Since its creation at the very beginning of the second Trump administration, the Department of Government Efficiency (DOGE) has upended the federal government, laying off workers, canceling contracts and effectively shuttering entire agencies. DOGE’s flurry of activity has been met by a wide range of legal challenges which continue to work their way through the courts. In the meantime, the public continues to ask: is DOGE allowed to do that? This analysis aims to answer that question, evaluating the legality (or lack thereof) of many of DOGE’s highest-profile actions.

Can DOGE offer buyouts to federal employees?

Not directly. It could support other agencies in offering buyouts to their own employees, or obtain specific authorization from Congress to offer government-wide buyouts – but DOGE does not appear to have done either here.

Existing law does generally allow individual agencies to offer voluntary buyouts pursuant to detailed plans which must be approved by the Office of Personnel Management (OPM). But the Fork Directive does not comply with those standards: the offer is government-wide rather than agency specific, and was sent by OPM itself, reportedly under the control of DOGE, rather than by individual agencies pursuant to OPM approval.

Alternatively, Congress could grant DOGE specific, limited authority to offer government-wide buyouts. In the mid-1990s, for example, Congress passed the Federal Workforce Restructuring Act, which explicitly allowed the Clinton administration to offer buyouts to federal employees over an approximately one-year period from 1994-1995. The Act established procedures for offering and executing buyouts, established the limited timeframe during which buyouts could be offered, and appropriated funds for those buyouts. By contrast, the “Fork in the Road” buyout offer (Fork Directive) was not specifically authorized by Congress, nor were specific funds appropriated for that purpose.

By failing to comply with existing statutory requirements or obtain specific congressional authorization, the Fork Directive is likely illegal in several respects. It may violate the Antideficiency Act, which prevents agencies from spending or obligating money that hasn’t been appropriated by Congress, since the Fork Directive promised to pay those who accepted the offer through September 2025, while Congress had at that point only authorized funding for the government through March 2025. It may also be “arbitrary” and “capricious” under the Administrative Procedure Act (APA), and therefore unlawful, for several reasons, including that the executive branch did not properly consider important aspects and implications of the Fork Directive. Finally, by contravening the general statutory scheme described above and in the absence of specific legislative authorization, the Fork Directive may violate the provision of the APA which prohibits agency action “in excess of statutory jurisdiction.” 

Unions representing federal employees filed lawsuits challenging the Fork Directive under these and other theories. Those lawsuits were dismissed by judges on procedural grounds (e.g.  plaintiffs’ lack of standing and failure to exhaust administrative remedies), meaning that courts have not yet reached a final decision based on the specific facts of those cases.

Can DOGE defund (or completely shut down) a federal agency? 

No – those powers belong to Congress. 

The Constitution gives Congress, not the executive branch, the power to appropriate funds, and the Impoundment Control Act (ICA) generally requires the executive branch to spend the money which Congress has appropriated. Though the ICA does create a mechanism by which the president can propose a deferral or rescission of funds, it does not allow the executive branch to unilaterally cancel spending, or to delay spending for mere policy reasons. When Congress enacts a law to fund a given program, the executive branch is obligated to use those funds to operate that program. Consequently, when Congress has enacted a law to fund an agency and its operations, the executive branch must use that money to fund the agency and its operations. DOGE’s attempts to unilaterally withhold money that has been appropriated by Congress to support affordable housing, education, environmental protection or other initiatives violate these bedrock constitutional principles. That’s precisely why multiple federal judges have blocked the Trump administration’s effort to unilaterally freeze funding.

Similarly, the power to create and destroy agencies rests with Congress, not the executive branch. The Supreme Court in Myers v. United States was very clear on this point when it said “[t]o Congress under its legislative power is given the establishment of offices … [and] the determination of their functions and jurisdiction.” By contrast, the executive branch is constitutionally required to “take Care” that an agency Congress has created comes into existence and carries out its statutory functions. Just as the executive branch must spend the money that Congress has appropriated, so too must it fulfill the statutory obligations Congress has established and operate the agencies that Congress has created. Accordingly, the executive branch cannot unilaterally decide to shutter an agency; only Congress can destroy an agency it has created. 

