ELON AND HIS DOGE: WHAT IS IT, WHERE DID IT COME FROM, AND IS IT LEGAL?
Author: Jacob Fritz, Associate Editor
The creation of the Department of Government Efficiency (“DOGE”) has sparked numerous constitutional and legal questions. Issues have been raised regarding the role of Elon Musk, the potential violation of the Privacy Act of 1974, and concerns over the Appointments Clause of the U.S. Constitution. The controversy began following the executive order that made DOGE “official,” which was signed by President Trump on his first day in office.[i] The legal challenges to DOGE are numerous and reflect the complexities of executive overreach and accountability in federal governance.
The Transformation of USDS into DOGE: A Shift in Scope and Authority
In 2014, the United States Digital Services (“USDS”) was initially created to improve government technology and digital infrastructure.[ii] However, on President Trump’s first day in office, a controversial executive order renamed USDS as the United States DOGE Service while also expanding its mandate.[iii] The new department was designed “to improve the quality and efficiency of government-wide software, network infrastructure, and information technology systems.”[iv] This order was grounded in 5 U.S.C. § 3161, which allows the creation of temporary organizations, with part of DOGE expected to terminate by July 4, 2026.[v]
The order did not grant DOGE the authority to override agency heads or other executive functions, making its creation and subsequent activity highly questionable under constitutional principles.[vi] The order explicitly states that “nothing in this order shall be construed to impair or otherwise affect . . . the authority granted by law to an executive department or agency.”[vii] This suggests that the new department was not meant to wield extensive independent authority over federal agencies. Yet Musk’s claims about DOGE’s broad mandate—such as offering buyouts to government employees, cutting substantial portions of the federal budget, and closing federal buildings—seem to stretch beyond the limited scope of the temporary organization envisioned by the executive order.[viii]
As critics point out, such authority is traditionally reserved for Congress, not the executive branch.[ix] The executive branch may not lawfully grant itself powers to overhaul entire federal functions or offer sweeping reforms without congressional approval.[x] These issues raise serious constitutional concerns, particularly regarding the separation of powers between the executive and legislative branches.[xi]
II. The Privacy Act of 1974: Protecting Personal Data
The Privacy Act of 1974 (the “Act”) governs how the federal government collects, uses, and shares the personally identifiable information (“PII”) of U.S. citizens.[xii] The Act mandates that federal agencies must establish safeguards for PII and disclose how it will be used.[xiii] A critical issue raised in relation to DOGE is whether the department’s actions are in violation of the Act.[xiv]
The Act allows for the "routine use" of PII, but only if the use of the data is compatible with the original reason for collection and has been published in the Federal Register.[xv] If DOGE were to disseminate PII without establishing a “routine use,” this could be a breach of the Act.
DOGE has collected data across many government agencies and used that information to audit their practices.[xvi] As a result of these audits, DOGE has already been responsible for huge slashes in budgets and layoffs of government employees.[xvii] First, the issue is whether DOGE has the authority to gather such information or access other agencies’ systems.[xviii] Second, using the PII for audits and employment decisions is arguably outside the scope of “routine use” required by the Privacy Act.[xix] This potential violation is currently the subject of multiple lawsuits against DOGE and Musk.[xx]
III. The Appointments Clause: Proper Delegation of Power
Another constitutional issue raised by Musk’s role is the Appointments Clause of the U.S. Constitution which requires that government officials who wield high degrees of power with little oversight to be appointed by the President with confirmation of the Senate.[xxi] This ensures that important positions are filled with oversight and transparency.[xxii] The concern here is whether President Trump’s executive order unlawfully delegated decision-making power to Elon Musk without Senate confirmation.[xxiii]
The plaintiffs in lawsuits such as New Mexico v. Musk argue that Trump’s actions effectively created a new executive entity in DOGE and unlawfully vested Musk with broad authority over the government without Senate confirmation.[xxiv] Musk, despite his involvement in DOGE, has never been formally appointed to a position that would require Senate confirmation and yet is exercising considerable power and influence.[xxv]
Defenders of DOGE and Musk claim that he is an "inferior" government employee, which might not require Senate confirmation.[xxvi] However, the plaintiffs argue that Musk is acting with significant authority over federal operations, which would typically require Senate approval.[xxvii] If Musk's role is more than that of a mere advisor, then his involvement in DOGE may indeed violate the Appointments Clause.[xxviii]
