Who let the DOGE out? Will the Courts be able to muzzle Musk?

By Moss Magnusson, Political Theory

Vandalized Teslas, hundreds of protests, stormed dealerships, and scared owners—what’s going on here? The target is Elon Musk, owner of Tesla, and appointed “head” of Trump’s new Department of Government Efficiency (DOGE). The motive? A widespread belief that Musk has used his wealth to meddle in politics to the detriment of our democracy. The foundation for this belief is, among other things, Musk’s proximity to the President, his role in the 2024 Presidential election, and his new position at DOGE. This article will review the latter, examining the legality of DOGE and the flurry of legal challenges that have arisen since its inception. 

As of late March, there have been at least 150 lawsuits—and counting—against the second Trump administration (Enrich 2025). Many of these challenges are directly related to his Department of Government Efficiency, which is essentially a rebranding and reorganization of the United States Digital Service—an Obama-era task force created to improve federal and executive websites (The White House 2025; Cohen 2025). Now, DOGE is entrusted with modernizing federal technology and software to maximize governmental efficiency and productivity (The White House 2025). This initiative aims to restore fiscal transparency within the government and save taxpayer money, so it is one that, in principle, everyone should support. However, this endeavor has two distinct possible motivations: one aimed at ensuring taxpayers receive maximum value from their contributions, and another aimed at using agency reforms as a pretext for cutting taxes. DOGE, seemingly, is primarily driven by the latter.

The execution of DOGE’s initiatives has been contentious, to say the least. To date, DOGE’s website reports an “estimated savings” of $140 billion. One such receipt on DOGE’s website declared a saving of $8 billion from a single contract for the Immigration and Customs Enforcement agency. After further investigation, this receipt turned out to be massively overstated and was, in fact, worth $8 million (Bhatia et al., 2025). Many of these declared savings lacked specific documentation and are unverifiable (Reid 2025). 

DOGE has scoured over twenty federal agencies, gained access to personal data, and explored various avenues for cutting costs. Although there has been little transparency on DOGE’s efforts, some of the programs being scrutinized thus far include: Centers of Medicare and Medicaid Services, Consumer Financial Protection Bureau, Department of Education, Internal Revenue Service, National Institutes of Health, National Oceanic and Atmospheric Administration, and U.S. Agency for International Development (Pereira & Change 2025). After gaining access to these agencies’ data, DOGE has endeavored to shut down many of them, sending buyout offers to over 75,000 employees and termination notices to more than 25,000 (Reid 2025). Therefore, the bulk of the savings stems from mass layoffs, contract cancellations, and asset sales.  One such layoff notice targeted government employees with a “probationary” status. Probationary status typically applies to employees in the early years of their tenure, which means these firings may have been aimed at hires from the Biden era. However, employees recently promoted to new departments can also hold this status, resulting in some qualified individuals in critical roles being affected by the initiative (Lemley 2025). The consequences of DOGE’s data access have been sweeping, leading to large-scale cuts that have eliminated tens of thousands of jobs and rendered many government services defunct. Most notably, the U.S. Agency for International Development and the Consumer Financial Protection Bureau have been effectively shut down, with thousands of employees dismissed or furloughed (Reid 2025).

These large-scale initiatives have faced pushback, resulting in numerous lawsuits, as many fight the questionable grounds leading to their termination and fear the constitutionality of such immense power being wielded by unelected officials. These lawsuits can be distilled into two broad legal challenges confronting DOGE, which question its constitutionality and use of government data in these initiatives. The consequences of these challenges will have long-standing impacts on our democracy and the nature of power in our executive branch. While I will outline the issues at play, a definitive conclusion on either of these issues is impractical, requiring answers to untested questions that only our courts can decide. 

The Constitutionality of DOGE

The largest and perhaps most consequential grievance against DOGE questions its constitutionality. If Musk is heading the department as the president has claimed, then he should have been confirmed by the Senate in adherence with the Constitution’s appointments clause. Since this hasn’t happened, Musk’s apparent power would be running afoul of this clause and the principle of separation of powers. 

