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The initial actions of the second Trump Administration have dominated recent news cycles, drawing public

attention to areas of the federal government that were previously unfamiliar to many Americans. Perhaps the most salient of these actions has been the establishment of the Department of Government Efficiency (DOGE). Nominally led by tech executive Elon Musk, DOGE has been tasked with dramatically reducing federal spending by identifying “waste and fraud” in federal programs [1]. Already, many federal agencies and employees have been dramatically impacted by the freezing of funds, prompting vocal opposition to this new agency and the implementation of its agenda. The scope of Musk;s power as an unelected official and the legitimacy of the agency's ability to prevent funding for federal programs have been points of concern, and federal courts have now been tasked with adjudicating the constitutionality of these actions, and the establishment of DOGE as an agency, on behalf of the President.

 

[1] Reuters Staff, Musk says he expects to save $150 billion from government “waste and fraud,” Reuters, Apr. 11, 2025, https://www.reuters.com/world/us/musk-says-he-expects-save-150-billion-government-waste-fraud-2025-04-11/.

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Establishing DOGE as an Agency

DOGE was established on the day of President Donald Trump's second inauguration with the signing of

Executive Order 14158. This executive order publicly renamed the preexisting United States Digital Service (USDS), a subsidiary of the Office of Management and Budget, to the United States DOGE Service. However, framing this reorganization as a simple renaming of an existing agency obscures important differences between the structures and missions of USDS and DOGE. Unlike USDS, the newly established DOGE reports directly to the Executive Office of the President. In the words of the Executive Order, “There shall be a USDS [meaning United States DOGE Service] Administrator established in the Executive Office of the President who shall report to the White House Chief of Staff [2].” This means that DOGE effectively assumes greater authority than the former USDS as there is a much smaller buffer between the President's executive authority and that of the new agency. The language of this executive order also implied that DOGE would fulfill a role similar to its predecessor, aiming to “implement the President's DOGE Agenda, by modernizing Federal technology and software to maximize governmental efficiency and productivity.”2 However, the actions taken by DOGE in the first few months of the Trump administration have brought into question whether the language used in this executive order accurately represents the scope of DOGE's mission. While USDS maintained a relatively minor role in government affairs throughout its existence, the added duty of implementing President Trump's DOGE agenda has involved interference with the operation of other governmental agencies and even cabinet-level executive departments. Considering this, it may seem more fitting for DOGE to have been officially constructed as a new executive department, rather than the successor to a small agency like USDS, but constructing DOGE as an agency carries significant legal implications. The classification of DOGE as either an agency or department may seem like an unnecessary semantic distinction, but the difference is substantial in discussions of DOGE's constitutionality. In fact, this distinction may determine whether President Trump violated the Constitution by acting beyond the scope of his executive authority as President.

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[2] Establishing And Implementing The President’s “Department Of Government Efficiency” – The White House, The White House (2025), https://www.whitehouse.gov/presidential-actions/2025/01/establishing-and-implementing-the-presidents-department-of-government-efficiency/.

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Executive Departments and Agencies under the Appointments Clause

The Appointments Clause of the Constitution states that “[The President] shall nominate, and by and with the

Advice and Consent of the Senate, shall appoint… all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law [3].” This clause is pertinent to DOGE as it implies that executive departments, understood as cabinet-level agencies holding significant authority and led by Officers of the United States (henceforth “Officers”), must be created through legislation. Thus far, DOGE has been able to operate without oversight from the Senate due to its official classification as an agency, but no judgment has clearly determined whether this classification is legitimate. The ramifications of such a judgment, which could serve as the basis for a sweeping injunction of DOGE's operations, would be significant. Given DOGE's seeming independence and the impact of its actions, it seems likely that courts would rule in favor of a constitutional challenge that argues DOGE has acted beyond the authority of a non-Cabinet agency, but DOGE will maintain its classification as an agency unless a challenge like this is issued and affirmed.

 

[3] U.S. Const. art. II, § 2, cl. 2.