IV. What Is DOGE, Really?
The question of whether DOGE functions as an advisory committee or as an official arm of the executive branch looms large in the ongoing legal battles.[xxix] The White House has been walking a tightrope on how to classify DOGE.[xxx] If it falls under an executive office as the order claims, then Musk being the administrator runs afoul of the Appointment Clause in Article II of the Constitution.[xxxi] Moreover, executive agencies require creation by Congress to carry out a particular goal.[xxxii] Although Trump framed DOGE as a restructuring of the USDS, DOGE’s activity and stated purpose in the order does not fall within the scope of the USDS’s original purpose.[xxxiii]
Critics argue that the restructuring of USDS into DOGE essentially converted it into a de facto advisory committee dominated by private-sector influence.[xxxiv] If this is the case, then DOGE’s actions exceed the minimal authority of research and proposals that is usually granted to such a committee.[xxxv] Furthermore, according to the Federal Advisory Committee Act (“FACA”), advisory committees must be transparent, hold public meetings, and maintain detailed records, but DOGE does not meet these criteria.[xxxvi]
A lawsuit filed by National Security Councilors and Kel B. McClanahan asserts that DOGE is violating FACA by allowing private individuals like Musk to wield power over government functions without the required transparency or accountability.[xxxvii] McClanahan also argues DOGE’s use of PII could violate the Privacy Act if this data is not properly protected and disclosed.[xxxviii]
In response to the legal challenges, the White House issued a declaration clarifying that Musk was not appointed to DOGE and does not hold a position that would require Senate confirmation.[xxxix] However, as noted during President Trump’s March 4 address to Congress, he referred to Musk as being the leader of DOGE, which contradicts the White House's position and raises further doubts about the legality of Musk’s involvement.[xl]
VI. Conclusion
The formation of DOGE and Elon Musk’s involvement in its operations raise critical constitutional concerns and other legal questions. From potential violations of the Privacy Act to concerns about executive overreach, the legal landscape surrounding DOGE is complex. The crux of these issues lies with whether DOGE will be classified as an advisory committee or as an executive agency. However, it seems there is no safe harbor under either label. As the lawsuits proceed, future judicial decisions will likely shape the future of executive power and the protection of citizens' privacy rights. The outcomes of these challenges will be pivotal in defining the relationship between government branches.
[i] Exec. Order No. 14158, 90 C.F.R. § 8441 (2025).
[ii] Digital Services Oversight and Safety Act of 2022, H.R. 6796, 117th Congress § 2 (2022).
[iii] Exec. Order No. 14158, 90 C.F.R. § 8441 (2025).
[iv] Id.
[v] 5 U.S.C § 3161.
[vi] Exec. Order No. 14158, 90 C.F.R. § 8441 (2025).
[vii] Id.
[viii] Elon Musk (@elonmusk), X.COM (Feb. 1, 2025), https://x.com/elonmusk/status/1885574678737039823.
[ix] Louis Jacobson, Do Elon Musk and DOGE have power to cut spending, close agencies?, AUSTIN AMERICAN- STATESMAN (March 3, 2025, 2:19 PM), https://www.statesman.com/story/news/politics/politifact/2025/02/13/ do-elon-musk-and-doge-have-power-to-cut-spending-close-agencies/78458397007/.
[x] Id.
[xi] Iain Murray, DOGE Gets Serious in Its War on the Administrative State, COMPETITIVE ENTER. INST. (Mar. 3, 2025, 3:04 PM), https://cei.org/opeds_articles/doge-gets-serious-in-its-war-on-the-administrative-state/.
