Why DOGE is (still) unconstitutional

Trump gave a private billionaire unprecedented federal power, hiding behind unsubstantiated claims of waste and fraud

Since Donald Trump returned to the Oval Office, he has pushed far beyond whatever weak boundaries remained to keep malevolent presidents in check. Over 90 lawsuits have been filed to challenge the mounting illegal and unconstitutional maneuvers. Over 20 of them involve the so-called “Department of Government Efficiency.”

In just a few weeks, “DOGE” has been dismantling agencies and firing top officials and career employees. These include those engaged in at least 32 investigations or enforcement actions into Musk’s companies.

White House Press Secretary Karoline Leavitt has laughably claimed that Musk is somehow self-policing his glaring conflicts of interest.

Foxes guarding hen houses is not how our system of laws works. Trump knows it, his Vice President (with a law degree from Yale) knows it, Musk knows it, and thankfully so far, the federal courts seem to know it too.

---

This newsletter unpacks a bit of the constitutional chaos. I hope you share it widely (and if you can, please consider upgrading to paid).

I’m immensely grateful for your support!

---

Two of Musk’s companies, Tesla and SpaceX, have reportedly received $18 billion in federal contracts over the past ten years. Presumably, by DOGE standards, these cannot possibly entail fraud or waste — unlike jobs for people answering veterans’ suicide hotlines, weather experts who transmit information to air traffic controllers, pediatric cancer researchers, and national park rangers.

As Musk cuts these other contracts and programs, it is impossible to know whether any of those actions are actually saving taxpayers money and, if so, where that “saved” money is going. The DOGE website is full of errors and misstatements, including taking credit for stopping contracts that had ended years ago.

As I explained in my latest piece for The Hill, the federal courts are doing far more than Congress and at least trying to slow down DOGE by issuing orders that will hopefully make things harder for Musk and his team.

Congress is mostly complicit in taking a wrecking ball to our 250-year-old constitutional democracy.

Take note, voters. Every last one of them who stands aside or cheers on this tragedy should be fired at the ballot box when their times come for re-election.

What is DOGE?

On Trump’s first day in office, one of the many executive orders that he issued was titled “Establishing and Implementing the President’s ‘Department of Government Efficiency.’” In that order, Trump stated that this new federal agency would “moderniz[e] Federal technology and software to maximize governmental efficiency and productivity.”

In Section 3 of the order, Trump clarified that DOGE would be “reorganizing and renaming” what was formerly known as the United States Digital Service (USDS). President Barack Obama created the USDS to, in the words of one of the people who helped put it together, “meet the public’s expectations, or help the agencies meet these raised expectations of the public” concerning “digital presence.”

But what has yet to be answered is exactly what DOGE is doing and how the agency is “maximiz[ing] governmental efficiency and productivity.” In the words of one of the lawsuits brought against the department, what DOGE has done instead is “roamed through the federal government unraveling agencies, accessing sensitive data, and causing mass chaos and confusion for state and local governments, federal employees, and the American people.”

Regardless of one’s party affiliation, this should be mind-boggling. Nobody even knows what’s actually going on.

The Trump administration has been totally inconsistent regarding DOGE's activities and who is in charge of them. In a sworn statement filed with D.C. federal judge Tanya Chutkan, House official Joshua Fischer alleged that Musk is not running DOGE and “has no actual or former” decision-making authority; instead, he is just an adviser to the president.

But last month, Musk called for the United States to “delete entire agencies” from the federal government, and his impact has already negatively impacted the lives of tens of thousands of federal employees and their families (there are no official figures for exactly how many).

Then, just four days ago, Trump announced that Cabinet secretaries, not Musk, would handle reducing the staffs of federal agencies after facing harsh criticism for talking as if Musk was in charge.

The administration has also taken two contradictory positions on whether DOGE is operating within the limits of the law. The administration has said that DOGE is following all laws, including using federal contractors and “special government employees.”

Simultaneously, the administration maintains that DOGE is not subject to basic oversight laws like the Freedom of Information Act and has kept its staffers' identities mostly private. The Trump administration expects that the American people, litigants, and judges will all believe that DOGE isn’t doing anything illegal or even following Musk’s orders. It’s, again, utterly laughable — if it weren’t so disturbing.

What is the history of federal agencies, and how are they created?

Federal government agencies are not created by presidents via an executive order.

After the New Deal, Congress began creating federal agencies by statutes to try and manage the effects of the Great Depression. These federal agencies are often given the authority to pass laws called regulations, which carry the same weight as laws made by Congress. Federal agencies include entities like the Department of Education, Department of Defense, Department of Homeland Security, and Department of Agriculture. The agencies are made up of experts in the field that they manage who operate through the President’s chain of command but are creatures of Congress.