The Legality and Anti-Democratic Implications of the Department of Government Efficiency
By: William Zhang
On November 12, 2024, then President-elect Donald Trump announced his plan to create the Department of Government Efficiency (DOGE). DOGE, to be led by billionaire Elon Musk, would aim to “drive out the massive waste and fraud throughout our 5.6 Trillion Dollars of government spending.” (1) On January 20th, Inauguration Day, President Trump followed through on his promise and signed an executive order establishing the DOGE to “maximize governmental efficiency and productivity.” (2)As the head of DOGE, Musk immediately orchestrated thousands of firings across various federal agencies, including the Centers for Disease Control and Prevention and the Department of Homeland Security. Trump and Musk have also called for the dissolution of the Consumer Financial Protection Bureau (CFPB) along with other federal offices such as the U.S. Agency for International Development (USAID) and the Department of Education (Education Department). (3) However, DOGE’s actions have raised questions of both legality and constitutionality, and DOGE itself is facing various lawsuits trying to stop its probe into the U.S. Treasury’s payment systems.(4) Looking beyond the legality of DOGE, the agency’s actions have massive anti-democratic implications as they attempt to skirt the checks and balances fundamental to democracy.
On February 11th, 2025, President Trump issued another executive order detailing the scope of the new DOGE and its intended purpose. (5) Importantly, it explicitly defines DOGE as an agency under section 3502 of title 44, United States Code. This characterizes DOGE as an “establishment in the executive branch of the Government” (44 U.S. Code § 3502). This will be a key issue of dispute in later court cases.
Since its inception, DOGE has been working to slash billions of dollars in government spending —forcing many government agencies to shrink their workforce. (6) Termination emails have supposedly been sent to federal employees at agencies including the Education Department, the Small Business Administration, the Consumer Financial Protection Bureau, and the General Services Administration. Beyond that, the government has proposed a so-called buyout for federal workers, allowing them to be dismissed while still receiving pay for the next eight months.. This offer, which was initiated by Musk’s supporters at the Office of Personnel Management, expired on February 12th, one day after the DOGE was officially established as an executive department. According to the White House, about 77,000 workers, or around 3% of the civilian workforce, accepted this offer. (7) One of the most impacted agencies is USAID, where about 10,000 employees were placed on leave or fired. (8)
DOGE has also gone into the business of terminating federal contracts. According to a tweet on February 14th from DOGE’s X (formerly known as Twitter) account, DOGE terminated 586 wasteful contracts with a ceiling value of 2.1 billion dollars. (9) A quick scan of the X account will reveal many similar tweets, some involving the termination of high-profile agreements related to federal technology infrastructure and healthcare programs; for example DOGE cut “program and technical support services” for ICE’s Office of Diversity and Civil Rights and a DHS contract for “people and culture survey and climate support services.”(10) It is also clear that, consistent with Trump’s executive order slashing DEI in the federal government, Musk and DOGE have targeted contracts that sponsor DEI related programs. (11) On January 31st, DOGE’s X account posted a list of terminated DEI related contracts, claiming a total savings of over a billion dollars, though there is little evidence outside of the tweet to support such a claim. (12) Nat Malkus, a senior fellow at American Enterprise Institute, suggested that actual savings may be half as much as DOGE claims. (13)
Another agency that has been specifically targeted is the CFPB. Created by the Dodd-Frank Act in 2011, the CFPB regulates banking, lending, and credit practices. President Trump has been a longtime critic of the CFPB, claiming it imposed burdensome regulations, and Trump has expressed wishes to shut the entire agency down during his presidency. On February 10th, the CFPB’s acting director, Russell Vought, appointed by President Trump, shut down the bureau’s headquarters and instructed CFPB workers not to do “any work tasks.”(14) In line with these efforts, Musk and other DOGE staffers have asked for, and received, read-only access to CFPB data, systems, and equipment in preparation for cutting the organization entirely.(15)
The Department of Education also fell victim to DOGE’s scrutiny.. Conservatives have been longtime critics of the Education Department, with presidential candidates, think tank analysts, and other Republican lawmakers calling for its elimination. One of President Trump’s major campaign promises was to shut the Education Department down. Musk and DOGE have been planning to make good on this promise (16). DOGE is currently trying to access federal student loan data in an effort to cut the Education Department’s spending (17), and has already terminated 900 million dollars worth of research programs that track American students’ academic progress (18). Not only that, DOGE has probed into other agencies and programs, including the Federal Aviation Administration, the Center for Disease Control and Prevention, Medicare and Medicaid, the Department of Energy, Environmental Protection Agency, and the Federal Emergency Management Agency.(19)
Nevertheless, despite the alleged savings already accomplished by such layoffs and terminations, DOGE, with Musk at the helm, continues to push for more cuts to the bureaucracy. To achieve this, DOGE has requested access to sensitive financial data from various government departments. Most notably, the Secretary of Treasury, Scott Bessent, gave Musk’s team at DOGE access to the federal payment system on January 31st. This system controls trillions of dollars annually and is normally overseen by a small group of nonpartisan Treasury employees, which poses a large security risk. (20)The treasury has already mistakenly given DOGE edit access to sensitive payment data. (21) If a longstanding government agency such as the Treasury can erroneously give DOGE access to sensitive information, it is certainly feasible that DOGE, a newly and hastily formed government agency, could leak the information to unauthorized individuals or groups.