DOGE’s efforts to shutter USAID and the Consumer Financial Protection Bureau were found by judges to be likely unconstitutional, while a legal challenge to DOGE’s attempted dismantling of the Education Department is ongoing.

Can DOGE fire federal employees?

No – only agencies can fire their employees, not DOGE. And agencies themselves can only do so under limited circumstances, which are not in place here, and by following certain procedures, which the government has not followed as it has terminated tens of thousands of primarily probationary employees. Federal employees have benefited from a growing number of legal protections from improper dismissal since the merit-based civil service was first established in 1883, and though probationary employees do not enjoy the same level of protection as their longer-tenured colleagues, they are nonetheless protected from unjustified terminations. 

First, DOGE has no authority to fire employees of other agencies, as the White House itself has conceded. Neither does the Office of Personnel Management (OPM), which is reportedly under DOGE control. That’s why OPM’s instruction to other agencies to identify their probationary employees and terminate them en masse was, as a federal judge recently held, unlawful.

Even if the firings of probationary employees had been directed by individual agencies themselves, rather than DOGE and OPM, the manner in which the dismissals were executed would still have been unlawful. The probationary period exists to allow agencies to determine whether new employees possess the “fitness” and “qualifications” for federal employment. To that end, existing law provides for two circumstances under which agencies may terminate probationary employees: based on “inadequacies of [their] performance or conduct,” or due to “conditions arising before [their] appointment.” But neither of those circumstances was present to justify the Trump administration’s mass firing of probationary employees across the federal government. The Trump administration has not articulated any “conditions arising before [their] appointment” which would justify the terminations, and the government’s claim that the firings were performance based is made highly implausible by the fact that the administration ordered mass firings, rather than conducting case-by-case evaluations.

Alternatively, agencies can lay off workers by instituting a Reduction In Force (RIF). An agency instituting a RIF must follow specific procedures: it must group similarly situated employees based on their geographical location, organizational unit, pay schedule and other factors; compare those employees based on tenure of employment, veteran preference, performance and length of service; then must follow procedural requirements to terminate employees with the lowest “retention standing.” As above, the Trump administration did not follow any of these procedures.

Multiple federal judges have ordered the Trump administration to reinstate thousands of dismissed federal workers.

Can DOGE legally access Americans’ private data?

Not exactly. DOGE itself certainly is not legally authorized to access Americans’ private data, and DOGE associates who work within agencies are likely also legally prohibited from doing so. Even if DOGE-affiliated agency staff can legally access that data, they are severely restricted in how they can legally do so, and in what they can legally do with it. But the access already granted to DOGE employees and associates, even in “read-only” form, creates a heightened risk that those restrictions could be violated.

The Privacy Act of 1974 creates a framework for the government’s collection and protection of Americans’ personal identifiable information (PII). Additional protections include, but are not limited to, protecting information that is given to an agency for statistical purposes under a pledge of confidentiality and information supplied on tax returns. These statutes make PII generally confidential, usable and accessible only by the agency which collected the data and only for the purposes for which it was collected. 

The Privacy Act does allow for disclosure of PII “to those officers and employees of the agency which maintains the record who have a need for the record in the performance of their duties.” Under this exception, it is clear that an employee of only DOGE itself is not permitted access protected PII, since that DOGE staffer would not be an “employee of the agency which maintains the record.” DOGE associates who are formally employed by federal agencies, rather than (or in addition to) DOGE itself, might argue that they “have a need for the [PII] in the performance of their duties.” But courts should be skeptical of that argument: DOGE associates do not need access to taxpayers’ names, addresses, or Social Security numbers to review agency contracts and payments.

Even if DOGE associates are permitted to access PII, the Privacy Act nonetheless prohibits them from using that PII for purposes other than those for which the data was collected. That law also prohibits anyone with lawful access from disseminating or transferring PII outside of the agency, including to other executive branch employees, individuals employed by DOGE itself or onto private computer servers. And information derived from tax returns, as well as the returns themselves, are protected by even more stringent restrictions. Thus, DOGE employees and associates almost assuredly lack legal authority to access payment systems at the Department of the Treasury’s Bureau of the Fiscal Service, which include sensitive taxpayer data. Access to anonymized IRS data may also violate tax return protections.

