As head of the newly created Department of Government Efficiency, Elon Musk and his team have spent the first three weeks of President Donald Trump’s new administration turning Washington upside down.
DOGE’s goal is to radically slash the federal government: Mr. Musk says he believes he can find $2 trillion in savings by ferreting out waste, shutting down agencies, selling off real estate, and laying off a huge chunk of the government workforce.
But is it legal for this brand-new entity, within the executive office of the President, to do all that on its own at a headlong pace?
Why We Wrote This
The U.S. Constitution provides for checks and balances as an essential marker of a healthy democracy. That system faces a test as a new administration pushes the limits of executive power.
In some ways, the billionaire appears to be following the same playbook as when he took over Twitter, which he renamed X. He reduced its workforce by nearly 80% beginning with an email with the subject line “Fork in the Road,’’ saw the company’s stock value drop, and watched many users quit even as the social platform continues under new policies.
Still, transforming a privately owned company is a far cry from overhauling the federal government. While many Americans believe that Washington’s bureaucracy is inefficient and even wasteful, government programs also have their strong supporters. And beyond the politics, there are far more legal constraints on reinventing public institutions than private, for-profit enterprises.
The U.S. government’s structure, enshrined in both the Constitution and statutes, makes change far more difficult to achieve. Already, the courts are getting involved.
On Thursday afternoon, a federal judge in Boston temporarily halted President Trump’s federal employee buyout program, though the impact of the DOGE ultimatums blitz means thousands of desks are already empty. Earlier on Thursday, another federal judge in D.C. blocked DOGE workers from accessing sensitive Treasury Department records and payment systems.
Clashes over computers
Rebranded via executive order from the U.S. Digital Service, DOGE is technically permitted some access to federal government computer systems. But clashes have erupted over the kind of information DOGE workers have sought and how they might use – or misuse – it.
At the Treasury Department, for example, DOGE employees sought access to systems that are used to process trillions of dollars of payments each year. These systems include names, addresses, and Social Security numbers. As part of an ongoing lawsuit, a federal judge on Thursday limited the organization’s access to that Treasury data.
While other agencies have been more cooperative – such as the Centers for Medicare and Medicaid Services, where DOGE is looking for evidence of benefits fraud – the organization is on dicey legal ground when it comes to accessing sensitive information held by the federal government.
Running “roughshod” over Congress’ power of the purse?
The Constitution gives Congress broad powers over how federal funds are spent. DOGE and the Trump administration have been testing the bounds of these powers.
A week into the new administration, the U.S. Office of Management and Budget issued a memo ordering a pause on all federal grant and loan payments pending an executive branch review. Nonprofit organizations responded with lawsuits seeking to block the memo, questioning the Trump administration’s legal authority for unilaterally pausing funding authorized by Congress.
OMB rescinded the memo days later, though administration officials said its review of federal spending will continue. The lawsuits have also continued, and on Monday a federal judge in Washington, D.C., temporarily blocked OMB from implementing the grants freeze memo.
“Defendants’ actions in this case potentially run roughshod over a ‘bulwark of the Constitution’’’ by interfering with Congress’s constitutionally mandated power of the purse, Judge Loren AliKhan wrote in her order.
The executive branch can block some congressional appropriations. In certain situations, the president can “impound” (withhold) funds that Congress has approved. That power was curbed after abuses by President Richard Nixon, and the Trump administration may now be trying to claw back some of them.
Asserting power to shut down whole agencies
DOGE and the Trump administration have also sought to restructure, and perhaps even eliminate, entire federal agencies.
Earlier this week, DOGE told employees from the U.S. Agency for International Development (USAID) not to come to work the next day. The development agency, which administers billions of dollars in civilian foreign aid worldwide, was being fed “into the woodchipper,” Mr. Musk wrote on social media. Claiming Mr. Trump’s full support, he said he was “shutting it down.”
DOGE employees have also been reviewing operations at the Department of Education, which Mr. Trump pledged to close during his campaign. Like USAID, the department was created and is funded by Congress.