These actions have been met with intense legal pushback. The most notable case is State of New York et al v. Donald J Trump, in his official capacity as the President of the United States, et al. In this case, heard by the District Court for Southern New York, the attorneys general of nineteen states requested a temporary restraining order on DOGE’s access to Treasury information, filing a suit against President Trump and Scott Bessent on February 7th. In the suit, the plaintiffs alleged that in allowing DOGE to access Treasury information, the defendants violated previously established laws, giving the courts a cause for action. The first notable law the plaintiffs point to is the Administrative Procedure Act (APA), which states that courts must “hold unlawful and set aside agency action” that is “in excess of statutory jurisdiction, authority, or limitations, or short of statutory right” (5 U.S.C.§ 706(2)(C)). Essentially, the plaintiffs are accusing DOGE of exceeding its “authority under the statutes that govern the collection, storage, handling, and disclosure of PII and confidential financial information because it permits payment systems to be accessed on non-government third-party servers.” The second notable statue that the plaintiffs invoke is the Separation of Powers Doctrine. The plaintiffs suggest that the only possible reason for the defendants to allow DOGE to gain access to the Treasury’s system based on publicly available information was so that DOGE could halt payments it deemed inefficient. However, since the payments were authorized by Congress and DOGE is an executive agency, it would be a violation of the Separation of Powers Doctrine for DOGE to interfere with Congress approved spending.(22) Judge Jeannette A Vargas of the District Court for Southern New York ruled in the plaintiffs’ favor on February 11th, temporarily halting the administration’s ability to use Treasury data, protecting privacy, and forcing procedural adjustments.(23)
Curiously, however, in Washington, D.C., the ruling was much different from New York. On February 5th, in the District Court for the District of Columbia, the American Foreign Service Association and the American Federation of Government Employees sued President Trump along with numerous other government officials and agencies in American Federation of Labor and Congress of Industrial Organizations et al. v. Department of Labor et al. There, the plaintiffs argued that the defendants are allowing non-agency personnel (members of DOGE) to access individuals’ personal information in violation of the Privacy Act of 1974, which prohibits the “disclos[ing] any record which is contained in a system of records by any means of communication to any person, or to another agency, except pursuant to a written request by, or with the prior written consent of, the individual to whom the record pertains.” (5 U.S.C. § 552a(b)). The plaintiffs also argue that DOGE employees are not agency members under the Economy Act of 1932, as it was not created by statute and is not accountable to an entity that was 31 U.S.C. § 101. Therefore, since the Economy Act states that only agencies can detail workers to other agencies, the defendants are violating the Economy Act by providing DOGE with the details of their employees. (24)
On the other hand, the defendants asserted DOGE’s legitimacy by arguing that it was an agency under the Economy Act. However, as Judge John D. Bates pointed out in his decision, the defendants shy away from arguing that DOGE is an agency under more established statutes, such as the aforementioned APA, instead focusing only on the Economy Act. Judge Bates suggests that this is likely due to “a desire to escape the obligations that accompany agencyhood— subjection to FOIA, the Privacy Act, the APA, and the like—while reaping only its benefits” so that DOGE becomes “a Goldilocks entity: not an agency when it is burdensome but an agency when it is convenient.” Nevertheless, Judge Bates rejected the distinction between the similar definitions of agency in the Economy Act and other acts, such as the Privacy Act and the APA, and deemed DOGE an agency under all of the aforementioned acts. Such a decision, contrary to the New York ruling, ruled in favor of the defendants, meaning that DOGE’s acquisition of employee information was, from a legal standpoint, valid. Although these two court cases reveal much about the legality of DOGE’s actions, lurking behind them are the massive anti-democratic implications that DOGE brings. As the plaintiffs in State of New York et al v. Donald J Trump, in his official capacity as the President of the United States, et al. suggest, DOGE fundamentally violates the Separation of Powers Doctrine. In violating said doctrine, DOGE attempts to elevate the executive above the legislative, eroding the fundamental democratic process of checks and balances. Not only that, but Elon Musk has suggested that judges should not be able to stop Presidential orders, tweeting, “If ANY judge ANYWHERE can block EVERY Presidential order EVERYWHERE, we do NOT have democracy, we have TYRANNY of the JUDICIARY.” (25) Thus, under Musk’s leadership, DOGE not only undermines the legislative branch with its violation of the Separation of Powers Doctrine but also wishes to undercut the judiciary’s ability to check presidential power. Without the guardrails of checks and balances and the separation of powers, any democracy will soon erode into tyranny. Therefore, DOGE’s actions and intentions against these democratic pillars hint at their fundamentally anti-democratic nature.
