The Department of Government Efficiency – the Trump administration’s cost-cutting agency, headed by billionaire business owner Elon Musk – has put hundreds of federal officials on leave, gained access to sensitive federal payment systems and led the charge to shutter federal agencies.
The pushback against DOGE, as it is called, has been swift, as legislators and the public ask whether Musk can downsize, restructure or eliminate agencies authorised and funded by Congress.
Senate Minority Leader Chuck Schumer, for New York, wrote on X on February 3: “An unelected shadow government is conducting a hostile takeover of the federal government. DOGE is not a real government agency. DOGE has no authority to make spending decisions. DOGE has no authority to shut programs down or to ignore federal law. DOGE’s conduct cannot be allowed to stand.”
An unelected shadow government is conducting a hostile takeover of the federal government.
DOGE is not a real government agency.
DOGE has no authority to make spending decisions.
DOGE has no authority to shut programs down or to ignore federal law.
DOGE’s conduct cannot be…— Chuck Schumer (@SenSchumer) February 3, 2025
At a news conference the following day, Schumer said the idea that DOGE is acting unlawfully “is not debatable. It is an indisputable fact.”
Officially, courts will decide whether that’s indisputable or not.
Because that hasn’t happened yet, we asked the White House what constitutional or statutory authority DOGE is operating under. The White House, in a statement, cited neither specific laws nor constitutional provisions. It said: “Those leading this mission with Elon Musk are doing so in full compliance with federal law, appropriate security clearances, and as employees of the relevant agencies, not as outside advisors or entities.”
Here, we take a closer look at Schumer’s statements about DOGE and its status and authority within the United States government.
Legal scholars and government operations experts said they see little in the Constitution or US law to support the executive branch acting alone to overturn what Congress has authorised and funded.
“This is a question that has a very clear answer: Congress and Congress alone has the authority to enact appropriations measures,” said Michael Gerhardt, a University of North Carolina law professor. “The president does not have unilateral authority to shut down an expenditure, or instrumentalities funded by Congress, without the authorisation of Congress.”
Is DOGE a real government agency?
DOGE isn’t a conventional government agency; those are typically created by Congress with a mission and a fixed amount of funding. By contrast, DOGE’s budget and staffing are largely a mystery.
The Trump administration established it by executive order on January 20, 2025.
The order said an administrator who reports to the White House chief of staff would head DOGE and that its operations would cease on July 4, 2026. The order also establishes “DOGE teams” of at least four people within each federal agency.
The White House has said Musk is a “special government employee”, a decades-old government category for someone who works 130 days or fewer during a year. Special government employees may be paid or unpaid – it’s unclear which of those categories Musk falls into – and must provide financial disclosures and abide by ethics rules, including not involving themselves in matters in which they have financial interests (Musk’s companies, including SpaceX and Tesla, have received at least $15.4bn in government contracts over the past decade, The New York Times reported.)
Does DOGE have authority to make spending decisions?
Legal experts we interviewed were dubious that it’s legal for DOGE to cut spending already appropriated by Congress and signed by the president.
One key obstacle to DOGE is the Constitution, specifically Article 1, which establishes Congress and empowers the legislative branch to appropriate funds. “No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law,” it says.
Beyond this, Congress has enacted, and presidents have signed, laws to reaffirm this principle. The 1974 Impoundment Control Act set up a detailed process for what a president could and could not do when disagreeing over whether to spend money that Congress had approved.
That law says if the executive branch wants to cancel spending, it must propose a cut, known as a “rescission”. Spending cannot be paused for more than 45 days as legislators consider the cuts.
There are “major issues with impounding funds that have been authorised and appropriated if they do not follow the Impoundment Control Act”, said Bill Hoagland, senior vice president of the Bipartisan Policy Center and formerly a longtime Republican Senate aide.
The Supreme Court in recent years has blocked the executive branch from overstepping its congressionally authorised authority, such as with President Joe Biden’s bid to forgive student loan debt.
