Is DOGE Constitutional? Elon Musk's 'Chainsaw for Bureaucracy' Under Scrutiny

WASHINGTON, D.C. - The first two months of President Trump's second term have been filled with executive orders but perhaps none more controversial than the one creating DOGE: the Department of Government Efficiency. Elon Musk's, "chainsaw for bureaucracy" is under the microscope daily. 

It's been clear from the get-go that Trump has tasked Musk and his DOGE team to "go big" when it comes to cutting waste in the federal bureaucracy.  What's not so clear is whether the DOGE methods and results are constitutional. "This is a constitutional crisis," exclaimed Independent Senator Angus King from Maine. "This is the most serious assault on our Constitution in the history of this country." 

Much of the legal wrangling centers on Musk: is he simply an advisor to the president or does he have true authority to make decisions and use that figurative chainsaw? "This is an issue I think that is very political at the outset," says Jenna Ellis, senior policy advisor with the American Family Association. "But when it gets to the court, it should be purely legal, and that is going to turn on how much actual authority Elon Musk has, or is he only in an advisory role?" 

If Musk has been granted that decision-making power, then DOGE may run afoul of the U.S. Constitution's Appointments Clause,  which states that when a president wants to delegate authority, such as for a cabinet secretary, that person must be confirmed by the U.S. Senate. 

"The problem with DOGE is it seems to purport, according to Musk and the president, to be up to a much bigger project about restructuring the government, eliminating agencies, feeding them into the woodchipper, as Elon Musk has said," says Gregg Nunziata with the Society for the Rule of Law. "If that is what it's doing, it runs into significant constitutional problems." 

So, is DOGE solely an advisory group or is it more than that? Constitutional lawyer Krisanne Hall, Chief Counsel for Liberty First Legal explains why it feels murky. "I think a great deal of the confusion comes from the name because it's called the 'department of' but it is not actually a department," Hall tells CBN News. "Departments are limited by the Constitution, and they must be created by Congress." 

That leads to the crux of the issue. "The question then becomes, how is this informal advisory committee operating," Hall says. "Is it actually executing authority? Is it making decisions outside the presidential pen? If that's the case, then the courts are going to have to side with the Constitution that this is now operating like a department and not an informal advisory committee, and it's exceeding its authority." 

Questions of who's signing off on all of this and the corresponding chain of command are questions that need to be answered. "Well, they absolutely must get answered," Hall says. 

The White House sees this as all legally kosher and that critics, including the media, need a history lesson. "Many people in this room who have used this talking point that Elon is not elected fail to understand how government works, so I'm glad for the opportunity for a brief civics lesson," Stephen Miller, Deputy White House Chief of Staff recently said from the White House podium. "The Constitution, Article 2, has a clause, known as the vesting clause, and it says, 'the executive power shall be vested in a president,' singular.  The whole will of democracy is imbued into the elected president. That president then appoints staff to then impose that democratic will onto the government." 

Constitutional critics, however, still argue the White House can't even create DOGE without congressional approval, but the administration labels DOGE as temporary and the reorganization of an already existing unit within the executive branch called the United States Digital Service.  President Obama created it a decade ago to provide tech improvements to websites of federal agencies.  Under the DOGE umbrella, the unit's mission is different and more expansive. 

In interviews, Musk often implies his team has authority, telling Fox News's Sean Hannity, "One of the biggest functions of the DOGE team is making sure that the presidential executive orders are actually carried out." On other occasions, however he sounds like an advisor. "What we do is in consultation with the cabinet secretaries and the other departments," Musk recently told Larry Kudlow on Fox News. 

As for President Trump's view, he wants cabinet secretaries to make the cuts, but there's a string attached. "Elon and the group are going to be watching them," the president recently said from the Oval Office. "And if they can cut, it's better and if they don't cut, then Elon will do the cutting." That sort of "off the cuff" presidential language could be problematic in court.

"He's not a very specific communicator and he enjoys speaking in hyperbole which ends up creating confusion," Krisanne Hall tells CBN News. And then there's the paper trail issue. "We have a little saying in the legal field, that if it's not in writing, it didn't happen," Hall says. This month a federal judge ordered DOGE to release internal records to show its operating procedures and if they're going through proper channels. "Every check that's made, every cut that's made, every decision that's made, must be followed with a paper trail all the way back to the president," says Hall. 

So where might all of this leave DOGE? "I think it's too soon to tell what any potential district court forum selection might determine," Jenna Ellis tells CBN News. "But I think ultimately, if and when this gets up to the U.S. Supreme Court, I think DOGE itself is fine. It'll be more of an independent case by case basis." 

For example, just this week, U.S. District Judge Theodore Chuang ruled that the dismantling of USAID by Musk and DOGE was unconstitutional. All of these types of cases could lead to constitutional fights over the appointments clause, the vesting clause, privacy matters and separation of powers. DOGE's current reach crosses into a large number of constitutional areas and it very well could lead to the U.S. Supreme court having the final say.   

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