The Department of Government Efficiency, or DOGE, was created by President Donald Trump through an executive order on the first day he was back in office. Trump put tech billionaire and new best friend Elon Musk in charge of DOGE and promised to use the unit to cut government waste and reduce federal regulations.
DOGE isn’t a new agency. It is a renamed, previously existing government agency, established in 2014 during the Obama administration, called United States Digital Service, which was created to help improve the federal government’s digital capabilities after the rocky rollout of the HealthCare.gov website.
Trump’s executive order moves the agency from the Office of Management and Budget to the Executive Office of the President and directs it to modernize technology and software across the federal government.
DOGE and Musk have attracted a lot of attention with their bluster, accusations and name calling. They want to shut down USAID, the government’s main humanitarian and development aid agency. They want to cut the federal workforce by offering buyouts and other inducements to federal workers to leave the government payroll. And they have been granted access to Treasury Department payment systems that the government uses to issue checks to everyone from Social Security beneficiaries to government contractors.
DOGE’s activities have made a lot of people nervous and have prompted a torrent of legal and legislative challenges. And then there was the spectacle last week of Musk, with one of his young children perched on his shoulders, addressing the press in the Oval Office, to explain the workings of DOGE and its goals as the president sat attentively behind the Resolute Desk.
The DOGE purge efforts raise a lot of questions. But beyond the operational and staffing side of things, there is the fundamental question of whether what DOGE is trying to do is legal. Quite simply, is the government overhaul effort ordered by Trump and pursued by DOGE legal if it has not been authorized by Congress?
DOGE is a “department” that was not created by Congress, which is run by operatives who were not authorized under the Appointments Clause of the U.S. Constitution and who are not subject to guidance by the legislature. Is it legal for such an entity to dismantle government agencies and programs that were established by Congress and are staffed by millions of employees?
These questions implicate the separation of powers among the executive, legislative and judicial branches of government under our constitutional system. While legislative and executive powers overlap from time to time — usually in furtherance of a legislative program or plan — legislative authority belongs to Congress and executive power belongs to the president. The judiciary steps in when the parameters of that shared authority are in question or constitutional lines are crossed.
The future of DOGE will be decided in court. Precedent is clear that where “major questions” of significant political and economic consequences to the country are taken by the president without proper congressional authorization, those activities will be shut down.
If Congress wants DOGE to monitor, adjust or regulate agencies and programs it has created and authorized, it can tell DOGE to do so. But that’s not a decision that DOGE, Musk or even the president gets to make on their own.
We are a nation of laws and have a clear rulebook. Those laws and rules apply to everyone — even the president of the United States.
