Beware of the DOGE: The Battle Over Executive Overreach and Fiscal Sanity
Since its formation by executive order out of the ashes of the United States Digital Service, DOGE, led by its efficiency czar Elon Musk, has begun furiously dismantling the citadels of an amorphous federal bureaucracy. In a few short weeks, it has commandeered USAID, gained access to Treasury payment systems, signaled that it intends to downsize—if not entirely eliminate—the Department of Education, and initiated a precursory examination of IRS systems. Such unprecedented action has landed DOGE at the center of a political and constitutional firestorm. While Republicans laud its attempts to streamline spending and reign in unsupervised bureaucrats, Democrats allege that DOGE itself is an undemocratic body of unelected bureaucrats headed by an oligarch. Even its name is a contradiction—it isn’t actually a department at all, but rather a “temporary organization” under the Executive Office of the President. In response to such a grand assertion of executive powers, a crop of lawsuits have been filed by state attorneys, arguing that Musk’s power violates the Appointments Clause and the Constitution’s separation of powers.
Before we can interpret the constitutional contention surrounding DOGE, we must first understand the reasons behind its creation. Trump’s off-the-cuff references to cost-cutting measures potentially managed by Elon Musk first crystallized in a November 12th, 2024, statement by President Trump hailing DOGE as “The Manhattan Project” of our time and directing it to “slash excess regulations, cut wasteful expenditures, and restructure Federal Agencies[.]” Concerns over the Government’s unchecked accrual of debt and rampant spending are far from unwarranted. In 2024, US debt interest payments reached a record $1.2 trillion, surpassing the defense budget—now at $817.8 billion—and coming in 3rd as the largest single budgetary item behind Medicare and Social Security. In February, Musk called the US Debt Clock “terrifying,” and he has repeatedly invoked the specter of a debt-powered doom loop, wherein national debt interest payments rise, investors demand higher returns on government bonds, and the government defaults. Moreover, in 2023 after US debt ballooned during and after the COVID-19 pandemic, Fitch Ratings, an international credit rating agency, made headlines when it downgraded the United States’ long-term foreign-currency issuer default rating from AAA to AA+, citing such bellwethers as “a steady deterioration in standards of governance over the last 20 years…[and] repeated debt-limit political standoffs…[that] have eroded confidence in fiscal management.” During a February 11th Oval Office press conference alongside President Trump, Musk, in a black-on-black “Make America Great Again” hat, warned, “It’s not optional for us to reduce the federal expenses…It’s essential. It’s essential for America to remain solvent as a country.”
In essence, Mr. Musk is right. Without the necessary steps to prevent a US default, we might experience a fiscal cataclysm that would weaken the dollar, send the economy reeling, and undermine the United States’ ability to sustain critical domestic programs and our broad international power projection apparatus. One must conclude that DOGE’s aims are valid. But, from a constitutional perspective, are its methods?
After Treasury Secretary Scott Bessent granted DOGE representatives access to the federal payment system, the first legal challenges to its power began. A coalition of nineteen Democratic state attorneys general filed a lawsuit contending that DOGE’s access to sensitive financial information lacked legal authority, could lead to improper disclosures, and heightened the risk of cyberattacks. Furthermore, the states, seeking an injunction, contended that Musk and other DOGE employees’ access to the Bureau of Fiscal Services payment systems constituted an unprecedented expansion of such access to political appointees and special government employees—one of whom is Musk—and alleged that President Trump, Musk, and DOGE thus violated the Administrative Procedure Act (APA), the separation of powers doctrine, the Take Care Clause of the Constitution. That led Judge Paul A. Engelmayer, a Judge on the District Court for the Southern District of New York, to grant a temporary restraining order (TRO) at 12:39 am, only four hours after the coalition of Democrat attorneys general filed a memorandum in support of New York Special Trial Prosecutor Colleen Faherty’s request for a “Declaratory and Injunctive Relief” against DOGE. Engelmayer’s restraining order barred “political appointees, special government employees, and government employees detailed from an agency outside the Treasury Department” from accessing Treasury payment systems. It only allowed access to “civil servants with a need for access to perform their job duties…who have passed all background checks and security clearances and taken all information security training called for in federal statutes[.]” The authoritative dichotomy Engelmayer draws between political appointees and bureaucrats in his order seems not only arbitrary but almost confounding. Can the Secretary of the Treasury—a political appointee, no less—not view the payment systems of his own agency? And if the President and his chosen agents can be prevented from accessing payment systems within the executive branch, what real discretion can the President be said to possess?
Thus, while Engelmayer’s TRO might lead to further protections against improper disclosures and minimize the risk of cyberattacks, it also reveals a Judiciary capable of enforcing dubious measures against selective strata of federal employees while negating Presidential authority. After all, Engelmayer’s acceptance of the state’s claim that DOGE’s retained access to Treasury Dept. payment systems will cause “irreparable harm” is exceedingly flimsy. Rather than granting the TRO on the grounds of material harm that has already been partially caused yet can be halted, Engelmayer instead referred only to “the risk that the new policy presents of the disclosure of sensitive and confidential information and the heightened risk that the systems in question will be more vulnerable than before to hacking.” In Winter v. Natural Resources Defense Council (2008), which Engelmayer cites, the Supreme Court held that a plaintiff seeking preliminary relief must demonstrate not only a risk of harm but a “likelihood of harm in the absence of preliminary relief” as well as showing that “an injunction is in the public interest.” But what exactly qualifies as the public interest? How are mutually exclusive yet viable public interests weighed against one another? Not only have the states failed to meet Winter v. Natural Resources Defense Council’s test, but they have neglected even to address the fact that their interest in reducing the chance of leaks or cyberattacks might be outweighed by the greater public interest—the rapid reduction of the federal budget deficit and the reintroduction of responsible fiscal governance.