Elon Musk and some other DOGE employees and associates were hired as special government employees (SGE). What is an SGE? What rules apply?

An SGE is an individual who is hired on a temporary or intermittent basis to work for the federal government, typically to provide issue-specific expertise or to serve on federal advisory committees. SGEs are allowed to work a maximum of 130 days within a 365-day period, but in the absence of a mechanism to enforce that limit, it is conceivable that Musk and others may continue to work beyond the 130-day limit, as Anita Dunn reportedly did in the Biden administration. An individual who is classified as an SGE “based on a good faith estimate” but then “unexpectedly” works for more than 130 days can remain an SGE for the remainder of that year.

SGEs can avoid compliance with anti-corruption and transparency rules that would otherwise apply to full-time government employees. SGEs are only required to make public financial disclosures if they are paid above the GS-15 pay scale; Musk is reportedly not receiving a salary for his work, and therefore he will not make a public disclosure. Though SGEs are generally prohibited from working on matters in which they or their family members have a direct financial interest, they may receive a waiver excusing them from those restrictions. (It is unclear if Musk has received a waiver, though the White House has stated that Musk would police his own conflicts– a troubling arrangement which will likely shield him from meaningful public and legal scrutiny on this subject.) And they are subject to the Hatch Act, which restricts the political activities of federal employees, but only while they are on duty, whereas full-time employees are subject to several Hatch Act restrictions even while off-duty.

The SGE classification is intended to give the legislative branch, executive branch and independent federal agencies flexibility to obtain issue-specific services or expertise on a temporary or intermittent basis. The Trump administration has exploited this loophole by hiring Elon Musk and others as SGEs, subjecting them to weaker ethics and transparency requirements while he nonetheless wields immense power over a wide swath of the executive branch on a seemingly full-time basis. And with no enforcement mechanism to remove SGEs who serve for more than 130 days, it wouldn’t be a surprise to see Musk remain in this role for longer than what is legally allowed.

Is Elon Musk the administrator of DOGE?

Regardless of what the White House says on paper and in court, Musk appears to be serving in a role equivalent to that of the DOGE administrator, as President Trump himself has acknowledged. The White House has publicly named Amy Gleason, a health care technologist who previously worked at the U.S. Digital Service (DOGE’s predecessor entity), as DOGE’s Acting Administrator, but her title appears to be in name only, with Musk exercising leadership authority instead. One notable consequence of Musk’s informal role is that he is not subject to the mandatory public financial disclosure requirements which are imposed on Schedule C federal employees, which is how the U.S. Digital Service Administrator position (predecessor to the DOGE Administrator) was categorized.

What transparency laws does DOGE have to follow?

At a minimum, DOGE must follow the Freedom of Information Act (FOIA) and the Federal Records Act (FRA). CREW sued DOGE to make the agency comply with those laws– and won a preliminary injunction forcing DOGE to start disclosing documents under FOIA.

FOIA requires federal agencies to release requested records to the public. It is a vital tool to “ensure an informed citizenry” that holds the government accountable. A unit in the Executive Office of the President (EOP), such as DOGE, is considered an agency subject to FOIA if the entity has “wielded substantial authority independently of the President.” 

The FRA establishes guidelines for the creation, management and preservation of agency records, helping to ensure that agency activity is documented for the benefit of the public. EOP units are subject to the FRA unless the entity’s “function is to advise and assist the President,” rather than to exercise independent authority. As a result, the analysis under FOIA and the FRA are similar: if an EOP unit exercises substantial independent authority, it is subject to both laws.

Public reporting has made clear that DOGE, which has also been apportioned over $41 million in public funds, is wielding significant independent authority across the executive branch. It has seemingly unilaterally canceled contracts across the federal government, taken over and shut down agencies like the Consumer Financial Protection Bureau and gained access to the government’s payment system. A public federal entity wielding immense power in secret with such enormous consequence to the American people is exactly what FOIA was designed to prevent. 

Have a question about DOGE? Let us know at [email protected], and we’ll try to answer it in a future update.

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