The constitution outlines the separation of powers not just between the branches of government but also within each branch. Within the executive branch, the Constitution gives power to the president alone because only he is accountable to the people (Poon 2025). However, because the president is only one person, and he can’t carry out his duties alone, the Constitution permits unelected officials to wield executive power on his behalf (Poon 2025). Those who are permitted to wield such power are appointed by the president and must be confirmed by the Senate. This category of unelected official is called an “officer”. Additionally, there also exist unelected “employees” who do not wield such power but can similarly assist the president, such as advisors. Musk is claimed to fall under the second category—he holds an advisory position, which would not allow him to make actual decisions. His introduction to this position came after massive campaign donations to the Trump administration, GOP candidates, and his influential status as the world’s richest man and owner of multiple large companies.

DOGE was technically established via executive order as an office inside the White House that is headed by Amy Gleason, who previously worked at the original USDS and was an official from the first Trump administration. Therefore, according to the current administration’s stance, Elon Musk is not formally part of DOGE; he is a White House advisor with no actual authority of his own (Sneed 2025; Poon 2025). In this position, Musk can give orders to federal agencies with no real authority, and they technically have the power to ignore him. However, agencies will follow his orders because his orders are expected to be in alignment with the preferences of the president. As Michael Poon notes, writing for the Pacific Legal Foundation: “…if a conflict arose between an agency head and Musk, the president may be expected to take Musk’s side…his power comes from the expectation that the president would back Musk if an agency head disagreed with Musk’s recommendation—the power does not come from formal, independent decision-making authority vested in Musk” (Poon 2025). And, the same power dynamic is true for Gleason, who has no official executive power. The problem with this stance is that it runs contrary to reporting from government whistleblowers and the rhetoric used by Trump and Musk, for instance, posing with a chainsaw to signify the big cuts to come (Sneed 2025). It is also contentious because Musk’s lack of an official title, alongside purporting to make such large-scale changes, is a dangerous precedent for executive power and for the influence that rich people, without qualifications, can have on our democracy. 

This unusual power dynamic and the conflicting accounts of Musk’s authority have led to mixed outcomes for constitutional challenges to DOGE in court. While critics have sometimes succeeded in temporarily blocking further cuts to programs like USAID, other efforts have faltered. Much of this legal uncertainty stems from the ambiguity surrounding Musk’s role within the agency and the broader question of DOGE’s classification as a government entity. Stanford Law Professor Mark Lemley notes, “There is a Schrödinger’s cat nature to this entity. It is a government entity when we want it to be and not a government entity otherwise” (Lemley 2025). This incongruity will likely come up in many of the legal disputes DOGE faces. However, in federal court, the White House has maintained that Musk is not, in fact, a formal part of DOGE.

Privacy Issues

The other key legal challenge to DOGE hinges on two, rather outdated, privacy laws—the Privacy Act of 1974 and the E-Government Act of 2002 (Sabin 2025). The Privacy Act came shortly after the Watergate scandal. It governs how agencies can use and share information they have on individuals. The law forbids agencies from freely sharing information about individuals throughout the government unless the reason for sharing that information meets a specified set of exceptions (Lemley 2025). Part of DOGE’s efforts rely on gathering this information, on past and present government employees, from the Office of Personnel Management (OPM). DOGE demanded access to this information from OPM, which includes social security numbers, age, gender identity, and a variety of other information (Lemly 2025). Once they obtained it, they used the information to send mass emails that sent termination notices and offered buyouts—this is the centerpiece of another lawsuit. They also shared this information across unsecured channels and mistakenly gave a “25-year-old DOGE staffer… temporary access to make changes to a federal payment system” (Chow 2025). Some of this information contained veterans’ bank account information, credit card numbers, and the identities of CIA agents whose lives sometimes depend on keeping this information private (Chow 2025; Lemley 2025). 

These actions have led to a series of lawsuits and complaints, and have led some cybersecurity experts to declare it as one of the worst data breaches in US history (Chow 2025; Lemley 2025). And so, the center of these lawsuits hinges on the idea that DOGE did not have a legitimate claim to access this information from OPM in the first place, and once they did access it, they used it in reckless ways. 