“If Congress told a department or agency they could regulate, they can,” said Stetson University law professor Louis J Virelli III. “If Congress didn’t, then they can’t.”
Typically, the Office of Management and Budget and the Justice Department evaluate executive orders, following a procedure President John F Kennedy laid out in an executive order, said Steven Smith, an Arizona State University political scientist. “That process provides a review of proposed executive orders that includes their constitutionality and legality,” Smith said. But given the speed of Trump’s order about DOGE, which was signed the day he was sworn in, and the personnel flux within the federal government, Smith said he’s seen no sign that Trump has followed this longstanding, deliberative process.
Meanwhile, the Trump administration has claimed both the right to impound funds – that is, to refuse to spend congressionally approved money – and its reverse, legal experts said. By offering buyouts to millions of federal employees, with those who accept getting paid until September 30, the administration has pledged to pay money Congress hasn’t yet appropriated. Current federal funding runs out on March 14, but to promise a payment beyond that, “when there’s no legal basis, is illegal”, Virelli said.
Does DOGE have authority to shut down programmes or ignore federal law?
Legal experts also believe the same legal justification – the Constitution’s assignment of the power of the purse to Congress, and subsequent laws – would prevent DOGE from shuttering entire agencies.
Under existing laws, such as the Impoundment Control Act, “there are certainly instances in which a president could stop particular payments for particular reasons or for short periods,” said Frank O Bowman III, a University of Missouri law professor. “But it is absolutely clear that a president cannot constitutionally, unilaterally shut down an entire congressionally created agency and all its programmes.” Trump and his appointees are working to remove the US Agency for International Development (USAID)’s independent status by folding the agency into the State Department and pledging to lay off most of its employees, and Trump promised during his campaign to shutter the Education Department.
“The least sinister version of what the administration is doing is, ‘Let’s play this out in the courts and see if we can get approval through the courts.’” Virelli said. “If this ends up as a series of lawsuits where the administration attempts to expand their powers and the court sorts all out, that’s not outside the bounds of our constitutional democracy.”
But Musk and DOGE may be moving so fast that the judicial branch would have difficulty stopping them even if judges wanted to, legal experts said.
The administration could win if lower courts “do not make decisions fast enough”, said Chris Edelson, an American University assistant professor of government. It could also win if judges decide to overrule longstanding precedent, he said. “A Supreme Court that says presidents are immune to criminal prosecution for ‘official acts’” – as the current court did in 2024 – “may also decide that presidents don’t have to abide by other parts of the Constitution.”
Can Congress stop DOGE if it wants to? And will it?
Institutionally, Congress has the most to lose, experts agree. But it’s not helpless: Congress could pass a law blocking DOGE or at least some of its practices.
During President Richard Nixon’s Watergate scandal, as the Supreme Court moved strongly to constrain presidential power, “Congress backed the court up by moving to impeach him,” Edelson said. “I don’t see any evidence of the congressional Republican majorities doing that.”
For instance, Senator Thom Tillis, North Carolina, acknowledged that some of Musk’s actions could be unconstitutional, but “nobody should bellyache about that”, he told the news outlet NOTUS. “That runs afoul of the Constitution in the strictest sense … but it’s not uncommon for presidents to flex a little bit on where they can spend and where they can stop spending.”
David M Driesen, a Syracuse University law professor, said Tillis’s comparison is faulty.
“There is no precedent for withholding monies across the board because of broad policy disagreement with the law,” Driesen said. “That is a frontal attack on the legislative authority of Congress.”
If legislators don’t challenge DOGE, by passing new laws or going to court, they risk losing the powers Congress has held for two and a half centuries. Driesen and other legal experts said judges might consider the lack of congressional opposition as they decide cases on this question.
“That shouldn’t matter at all as a matter of constitutional law,” Bowman, the law professor, said. “But I suspect that for some judges, the silence might carry some weight.”