DOGE’s attempted use of a legal loophole in American Federation of Labor and Congress of Industrial Organizations et al. v. Department of Labor et al. is also a clear attempt to evade the accountability that comes with being a government agency. In attempting to dodge identification as an agency under the FOIA, the Privacy Act, and the APA, DOGE tries to evade regulations such as the obligations to disclose public information, to protect private information, and follow provisions of judicial review of agency actions. By taking such actions, DOGE undercuts the checks and balances essential to democracy.
Regardless of the outcome of such cases, DOGE’s recent actions have clear practical consequences. DOGE has inadvertently cut several key programs with severe consequences, such as the ebola prevention program that USAID says still is not reinstated despite Musk claiming that it was restored without interruption (26). Considering that ebola prevention and response rely on continuous efforts, if funding and contracts were halted, critical activities such as transporting specimens for testing or screening travelers could have stopped, potentially allowing the virus to spread unchecked.
It is certainly possible that DOGE could mistakenly slash other essential programs. Considering that what DOGE does is at Elon Musk’s sole discretion, this also poses a severe threat to American democracy. Musk could simply cut programs at a whim and claim that it was a “mistake.” However, as with the ebola prevention program, irreparable damage might have already been done.
Overall, DOGE has acted incredibly quickly after its creation, terminating billions of dollars of contracts, firing thousands of government employees, and forcing many government agencies to downsize. However, as State of New York et al v. Donald J Trump, in his official capacity as the President of the United States, et al and American Federation of Labor and Congress of Industrial Organizations et al. v. Department of Labor et al revealed, not only are DOGE’s actions an overreach of executive power, but DOGE is also actively attempting to evade accountability for being a government agency. Fundamentally, in a democracy, no executive order should tamper with legislative-approved government functions. While the intention of having a more efficient government may be applauded, how DOGE approaches said goal is unconstitutional and anti-democratic.
Endnotes
(1) Donald Trump, X, November 13, 2024, https://x.com/realDonaldTrump/status/1856658569124262092.
(2) The White House, “Establishing and Implementing the President’s ‘Department of Government Efficiency,’” The White House, January 20, 2025, https://www.whitehouse.gov/presidential-actions/2025/01/establishing-and-implementing-the-presidents-department-of-government-efficiency/.
(3) David Ingram, Daniel Arkin and Lora Kolodny, “Trump administration begins mass firings across government.” CNBC, February 14, 2024, https://www.nbcnews.com/politics/doge/government-layoffs-trump-firings-department-probationary-employees-rcna192307.
(4) New York State Office of the Attorney General. State of New York et al. v. Trump et al.: Request for Emergency Temporary Restraining Order Under Federal Rule of Civil Procedure 65 (B). 2025. https://ag.ny.gov/sites/default/files/court-filings/state-of-new-york-et-al-v-trump-doge-temporary-restraining-order-memo-2025.pdf.
(5) The White House, “Implementing the President’s ‘Department of Government Efficiency’ Workforce Optimization Initiative,” The White House, February 11, 2025, https://www.whitehouse.gov/presidential-actions/2025/02/implementing-the-presidents-department-of-government-efficiency-workforce-optimization-initiative/.
(6) Nik Popli, “What DOGE Is Doing Across the Federal Government,” TIMES, February 13, 2025, https://time.com/7222251/doge-musk-federal-workers-government/.
(7) Tim Reid, Nathan Layne and Karen Freifeld, “Thousands fired in US government as Trump, Musk purge federal workers,” Reuters, February 13, 2025, https://www.reuters.com/world/us/mass-firings-federal-workers-begin-trump-musk-purge-us-government-2025-02-13/.
