Hochuli threatened to give the Philadelphia Eagles an automatic touchdown after the Washington Commanders committed three consecutive penalties at the goal line during the NFC Championship Game.

Washington linebacker Frankie Luvu launched himself twice – mimicking Superman in mid-flight – diving over the line of scrimmage before the Eagles snapped the ball at the one-yard line. Luvu was trying to prevent Eagles quarterback Jalen Hurts from sneaking into the end zone behind his massive linemen.

Hochuli slid the ball closer to the goal line after each infraction. "Half the distance to the goal line" is the sanction, meaning the ball advanced a few centimeters each time and Philadelphia got a new set of downs. But following the second infraction, Hochuli announced he’d assess Luvu an unsportsmanlike penalty if he did it again.

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Luvu didn’t.

But on the third play, Washington defensive tackle Jonathan Allen hopped briefly offside before the snap.

Hochuli blew the whistle, assessed a penalty for encroachment and moved the ball forward until its nose practically kissed the goal line chalk.

Unlike football, there's no obscure, baked-in rule allowing detractors of a "palpably unfair" act to supersede it – which might just spell hard luck for critics of President Trump's freezing of already-allocated federal funds. (Chip Somodevilla/Getty Images)

The referee then tutored the nation on one of the most obscure rules in any athletic rulebook.

"Washington has been advised that the referees can award a score if this type of behavior happens again," said Hochuli, much to the delight of the partisan crowd stuffed into Lincoln Financial Field in south Philly.

The rule declares the following:

"A player or substitute shall not interfere with play by any act which is palpably unfair. Penalty: For a palpably unfair act: Offender may be disqualified. The referee, after consulting the officiating crew, enforces any such distance penalty they consider equitable and irrespective of any other specified code penalty. The referee may award a score."

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In short, had Washington committed another penalty, Hochuli could have quit creeping the ball toward the goal line. He would have just given the Eagles six points on the scoreboard.

Rule 12, Section 3, Article 4 does not exist in governance or politics. Except the voters, there is no referee like Shawn Hochuli to assess penalties, mete out discipline and dock a team yardage.

And this is what vexes Democrats – and some Republicans – when it comes to Trump Administration moves to freeze money appropriated by Congress across the board.

Article I, Section 9 of the Constitution makes delegation of spending powers very clear – which is a big reason why Elon Musk's Department of Government Efficiency is so controversial on Capitol Hill. (Anna Moneymaker)

Article I, Section 9 of the Constitution is clear about which branch of government controls the purse strings:

"No Money shall be drawn from the Treasury but in Consequence of Appropriations made by Law."

In other words, Congress is responsible for spending money. The executive branch just cannot unilaterally thwart what Congress spends. President Richard Nixon tried this in the mid-1970s with "impoundment." Nixon’s administration blocked spending money which Congress allocated.

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This is why Elon Musk’s "Department of Government Efficiency" or "DOGE" is so controversial. First of all, it’s not a "department" like the State Department or the Department of Energy. It’s really the "U.S. DOGE Service," positioned under the umbrella of a small agency within the executive branch: The U.S. Digital Service.

But President Trump has granted Elon Musk and his team access to probe ways to cut spending. The DOGE service can’t just cut spending on its own. At least not constitutionally. And it certainly can’t eliminate another agency, like the U.S. Agency for International Development, USAID.

Unless Congress says so.

Senate Majority Leader John Thune, R-S.D., called the president's "temporary" pause on federal grants and loans "normal practice" for the fledgling second Trump administration. (Getty Images)

That’s why the drama last week about an automatic freeze on federal grants and loans rattled lawmakers from both parties on Capitol Hill. Granted, the administration called for a "temporary" pause. And even some powerful Republicans were okay with that.

"I think that's a normal practice at the beginning of administration until we have an opportunity to know how the money is being spent," said Senate Majority Leader John Thune, R-S.D., about the halt. "I think it's just this is kind of a preliminary step that I think most administrations take."

But Congress generally safeguards its prerogatives of spending very closely. It would be remarkable for lawmakers to fork over fiscal responsibilities to the executive branch without a fight.

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This is why when granting a restraining order to quash moves by the administration to usurp congressional authority over spending, U.S. District Judge Loren AliKhan declared that there was potential for "irreparable harm" to federal agencies and that the administration’s actions could be "catastrophic."

Republicans raised few hackles about the administration’s decisions. But Democrats and their allies spelled out the gravity of the circumstances.

"This is a profound Constitutional issue," argued Sen. Angus King, I-Maine. "What happened last night is the most direct assault on the authority of Congress, I believe in the history of the United States. It is blatantly unconstitutional. Article two does not give the executive the power to determine budgets or expenditures that powers vested in article three in the Congress."

The shutdown of the U.S. Agency for International Development, or USAID, drew the ire of many a House and Senate Democrat. (Celal Gunes/Anadolu Agency via Getty Images)

USAID shuttered Monday and staffers were locked out of the computer system. Musk said that the agency should be closed.

House and Senate Democrats marched down to USAID headquarters in Washington Monday to protest the move by DOGE and Musk.

"If you want to change an agency, introduce a bill and pass a law. You cannot wave away an agency that you don't like," said Sen. Brian Schatz, D-Hawaii.

"Just like Elon Musk did not create USAID, he doesn't have the power to destroy it," said Rep. Jamie Raskin, D-Md., the top Democrat on the House Appropriations Committee. "We don't have a fourth branch of government called Elon Musk."

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The moves by the administration last week and over the weekend to trample on congressional spending powers were so egregious that Democrats may have hoped that referee Shawn Hochuli was around to award them a score. Democrats contended the move was so far beyond the pale it may qualify as a "palpably unfair act." They might say the maneuvers were so constitutionally abhorrent that they should award Democrats a "score."

Secretary of State Marco Rubio declared himself the new head of USAID.

"They're supposed to take policy direction from the State Department and they do not. Their attitude is they don't have to answer to us. That is not true and that will no longer be the case," said Rubio.

Secretary of State Marco Rubio has declared himself the new head of USAID, claiming "their attitude is they don't have to answer to [the State Department]. That is not true and that will no longer be the case," (AP Photo/Mark Schiefelbein, Pool)

During an appearance on Fox, House Speaker Mike Johnson, R-La., said that it was incumbent to find savings in order to pay for the pending renewal of the Trump tax cuts.

"We’ve got to find those savings," said Johnson. "We’re going to have massive savings by making government more efficient and effective."

House Transportation Committee Chairman Sam Graves, R-Mo., noted that he was hearing from state departments of transportation, trying to understand what programs were now suspended.

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"A lot of money has been frozen," said Graves. "There are some programs that the president and Congress don't want to move forward, and we need to readjust many of those programs."

A deadline to fund the government looms in about five weeks. With their narrow majority, it’s generally believed that Republicans may need help from Democrats to keep the government open. But Democrats may now revolt since they believe GOP members may be willing to cede spending authority to the executive branch.

Sen. Patty Murray, D-Wash., is the top Democrat on the Appropriations Committee. She asks what happens if the sides do reach an agreement "and this administration says that's bunk. We don't have to go by that."

Sen. Patty Murray, D-Wash., has asked what may happen if both parties reach an agreement that the Trump administration deems "bunk." (Anna Rose Layden/Pool via REUTERS)

Murray added that "the level of trust is at the lowest I have ever seen it here in Congress."

In politics, there is no referee. There will be lawsuits. Court challenges. Battles which will rage for years.

But it’s up to the voters to determine if what the Trump administration is now carrying out constitutes a "palpably unfair act."

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And voters won’t have the chance to award a score until November of next year at the earliest.