What’s the issue? The problem here is not primarily that Musk is unelected — there are lots of powerful people in every administration who are not elected (though few have ever had as many conflicts of interest as Musk, the CEO of the world’s most valuable automaker in Tesla and the holder of many government contracts via the rocket company SpaceX and satellite internet provider Starlink). Nor would it be a problem if Musk were merely trying to modernize the government’s IT systems.
The problem is that Musk has used his control of a technical system — the software that the government uses to send more than a billion payments a year — to assert effective control over federal programs and policies. This is why Musk trying to shut off payments that have been appropriated by Congress matters: He is in essence saying that because he can do something with the software, he may do it.
The issue is that the government can do many things that it broadly does not do because they are illegal.
But Trump and Musk together are now testing the limits of the law.
The Trump administration is operating on a legal theory that the president can simply decide not to spend money that has been appropriated by Congress. Key officials in the Trump administration argue that Congress sets a ceiling, but not a floor, when it appropriates federal funding. It also believes that the Impoundment Control Act of 1974, which Congress passed during the Nixon administration, is unconstitutional.
I find it hard to believe that the Supreme Court — which last year severely limited the executive branch’s ability to interpret congressional laws which create and govern agencies — agrees with Trump that the president can ignore those same laws when they govern federal spending. But the Court has reached shocking decisions on Trump’s behalf before.
Trump’s team seems to be trying to make this legal theory central to how his entire administration works. Impoundment underpinned the White House’s attempt last month to block all outgoing federal grants and loans, which briefly threw the government into chaos before it was blocked by a judge and ultimately rescinded.
Musk’s ploy, seemingly, is to move so fast that these legal and constitutional questions become moot. If he can close a federal agency’s offices, put its workers on leave, and cut off funding to its programs, then perhaps it won’t matter what a judge says about impoundment itself. And if Musk can control the tap of public money, turning it on and off at will, then he can usurp the operation of the United States government.
In the world of climate and energy, Musk’s prominence — and the lack of precedent for his situation — raises important questions for businesses and policy makers. Here is what we do not know about Musk today:
Can Musk shut down payments and loans to non-Tesla electric vehicle companies or battery makers?
In 2010, the federal government issued a $465 million loan to Tesla so that it could build a factory in California for its Model S sedan.
In recent years, the government has made similar deals, lending tens of billions of dollars to other companies that make electric vehicles or that mine and refine critical minerals.
Last month, the Biden administration closed a $6.57 billion loan to Rivian, the electric truck maker, so that it could build a new factory in Georgia.
Some of these new borrowers, including Rivian and legacy automakers like Ford, compete with Tesla. It is still unclear whether Musk will be able to use his control of the federal government’s checkbook to cut off some loans and allow others to proceed. Doing so would ultimately stifle competition in the EV sector, benefitting Tesla, where Musk remains CEO.
The White House said this week that Trump is allowing Musk to police his own conflicts of interest.
Can Musk shut down payments and refunds claimed under the tax code?
In December, Musk called for Congress to “get rid” of the clean energy tax credits created by the Inflation Reduction Act.
Most tax credits are claimed by companies against what they owe on their taxes, meaning that they result in negative revenue to the government. But the IRA created a new kind of credit — a so-called “direct payment” — that allowed states, schools, churches, tribes, and other entities without federal tax liability to claim money for installing clean energy or buying electric vehicles.
Those payments — and any other tax refunds — ultimately run through the Treasury Department’s computer systems. It remains unclear whether Musk can use control of the federal government’s checkbook to block the payout of these payments.
Have energy efficiency programs at federal offices been canceled?
One of Musk’s initiatives, the U.S. DOGE Service, is housed at the General Services Administration, or GSA.
The GSA is the government’s internal landlord and facilities manager — it owns, builds, and manages federal office space. It also operates parts of the federal vehicle fleet.
Under the Biden administration, it undertook a number of energy sustainability and efficiency initiatives. Some of these programs were canceled by President Trump’s initial set of executive orders, but it remains unclear whether others remain in effect.
What is the status of Musk’s security clearance, and how do Musk’s ties to foreign governments affect his work?
Last year, the U.S. military was investigating whether Elon Musk complied with the rules of his security clearance, according to The New York Times.
At the time, Musk’s rocket company, SpaceX, had already declined to pursue the highest level security clearance for Musk, in part because of reports around his open drug use and contact with foreign leaders, according to The Wall Street Journal. Musk is reported to hold a “Top Secret” clearance.
The Journal has also previously reported that Musk conducted secret conversations with Vladimir Putin and that Musk’s drug use worries Tesla and SpaceX executives.
Tesla has deep ties in China. It achieved record sales in China last year, although its market share has fallen as Chinese EV companies have out-competed its aging vehicle line-up. Tesla is reportedly opening a new factory in Shanghai this month. Musk has also staked out public positions that favor the Chinese Community Party’s views. In 2022, he suggested that Taiwan could become a “special administrative zone” of the People’s Republic of China.
It’s unclear how these commitments might affect his work for the U.S. government.
