One of the most contentious initiatives from President Donald Trump’s campaign, the formation of Elon Musk’s Department of Government Efficiency, or DOGE, has been a primary focus of major media for the past few weeks. Setting aside debates on its effectiveness, the department has faced fierce legal opposition from critics. In today’s highly polarized political climate, finding an unbiased assessment of the ongoing litigations is increasingly difficult and is especially essential at an institution such as Colgate University, which stresses fair discourse, freedom of thought and the value of an open mind as core tenets of a liberal arts education.
As such, it seems worthwhile to approach the controversial subject from a legal standpoint, separate from partisan bias. I believe that the establishment of DOGE is legally sound and strategically designed to achieve its goals within its limited lifespan. Despite opportunities for successful legal challenges, DOGE holds a strategic advantage over critics due to the court’s ideological leaning and the fact that litigation wouldn’t have serious impacts until after its 18-month agenda.
DOGE has faced a storm of legal challenges and controversy since its inception. To date, at least 12 lawsuits have been filed with at least three suits claiming that DOGE’s structure is illegal, arguing that it either needs to be shut down or restructured to comply with the law. The foundation of these legal battles centers on allegations of data misappropriation and authority overreach by DOGE, relying on the Privacy Act of 1974, the Freedom of Information Act, the 1974 Impoundment Control Act and the principle of the separation of powers enshrined in the United States Constitution. Critics challenging DOGE’s structure predominantly cite the Federal Advisory Committee Act, or FACA, as their legal basis.
The lawsuits filed by Public Citizen, Democracy Forward and National Security Counselors, a public-interest firm, seem to be clear-cut at first glance. However, I believe that the Trump administration has cleverly, and intentionally, worked its way around FACA. FACA requires transparency and certain regulations of federal advisory committees, such as requiring bipartisan representation from people who could be affected by the decisions they help make. By designating DOGE as a “temporary organization” instead of an advisory committee, President Trump strategically sidestepped key regulations under FACA. By rebranding the U.S. Digital Service as the U.S. DOGE Service, placing the administrator as the head of the U.S. DOGE Service Temporary Organization and ordering DOGE to “implement the President’s DOGE Agenda by modernizing federal technology and software to maximize governmental efficiency and productivity,” the Trump administration has seemingly avoided FACA regulation. Additionally, by following up with two other executive orders that expanded DOGE’s agenda and gave the agency more authority over other agencies to follow its guidance, Trump further expanded DOGE’s power and influence while staying within the law.
In my opinion, DOGE does not technically violate the Privacy Act of 1974 and the Freedom of Information Act (FOIA). To put it simply, DOGE toes the line between requirements and regulations. Under the Privacy Act, individuals can only sue agencies under very specific circumstances. For example, a successful lawsuit based on the Privacy Act could involve a departmental record-keeping failure. While I believe such a lawsuit won’t be successful, a settlement would simply cause DOGE to alter its data practices, and it could continue to follow the president’s initiative.
Though the 1974 Impoundment Control Act and the separation of powers may offer greater legal challenges, I do not believe even successful lawsuits will have any effect on DOGE. In the end, DOGE’s legality will likely depend on constitutional interpretation, which — with the Supreme Court’s ideological leaning — is likely to be decided in DOGE’s favor. Ultimately, the wording of exactly which powers are afforded to the legislative and executive branches will determine whether DOGE’s oversight of government spending is truly constitutional.
I believe that DOGE will win all lawsuits on the basis of structural legality, the Privacy Act and, eventually, the Freedom of Information Act. It appears that a key portion of relevant litigation will go to the Supreme Court, as is likely intended, and will likely be decided in DOGE’s favor by conservative-leaning justices. However, judicial protections will not be necessary for DOGE to pursue its goals. I believe that unless opponents are able to obtain temporary restraining orders — efforts that have thus far failed — DOGE will likely complete its 18-month tenure before any court rulings on its legitimacy can shut it down. Regardless of its efficacy, it appears that DOGE is equipped with the legal fortitude necessary to achieve its ambitious objectives.
