The many legal questions surrounding Musk’s DOGE efforts

WASHINGTON, DC - FEBRUARY 03: The entrance of USAID headquarters. (Photo by Kayla Bartkowski / GETTY IMAGES NORTH AMERICA / Getty Images via AFP) (Getty Images via AFP)
WASHINGTON, DC - FEBRUARY 03: The entrance of USAID headquarters. (Photo by Kayla Bartkowski / GETTY IMAGES NORTH AMERICA / Getty Images via AFP) (Getty Images via AFP)

Summary

Even before Trump took office, legal observers were skeptical of his plans for an Elon Musk-led Department of Government Efficiency to unilaterally shrink the federal government.

Even before President Trump took office, legal observers were skeptical of his plans for an Elon Musk-led Department of Government Efficiency to unilaterally shrink the size of the federal bureaucracy. Questions have only grown in the two weeks since he has been back in the White House, and reached a new flashpoint with the administration’s de facto shutdown of the U.S. Agency for International Development.

Here’s a rundown of several DOGE issues that are in play.

Can the administration effectively shut down USAID?

USAID has carried out foreign assistance programs since 1961, and Congress in 1998 established it as an independent agency, though closely intertwined with the State Department. It is highly unlikely that Trump and Musk can formally wipe out the agency by merging it into the State Department without legislative approval. What happened in recent days is short of that, which leaves some of the administration’s moves in a gray area. The agency headquarters was closed Monday and many of its functions and communications were crippled. DOGE officials sought access to the agency’s systems over the weekend.

The Trump administration sees USAID as “a place to start to see what they can do, and see who will stop them and how," said Matthew Kavanagh, director of the Center for Global Health Policy and Politics at Georgetown University.

USAID works heavily with government contractors, and the administration has more flexibility in dealing with them than government employees. It also has some wiggle room to pause spending and put workers on temporary leave.

But a wholesale refusal by Trump to spend the agency’s foreign-aid funds would run headlong into a Nixon-era federal law, the Impoundment Control Act of 1974, which requires the president to get permission from Congress to withhold discretionary spending.

Brian Riedl, a former Republican Senate aide now at the conservative-leaning Manhattan Institute, said he thinks the president’s USAID overhaul has invited a constitutional crisis. “The president can’t take back the funding," he said.

Some legal scholars say the president has more room to control spending on matters related to national security and foreign affairs. And U.S. presidents going back to Thomas Jefferson, who halted funding for gunboats to patrol the Mississippi River, have impounded appropriated money.

Trump’s top lawyer at the Office of Management and Budget has argued that the 1974 impoundment law unconstitutionally limits the president’s power to control and manage the executive branch.

A court showdown on the issue could be ahead.

What is DOGE’s authority? And where did it come from?

Trump created DOGE through an executive order he signed the day he took office, establishing Musk’s outfit as a temporary government organization. The president did so by renaming and reorganizing an already existing office in the executive branch.

His order said DOGE would help implement his agenda “by modernizing Federal technology and software to maximize governmental efficiency and productivity." He instructed agency heads to cooperate with DOGE, but said the creation of the new organization didn’t supplant the powers of other executive departments or agencies. Another order said DOGE would have a role in reshaping the federal workforce.

Open questions remain about who actually works for DOGE, what their roles and responsibilities are, and how it is funded. Before he took office, Trump created the outfit as an advisory panel. DOGE co-chair Vivek Ramaswamy has left the effort, as has Bill McGinley, whom Trump appointed as DOGE’s legal counsel in December.

The White House on Monday said Musk is classified as a “special government employee," which enables him to work at the White House for 130 days without filing financial-disclosure forms required for regular White House employees. But his role also raises conflict-of-interest questions because his DOGE work could benefit his business interests, including Tesla and SpaceX.

Can Trump deputize DOGE to slash the federal government?

Recent past administrations, including under Ronald Reagan and Bill Clinton, have established advisory bodies aimed at cutting spending or making the government more efficient, but their structures and mandates were different in character than DOGE.

Reagan in 1982 assembled more than 100 private-sector figures with the mandate to “drain the swamp" in Washington. The group, known as the Grace Commission, made more than 2,400 recommendations, including proposals to rethink protections for government workers. Many of the recommendations were never implemented.

Trump, by contrast, is working closely with Musk to engineer significant financial and structural changes in the government over a matter of weeks and months. The effort also received unusual law-enforcement backing Monday from the Trump-appointed interim U.S. attorney in Washington, Ed Martin.

“I ask that you utilize me and my staff to assist in protecting the DOGE work and the DOGE workers," Martin wrote in a public letter to Musk. “Any threats, confrontations or other actions in any way that impact their work may break numerous laws."

Legal observers said Trump was generally on solid legal ground in creating DOGE and using its input, so long as Musk is functioning as an adviser and not an actual decision maker.

“There isn’t a problem with the president getting advice from people outside the government," said University of Virginia law professor Saikrishna Prakash, who studies executive powers. And the president, he said, can direct agencies to cooperate with that adviser.

Prakash said, though, there could be privacy, national-security and computer-access rules that legally limit Musk and DOGE’s access to information.

What legal boundaries is DOGE testing?

Putting aside questions about DOGE’s structure, some legal experts say its conduct so far may have violated federal law.

For example, acting on a DOGE-backed proposal, the Office of Personnel Management has offered a “deferred resignation" package to about two million federal employees, who were told they would be paid through Sept. 30, 2025, if they agreed to resign by Feb. 6.

This offer may have violated the Administrative Leave Act of 2016, which limits how federal employees can be put on leave, said Nicholas Bednar, a University of Minnesota law professor.

Bednar said another potential legal hurdle is the Anti-Deficiency Act, a law that says the federal government can’t promise to spend money in excess of what Congress has made available. Congress has funded the government only through March, so the offer to pay salaries through September appears to violate this statute, Bednar said.

On Monday, a coalition of labor unions sued the Treasury Department, alleging it had unlawfully given DOGE access to a payment system with personal and financial data about millions of Americans. The plaintiffs said they were seeking a court order to halt the “systematic, continuous, and ongoing violation of federal laws that protect the privacy of personal information contained in federal records."

DOGE was also hit with multiple lawsuits, filed shortly after Trump was sworn into office, alleging it violates a law from 1972 that imposes transparency requirements on advisory committees to the executive branch, including that they meet in public and have a fair balance in viewpoints represented.

Now that Trump has formally made DOGE part of the government, some legal experts have said those cases may not be relevant. But Kel McClanahan, a lawyer who brought one of the cases, said the litigation is “still 100% valid" until a court determines that every single person purporting to work for DOGE is actually an employee of the government entity described in the executive order.

Laura Kusisto contributed to this article.

Write to Jacob Gershman at jacob.gershman@wsj.com and Jan Wolfe at jan.wolfe@wsj.com

 

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