These lawsuits have similarly had varying degrees of success. One District, appointed by President Obama, Judge Randolph Moss, wrote “It is not the job of the federal courts to police the security of the information systems in the executive branch” (Whitehurst et al., 2025) Of the multiple lawsuits on DOGE, some have resulted in temporary stays on it’s data access (Sabin 2025). Others have had less success; laws like the Privacy Act came long before the computer systems we have today, and having not been frequently challenged, there is little precedent to say how they will apply in these cases. And, because these legal questions are unsettled, resolution will ultimately rest with the judiciary.

References

Bhatia, Aatish, Josh Katz, Margot Sanger-katz, and Ethan Singer. 2025. “Doge Claimed It Saved $8 Billion in One Contract. It Was Actually $8 Million.” The New York Times. https://www.nytimes.com/2025/02/18/upshot/doge-contracts-musk-trump.html (April 14, 2025).

Chow, Andrew R. 2025. “Elon Musk’s Doge Poses Cybersecurity Risks, Experts Say.” Time. https://time.com/7268032/doge-cybersecurity-elon-musk/ (April 14, 2025).

Cohen, Matt. 2025. “The Legal Challenges to Elon Musk’s Doge, Explained.” Democracy Docket. https://www.democracydocket.com/analysis/the-legal-challenges-to-elon-musks-doge-explained/ (April 14, 2025).

Enrich, David. 2025. “Trump’s Not-so-Subtle Purpose in Fighting Big Law Firms – The New York Times.” The New York Times. https://www.nytimes.com/2025/03/29/business/trump-law-firms-lawsuits.html (April 14, 2025).

Lemley, Mark A., and Pam Karlan. 2025. “Suing Doge: Musk, Trump, and an Imperial Presidency.” Stanford Law School. https://law.stanford.edu/2025/02/25/suing-doge-musk-and-trump/ (April 14, 2025).

NG, Alfred. 2025. “The Law Everyone Is Suddenly Turning to Because of Doge – Politico.” Politico. https://www.politico.com/news/2025/03/06/doge-musk-court-privacy-sensitive-data-00211749 (April 14, 2025).

Pereira, Ivan, and Emily Chang. 2025. “Here Are All the Agencies That Elon Musk and DOGE Have Been Trying to Dismantle so Far.” ABC News. https://abcnews.go.com/Politics/elon-musks-government-dismantling-fight-stop/story?id=118576033 (April 14, 2025).

Poon, Michael. 2025. “Is Doge Unconstitutional? Let’s Dive In…” Pacific Legal Foundation. https://pacificlegal.org/is-doge-unconstitutional-lets-dive-in/ (April 14, 2025).

Reid, Tim. 2025. “Explainer: What Is Musk’s Doge, the Secretive Unit Operating in the Public Eye? | Reuters.” Reuters. https://www.reuters.com/world/us/what-is-elon-musks-doge-how-much-money-has-it-saved-us-taxpayers-2025-03-04/ (April 14, 2025).

Sabin, Sam. 2025. “Lawsuits against Elon Musk, Doge’s Data Access Hinge on Outdated Laws, Experts Say.” Axios. https://www.axios.com/2025/02/18/doge-elon-musk-privacy-laws (April 14, 2025).

Sneed, Tierney. 2025. “Is Doge Actually an Agency? The Answer Could Have Major Ramifications | CNN Politics.” CNN. https://www.cnn.com/2025/03/30/politics/doge-lawsuits-elon-musk-role/index.html (April 14, 2025).

White House, The. 2025. “Establishing and Implementing the President’s ‘Department of Government Efficiency.’” The White House. https://www.whitehouse.gov/presidential-actions/2025/01/establishing-and-implementing-the-presidents-department-of-government-efficiency/ (April 14, 2025).

Whitehurst, Lindsay, Chris Megerian, and Michael Kunzelman. 2025. “Doge Notches Courtroom Wins as Elon Musk Crusades to Slash Federal Government.” AP News. https://apnews.com/article/elon-musk-donald-trump-doge-legal-victories-faf05e6c80a488fe01edbccccd9207e8 (April 14, 2025).