[xii] 5 U.S.C. § 552(a).
[xiii] Id.
[xiv] Complaint at 57, State of New Mexico v. Musk, 2025 U.S. Dist. LEXIS 29871 (D.D.C. Feb. 17, 2025) (1:25-cv-00429).
[xv] 5 U.S.C. § 552(a).
[xvi] Anna Bower, Advocacy Groups File Four Lawsuits Against Musk-Led DOGE, LAWFARE, (Jan. 20, 2025, 3:17 PM), https://www.lawfaremedia.org/article/advocacy-groups-file-four-lawsuits-against-musk-led-doge.
[xvii] Meg Kinnard, A comprehensive look at DOGE’s firings and layoffs so far, AP NEWS, (Feb. 21, 2025, 7:08 PM), https://apnews.com/article/doge-firings-layoffs-federal-government-workers-musk-d33cdd7872d64d2bdd8fe70c28652654.
[xviii] Id.
[xix] Press Release from Rep. Suhas Subramanyam, (D-VA), The Legislative Enforcement Against Setbacks from Harmful DOGE Actions Act, (Feb. 24, 2025) (on file with author).
[xx] Complaint at 53-55, State of New Mexico v. Musk, 2025 U.S. Dist. LEXIS 29871 (D.D.C. Feb. 17, 2025) (1:25-cv-00429).
[xxi] U.S. Const. art. II, § 2, cl. 2
[xxii] Id.
[xxiii] Michael Stratford, Judge questions constitutionality of DOGE, Musk’s role, POLITICO, (Feb. 24, 2025, 8:52 PM), https://www.politico.com/news/2025/02/24/judge-questions-constitutionality-doge-elon-musk-00205866.
[xxiv] Complaint at 53-55, State of New Mexico v. Musk, 2025 U.S. Dist. LEXIS 29871 (D.D.C. Feb. 17, 2025) (1:25-cv-00429).
[xxv] Declaration of Joshua Fisher, State of New Mexico v. Musk, 2025 U.S. Dist. LEXIS 29871 (D.D.C. Feb. 17, 2025) (1:25-cv-00429).
[xxvi] Defendant’s Response at 5, State of New Mexico v. Musk, 2025 U.S. Dist. LEXIS 29871 (D.D.C. Feb. 17, 2025) (1:25-cv-00429).
[xxvii] Id.
[xxviii] Complaint at 56, State of New Mexico v. Musk, 2025 U.S. Dist. LEXIS 29871 (D.D.C. Feb. 17, 2025) (1:25-cv-00429).
[xxix] Telephone interview with Kel McClanahan, Esq., National Security Counselors, YOUTUBE (Feb 24, 2025), https://www.youtube.com/watch?v=ihvSwJT0rLU.
[xxx] Id.
[xxxi] Exec. Order No. 14158, 90 C.F.R. § 8441 (2025).
[xxxii] Id.
[xxxiii] Id.
[xxxiv] Complaint at 2-5, Public Citizen, Inc. v. Trump, (D.D.C. Jan. 20, 2025) (1:25-cv-00164).
[xxxv] Id.
[xxxvi] 5 U.S.C. § 1006.
[xxxvii] Complaint at 3, Lentini v. Department of Government Efficiency (D.C.C Jan. 20, 2025) (1:25-cv-00166).
[xxxviii] Id.
[xxxix] Declaration of Joshua Fisher, State of New Mexico v. Musk, 2025 U.S. Dist. LEXIS 29871 (D.D.C. Feb. 17, 2025) (1:25-cv-00429).
[xl] Brent D. Griffiths, Natalie Musumeci, Trump told Congress that Musk runs DOGE — and the lawyers noticed, YAHOO NEWS, (Mar. 5, 2025, 2:59 PM), https://www.yahoo.com/news/trump-said-address-musk-runs-164600524.html.