Why the Actions of DOGE Are Not Only Unconscionable, but Illegal
Elon Musk and the Trump administration are defying the constitutional power of Congress to determine how money is spent in direct defiance of the rule of Law and the US Constitution
The so-called Department of Government Efficiency, or DOGE, appears to be operating in violation of the Federal Advisory Committee Act. DOGE is operating unchecked, without authorization or funding from Congress and is led by unelected billionaires who are not representative of ordinary Americans.
DOGE representatives have been speaking with agency officials throughout the federal government, and communication is allegedly taking place on Signal, a messaging app known for its auto-delete features.
The Federal Advisory Committee Act requires that advisory committees follow a specific authorization process, include a balanced membership, have a clear charter including the scope of the committee’s activities, have meetings open to the public and disclose records to the public.
Moreover, to form a Federal Department in the United States, the primary requirement is that Congress must pass legislation creating the department, which essentially means a new law defining its purpose, structure, and authority; this power is granted to Congress by the Constitution, and the President must then sign the bill into law to establish the department; the President will also appoint the department head, subject to Senate confirmation.
Despite the broad authority granted by the United States Constitution to the president, he does not have "unilateral and unrestrained authority over the Executive Branch" and "congressional action is required to create Executive Branch departments, to fund them, to determine the nature and scope of their duties and to confirm the appointment of their top leaders". While the president manages the conduct of executive branch offices, "it is Congress, not the President, that establishes departments and agencies, and to whatever degree it chooses, the internal organization of agencies".
Elon Musk formed DOGE in cooperation with the Trump administration with the stated goal of finding ways to fire federal workers, cut programs and slash federal regulations. However, it now appears that DOGE is operating in violation of the Federal requirements for formation and approval of a Department of the Federal Government, and there is a pending lawsuit that seeks to force DOGE to comply with the law, so the public has the ability to hold it accountable for the sweeping changes its unelected and unaccountable leaders plan to make.
DOGE Actions to Shut Down USAID
USAID, whose website vanished on February 1, 2025 without explanation, has been one of the federal agencies most targeted by the Trump administration. The Trump administration and Secretary of State Marco Rubio have imposed an unprecedented freeze on foreign assistance that has shut down much of USAID’s humanitarian, development and security programs worldwide.
DOGE, which is heading Donald Trump’s efforts to shrink the federal government, has said they are working to completely shut down the foreign aid agency USAid, in a social media discussion on X early on Monday, February 3, 2025. This unprecedented freeze imposed by the Trump administration and Secretary of State Marco Rubio have shut down much of USAID’s humanitarian, development and security programs worldwide.
USAid is the world’s largest single donor. In fiscal year 2023, the US disbursed $72bn of assistance worldwide on everything from women’s health in conflict zones to access to clean water, HIV/Aids treatments, energy security and anti-corruption work. It provided 42% of all humanitarian aid tracked by the United Nations in 2024.
Trump’s global freeze on most US foreign aid as part of his “America First” policy is already sending shock waves around the world. Field hospitals in Thai refugee camps, landmine clearance in war zones, and drugs to treat millions suffering from diseases such as HIV are among the programs at risk of elimination.
The administration has placed two top security chiefs at USAID on leave after they refused to turn over classified material in restricted areas to Musk’s government-inspection teams.
Members of Elon Musk’s Department of Government Efficiency (DOGE), gained access on February 1, 2025 to the aid agency’s classified information, the former official said.
DOGE has now been given access to the federal payment system, exposing the sensitive personal data of millions of Americans as well as details of public contractors who compete directly with Musk’s own businesses.
DOGE, which is heading Donald Trump’s efforts to shrink the federal government, has said they are working to shut down the foreign aid agency USAid, in a social media discussion on X early on Monday, February 3, 2025.
Musk has not stated what legal authority he believed the White House has to shut down a federal agency without congressional approval, or how quickly the administration planned to act. He has only stated that the idea had “the full support of the president” and that he had spoken with Trump on the matter several times.
The U.S. Constitution gives Congress the authority to both establish and abolish federal agencies to carry out the powers granted to it by the Constitution. While the Congress has, indeed, delegated to past presidents some authority to change certain federal departments, including creating and eliminating federal agencies, Congress must still pass a law to give the president this authority, and the president’s plan still must be approved by Congress.
If the recent actions by DOGE and the Trump administration’s sound like a tremendous overreach of Executive Branch power, it’s probably because that is precisely what is happening. DOGE and the Trump administration are being manifestly obstructive to the US Constitution in general and, specifically, to the Balance of Powers in the Federal Government.
It appears that Musk’s DOGE and the Trump administration are clearly defying the constitutional power of Congress to determine how money is spent. This action is unconscionable, not to mention in direct defiance of the rule of law and general disregard for the US Constitution.
https://www.gsa.gov/system/files/with_annotations_R2G-b4T_0Z5RDZ-i34K-pR_%281%29.doc
https://constitution.congress.gov/browse/essay/artII-S2-C2-3-6/ALDE_00000012/
Moe, Ronald. "The President's Reorganization Authority: Review and Analysis". congressionalresearch.com. Congressional Research Service. Retrieved March 10, 2017.
https://www.nteu.org/legislative-action/congressional-testimony/what-authority-the-president-should-have
https://www.citizensforethics.org/wp-content/uploads/2025/01/APHA-v-OMB-DOGE-Complaint.pdf
https://www.nbcnews.com/politics/politics-news/elon-musk-says-trump-are-shutting-usaid-rcna190388
The executive can claim it is entitled to test the constitutional limits of its authority.
What concerns me is that the courts may take an "ends justify the means" approach and may endorse a substantial increase in the executive's authority, and/or that the executive may ignore court rulings.
I have no doubt what Trump, Musk and their gang will try to do. I wish I had confidence that SCOTUS will rein them in, that Trump will obey court orders, and that a massive shift of authority to the executive will not replace the system of checks and balances that has served us pretty well.