(8) Joey Garrison, “Almost all USAID workers across the globe placed on leave as Trump moves to gut agency,” USA Today, February 4, 2025, https://www.usatoday.com/story/news/politics/2025/02/04/almost-all-usaid-employees-globally-placed-on-administrative-leave/78228206007/.
(9) DOGE, X, February 14, 2025, https://x.com/DOGE/status/1890593889314038216.
(10) Nik Popli, “What DOGE Is Doing Across the Federal Government,” Time, February 21, 2025, https://time.com/7222251/doge-musk-federal-workers-government/,
(11) The White House, “Initial Recissions of Harmful Executive Orders and Actions” The White House, January 20, 2025, https://www.whitehouse.gov/presidential-actions/2025/01/establishing-and-implementing-the-presidents-department-of-government-efficiency/.
(12) DOGE, X, January 31, 2025, https://x.com/DOGE/status/1885420298138247458.
(13) Laura Meckler and Hannah Natanson, “DOGE rips through Education Department, cutting contracts, staff and grants,” The Washington Post, February 14, 2025, https://www.washingtonpost.com/education/2025/02/13/doge-education-department-cuts/.
(14) Laurel Wamsley, “New CFPB chief closes headquarters, tells all staff they must not do ‘any work tasks,’” February 10, 2025, https://www.npr.org/2025/02/08/nx-s1-5290914/russell-vought-cfpb-doge-access-musk.
(15) Makena Kelly, “DOGE Is Now Inside the Consumer Financial Protection Bureau,” Wired, February 7, 2025, https://www.wired.com/story/doge-access-consumer-financial-protection-bureau-data/.
(16) Dan Balz, “Trump wants to shut the Education Department. Is it sleight-of-hand?,” The Washington Post, Feb 16, 2025, https://www.washingtonpost.com/politics/2025/02/16/trump-education-department/.
(17) Alison Durkee, “Elon Musk And DOGE’s Access To Student Loan Data Raises Concern—Here's What To Know,” Forbes, February 10, 2025, https://www.forbes.com/sites/alisondurkee/2025/02/10/elon-musk-and-doges-access-to-student-loan-data-raises-concern-heres-what-to-know/.
(18) Collin Binkley and Bianca Vázques Toness, “DOGE cuts $900 million from agency that tracks American students’ academic progress,” Associated Press, February 11, 2025, https://apnews.com/article/ies-musk-doge-education-cuts-4461d7bdbe9d55c5a411d8465999b011.
(19) Nik Popli, “What DOGE Is Doing Across the Federal Government,” TIMES, February 13, 2025, https://time.com/7222251/doge-musk-federal-workers-government/.
(20) Andrew Duehren, Maggie Haberman, Theodore Schleifer, and Alan Rappeport, “Elon Musk’s Team Now Has Access to Treasury’s Payments System,” The New York Times, February 1, 2025, https://www.nytimes.com/2025/02/01/us/politics/elon-musk-doge-federal-payments-system.html.
(21) Jeff Stein, “Treasury revoked editing access ‘mistakenly’ given to DOGE staffer,” Washington Post, February 11, 2025, https://www.washingtonpost.com/business/2025/02/11/doge-treasury-access-marko-elez/.
(22) New York State Office of the Attorney General. State of New York et al. v. Trump et al.: Request for Emergency Temporary Restraining Order Under Federal Rule of Civil Procedure 65 (B). 2025. https://ag.ny.gov/sites/default/files/court-filings/state-of-new-york-et-al-v-trump-doge-temporary-restraining-order-memo-2025.pdf.
(23) State of New York et al. v. Trump et al., No. 25-CV-1144 (S.D.N.Y. Feb. 7, 2025). 2025. “Memorandum Opinion and Order”. https://www.nysd.uscourts.gov/sites/default/files/2025-02/25cv1144%20Opion%20and%20Order.pdf.
(24) American Federation of Labor and Congress of Industrial Organizations et al. v. Department of Labor et al., No. 1:25-cv-00339-JDB (D.D.C. Feb. 5, 2025). 2025. “Complaint for Declaratory and Injunctive Relief.” https://storage.courtlistener.com/recap/gov.uscourts.dcd.277150/gov.uscourts.dcd.277150.1.0_3.pdf.
(25) Elon Musk, X, February 25, 2025, https://x.com/elonmusk/status/1894545949973770684.
(26) Dan Diamond and John Hudson, “Musk says DOGE ‘restored’ Ebola prevention effort. Officials say that’s not true.” Washington Post, February 27, 2025, https://www.washingtonpost.com/politics/2025/02/26/elon-musk-ebola-prevention-usaid-doge/.