Judge Tanya Chutkan of the U.S. District Court for the District of Columbia seemed to concur, in part, in the 10-page ruling she issued on Tuesday, February 18th, denying another TRO sought by Democratic attorneys general from 14 states against DOGE’s access to the systems of seven other federal agencies, including the Department of Education and the Office of Personnel Management. Quoting the DC Circuit’s ruling in Wisconsin Gas Co. v. F.E.R.C., she notes that “[f]irst, the injury must be both certain and great; it must be actual and not theoretical.” Going even further in that ruling, the DC Circuit cited Connecticut v. Massachusetts, asserting that “Injunctive relief ‘[cannot] be granted against something merely feared as liable to occur at some indefinite time.’” With this in mind, it is clear that the states in both Judge Chutkan's and Judge Engelmayer’s cases blatantly fail to establish that the harm purportedly borne by DOGE’s actions is both real and imminent and, therefore, lack standing altogether.
However, Chutkan paused in her analysis, stating that the plaintiff’s auxiliary claim that Musk’s legal authority violates the Appointments Clause is correct. Chutkan went on to warn that Musk’s actions bypass a “significant structural safeguard of the constitutional scheme” and constitute the very “‘Executive abuses’ that the Appointments Clause seeks to prevent.” But what, precisely, does the Appointments Clause have to say about Musk’s position? Judicial precedent regarding the specific meaning of the Article II Appointments Clause first arose in Buckley v. Valeo. There, the Court resolved the murky dichotomy between superior “Officers”—those required to be confirmed with the “advice and consent of the Senate”—and “inferior Officers”—those whom the President can essentially hire as he sees fit. In Buckley, the Court held that the Appointments Clause applied to any officer “exercising significant authority pursuant to the laws of the United States.” An analysis of Musk’s standing concerning the Appointments Clause thus necessitates an official definition of his precise authority—and until Tuesday, February 18th, there was little to none. That day, in an unsworn declaration, Joshua Fisher, Director of the Office of Administration in the White House—likely in response to Judge Chutkan’s concerns—stated that Musk is a Senior Advisor to the President hired as a “Special Government Employee” (SGE), just as Anita Dunn advised President Biden as an SGE, and furthermore, that “Mr. Musk is an employee in the White House office…[and] not an employee of the U.S. DOGE Service…[or] the U.S. DOGE Service Administrator.” Elon Musk’s unique status as an SGE redefines his powers—in sharp contrast to the symbolic status indicated in his Oval Office presser—and enables him to circumvent the onerous disclosure requirements for ordinary government employees while simultaneously evading the scrutiny of the appointment process. While Musk, as an SGE, still has to file confidential financial disclosures with the US Office of Government Ethics (OGE), they remain private and can only be read by OGE’s ethics officials. In accepting SGE status, however, Musk negates his individual authority, heightening his dependence on Trump and lessening the chances of any damaging dispute between the two over policy matters.
Thus, although DOGE’s “you can’t make an omelet without breaking eggs” attitude is undoubtedly disruptive, its position as “a component of the Executive Office of the President” means that Musk needs no legal authority, as he never acts. The fact remains that DOGE’s power stems not from Mr. Musk’s alleged status as its de facto administrator but from President Trump’s constitutional prerogative to reorganize the executive branch as he sees fit and to “take Care that the Laws be faithfully executed.” Limitations to more than sheer individual power attend Musk’s status as an SGE, despite its statutory validity—term limits. According to 18 U.S. Code § 202, special government employees may be employed by any independent agency of the United States government, but for a term not exceeding 130 days within a calendar year. While Musk’s necessarily limited term of service under the statute somewhat parallels DOGE’s ordered end date of July 4th, 2026, it is far shorter. As Musk cannot legally serve as an SGE beyond May 29th, 2025, new questions arise. Will Musk continue to support DOGE’s efforts, or will a new advisor be brought in to direct its operations through Trump? Is his SGE status merely a tactic to buy time while Majority Leader John Thune and House Speaker Mike Johnson corral the necessary legislative coalition to establish DOGE through an act of Congress and appoint Musk as its head through the confirmation process? Or, could House and Senate Republicans extend term limits on SGEs or repeal them altogether? Time alone will tell.
Only in disregarding these legal minutiae, however, can one accurately appraise DOGE and the nature of its actions. While many of the legal challenges to DOGE’s actions and Musk’s authority revolve around alleged active violations of provisions within the Constitution and other statutes regarding the powers of the executive, the crux of the controversy instead emanates from the grave inaction of another branch: Congress. While one might find fault with President Trump, Mr. Musk, or their detractors, none act in a vacuum. Rather, they inhabit a federal government that finds itself with a legislative branch hanging limp, dumb, and atrophied, and naturally seeks other measures with which to protect national solvency. Despite Republicans' narrow control of both houses, any attempt to pass meaningful legislation granting real authority to a newly created Department of Government Efficiency would be filibustered or otherwise defeated. Ultimately, Congress’ inactivity has forced an unprecedented dilemma upon the American people: a constitutionally assertive executive or national bankruptcy?
Will Vogel is a junior at Brown University studying Political Science and International and Public Affairs. He is a writer for the Brown Undergraduate Law Review and can be contacted at william_vogel@brown.edu.
Kourtney Beauvais is a junior at Brown University studying Statistics and International and Public Affairs. She is a blog editor for the Brown Undergraduate Law Review and can be contacted at kourtney_beauvais@brown.edu.