That should be the end of the conversation, legal experts say.
“These are entities created by Congress, with functions defined by Congress, [and] budgets approved by Congress,” says Don Kettl, a professor emeritus and former dean at the University of Maryland School of Public Policy. “The president cannot unilaterally change any of those.”
“You’re fired”
A key feature of DOGE and the Trump administration’s downsizing efforts has been attempted job cuts.
DOGE’s recent “Fork in the Road” email went out to 2 million federal employees. The administration also offered “deferred resignations” to employees at the Central Intelligence Agency, the National Security Agency, and the Office of the Director of National Intelligence. About 40,000 workers (about 2% of the federal workforce) have taken the offer so far, White House press secretary Karoline Leavitt said Thursday.
The Justice Department has also now ordered and obtained a list of Federal Bureau of Investigation employees who worked on cases related to Mr. Trump and the Jan. 6, 2021, storming of the U.S. Capitol.
Critics have questioned the legality of such actions and warned of security issues that may arise with them. The New York Times reported on Wednesday that the names of some CIA employees had been listed in an unclassified email sent to officials at the Office of Personnel Management.
A group of anonymous FBI agents have filed lawsuits challenging the legality of such “outing,” seeking to protect personal information. They argue that the Trump administration’s efforts to identify specific employees violate federal privacy law and put them in danger.
Is that legal? Civil service law has provisions that protect career federal employees from political interference. Most federal workers can only be fired if their performance or misconduct is documented. Even then, employees have rights to due process and appeal.
Loopholes and “fog of war”
There are possible loopholes. The executive branch has the authority to put employees on paid leave, for example. Agency heads can incentivize employees to resign or retire early.
“You have people lining up to say this isn’t [lawful], but it’s difficult” to challenge certain specific actions, says Dr. Kettl.
Lawsuits to protest such layoffs require the plaintiff to clearly show how the challenged policy would harm them, for example. But that can be difficult if a policy hasn’t taken effect yet.
Godofredo A.Vásquez/AP/File
“There’s a lot of fog of war. We’re not entirely sure what the details are,” says Jonathan Adler, a Case Western Reserve University School of Law professor. “That makes it very hard to assess the legality of very specific things.”
The Trump administration may even hope to tee up legal battles over specific issues. For example, litigation may be a way for the administration to convince courts that the president’s impoundment power should be expanded.
Coming battle over checks and balances
Over the coming months, federal courts could hear lawsuits regarding the president’s ability to interfere with congressional appropriations, restructure federal agencies, or fire or buy out certain federal employees.
The Framers of the Constitution designed the nation’s core governance document so that each branch of government is meant to check the other. The judicial branch could emerge, as it did in the first Trump administration, as a potent check on the executive branch. But will the Republican-majority Congress push back against the leader of their party, especially when Mr. Trump has shown a vindictive streak against those who show disloyalty?
“The balance of the powers is defined by how they’re executed,” says Dr. Kettl. “It’s not like there’s a red line you cross, and once you cross, it triggers some action,” he adds. “The only action the Constitution provides is for another branch to check the power.”
In short, the Constitution’s separation of powers only exists if the respective branches of government take action to ensure power is separated and balanced.
Two weeks into the second Trump administration, the jury is out.
In most cases, Republican lawmakers are supporting Mr. Trump. Last month, a North Carolina congressman introduced a bill to eliminate the Department of Education. (An act of Congress would be the constitutional way to do that.)
Days after the OMB grant-freeze memo came out, House Speaker Mike Johnson, a Republican, described it as “an application of common sense” that “would be harmless in the end.”
Sen. Kevin Cramer, a North Dakota Republican, took a different view. Mr. Trump was “testing his authority,” Senator Cramer said in late January. While he supports reviewing and reevaluating government spending, he added it would be a “major test of separation of powers.”
Editor’s note: This story has been updated on Feb. 7, the date of original publication, to correct the spelling of Judge Loren AliKhan’s first name.