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Elon Musk's Role under the Appointments Clause

The Appointments Clause also exposes a constitutional question regarding DOGE's leadership. Musk's role as a

presidential advisor and the apparent leader of DOGE received much attention at the start of President Trump's second term, but Musk's official position in relation to the department has remained unclear. While Musk was clearly presented as the driving force of DOGE, he was never officially named as the acting administrator, and The White House has resisted inquiries into the official head of the new department. The most credible report of DOGE's official leadership came from an anonymous White House official who recently reported that Amy Gleason, an employee of the former USDS, has been named as the acting administrator [4]. Regardless of whether Musk or Gleason is the agency's official administrator, Musk's influence over DOGE's operations supports many legal experts' claims that he is acting beyond the authority of either an advisor or an agency administrator. The title of administrator, which does not imply a high level of status or authority, makes sense considering the language of Executive Order 14158, which represents DOGE as a small agency with a narrow role. The head of an agency that is primarily tasked with updating technology used by the federal government would not typically be considered an Officer and could be appropriately titled as an administrator. However, this title may not reflect a position with the authority to withhold funding from federal programs or even attempt to dismantle a government agency. The head of a department, which could legitimately control the operations of smaller agencies on behalf of the President, is typically a senate-confirmed Secretary, the prototypal example of an Officer. Since the start of President Trump's second term, DOGE has interfered with the operations of federal programs, agencies, and executive departments in accordance with Musk's recommendations. While the Appointments Clause does not explicitly define the level of authority reserved for Officers, Musk's impact on the affairs of the executive branch has served as the basis for critics' claims that his authority has exceeded this threshold. Members of Congress have issued statements demanding the President to recognize that Musk has been acting as an Officer without congressional approval, thereby respecting congressional authority to hold powerful members of the executive branch accountable. Yet, it remains to be seen whether this resistance to the agency's operations will lead to legal action aimed at the whole department. In the meantime, courts have resisted DOGE's interference in other agencies by issuing injunctions against several of its specific actions carried out in service of the President's DOGE agenda. 

 

[4] David Ingram, Amy Gleason named Acting Administrator of Elon Musk’s DOGE, NBC News (2025), https://www.nbcnews.com/tech/elon-musk/amy-gleason-named-acting-administrator-elon-musks-doge-rcna193613.

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Judicial Review of Elon Musk and DOGE

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Perhaps the most publicized of DOGE's actions has been the attempted dismantling of the United States Agency

for International Development (USAID). Far from the narrow purview of modernizing the technology used by the federal government, DOGE officials shut down the USAID website and paused all international humanitarian work led by the agency [5]. Many current and recently terminated employees of USAID filed lawsuits alleging that DOGE acted unconstitutionally in its unilateral freezing of federal funding and firing of workers. On March 17, 2025, Judge Theodore Chuang of the District Court of Maryland ruled in favor of these unnamed employees. In this decision, Judge Chuang expounded his agreement with claims that Musk has been acting as an Officer without congressional approval. Defendants claimed that the action taken against USAID had been executed by Marco Rubio, current Secretary of State and acting administrator of USAID, who would have the legitimate authority to lead such an initiative. Judge Chuang rejected these claims, finding that evidence overwhelmingly supported the notion that Musk had directly acted against USAID rather than simply delivering recommendations to officials with power over the agency [6]. This ruling gives answers to some of the constitutional questions surrounding DOGE. Judge Chuang references Musk as the acting administrator of DOGE and holds him responsible for the action taken against USAID. This recognition that Musk's role has exceeded that of an advisor shows that courts, at least at the district level, consider Musk's position in relation to DOGE to constitute a violation of the Appointments Clause. Yet, considering that the DOGE agenda has been a central point for the new Trump administration and that Musk has played a key role in its implementation, it seems likely that Judge Chuang's ruling will be appealed to the Supreme Court, where it is uncertain if the judgment will be affirmed.
 

[5] Ivan Pereira, Here are all the agencies that Elon Musk and DOGE have been trying to dismantle so far, ABC News (2025), https://abcnews.go.com/Politics/elon-musks-government-dismantling-fight-stop/story?id=118576033.

[6] Hugo Lowell & Joseph Gedeon, Musk and Doge's USAid shutdown likely violated US constitution, judge rules, the Guardian (2025), https://www.theguardian.com/us-news/2025/mar/18/elon-musk-doge-usaid-shutdown-ruling (last visited Mar 18, 2025).

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Implications

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While Supreme Court Justices are nominally non-partisan, the majority of the current Justices are typically

identified as conservatives, and three were appointed by President Trump in his first term. Still, the constitutional issues presented in DOGE's interference with USAID operations seem significant enough that Judge Chuang's decision would be upheld regardless of bench composition. What remains to be seen is whether any action will be taken regarding the overall structure of DOGE. Allowing an agency such as DOGE, which exercises cross-departmental authority over the budgets and processes of other agencies, to be created through an executive order would greatly expand the powers of the President. The recent actions of courts across the nation indicate that the judicial branch has identified this as a potential basis for executive overreach and is prioritizing the maintenance of checks and balances in their judicial review of DOGE, but this cannot be taken for granted until demonstrated at the highest level of the judiciary.