Early Legal Challenges Against DOGE Could Be Undercut by Trump’s Move To Make It an Executive Agency

President Trump’s highly anticipated Department of Government Efficiency is facing at least three lawsuits already that argue its creation violates federal law. However, the executive order establishing the panel may nullify those legal challenges. Mr. Trump announced DOGE in November and said it would be an outside advisory board led by billionaire Elon Musk. The panel’s mission is to slash $2 trillion from the federal budget and “drive large-scale structural reform” in the government. DOGE was initially envisioned as an outside advisory board, which would allow for its creation without Congressional approval. It would also allow Mr. Musk and his aides to operate outside the government and avoid certain requirements for federal employees, such as having to divest from their holdings related to their work and other transparency requirements. Potential problems for DOGE cropped up just minutes after the 47th president was sworn into office. It appeared at first that the panel could face trouble even getting started, as outside groups filed three lawsuits challenging the legal groundwork for its foundation. The legal challenges said that as an outside advisory board, DOGE is subject to the 1972 Federal Advisory Committee Act, which governs such panels.The act lays out specific rules for outside advisory boards, such as requiring that they have open meetings and that their membership be balanced by members with different viewpoints. A lawsuit brought by the law firm National Security Counselors, filed before the order to create DOGE was even signed, says the panel is an advisory committee subject to FACA regulations. As such, the suit says the panel is violating the requirement to be “fairly balanced in terms of the points of view represented and the functions to be performed” because, as of the time of the suit, there were no known federal employees included.Mr. Musk is reportedly expected to receive an office in the Eisenhower Executive Office Building — not in the West Wing — for the DOGE staff. However, it was unclear if he would become a federal employee. The White House did not respond to The New York Sun’s request for comment on Mr. Musk’s status as a federal employee by the time of publication.Another lawsuit filed by the left-wing consumer watchdog group Public Citizen alleges DOGE violates a part of FACA that is designed to “prevent advisory boards” from “turning into vehicles for advancing private interests in the federal decision-making process.”However, the legal arguments in the lawsuits may not be applicable due to the way DOGE is currently organized. The executive order establishing DOGE, signed on Monday, clarifies that it will not be an outside advisory committee. Rather, an already existing agency in the Executive Office of the President, the United States Digital Service, will be renamed DOGE and take over its duties. The Digital Service was created by President Obama in 2014 with a mission of fixing the numerous issues plaguing HealthCare.gov. Mr. Trump’s executive order states that DOGE will “implement the President’s DOGE Agenda by modernizing Federal technology and software to maximize governmental efficiency and productivity.” The agency will also have an administrator who will report to the White House chief of staff, Susie Wiles. The executive order also states that DOGE will be a temporary agency, set to expire on July 4, 2026. It also does not mention a mission of slashing the federal budget or workforce, which could be an attempt to dodge complaints about a board without federal employees seeking to slash the number of federal officials. A doge.gov website has also been created. While the webpage does not have many details, it states it is “an official website of the United States government.”The decision to re-brand the old USDS as DOGE could defang the argument that it is an advisory committee subject to FACA rules. A conservative attorney who advised the Trump transition team, Mike Davis, wrote on X that the executive order establishing DOGE makes it clear that it is a federal agency not subject to FACA rules.“These are legally frivolous lawsuits by leftwing political activists. As the President’s executive order makes clear, DOGE is a government entity, housed in the Executive Office of the President and staffed by federal employees,” Mr. Davis wrote Wednesday. “The Federal Advisory Committee Act doesn’t apply. The Justice Department’s Civil Division, which is defending DOGE, should seek sanctions against these plaintiffs.”The order establishing the panel does not seem to be convincing the groups that filed legal challenges to change course. A spokesman for Public Citizen told The New York Sun, “From our perspective, the EO does not meaningfully change what had been reported. Apart from transforming the ‘USDS,’ it mostly codified elements of DOGE that had been reported or indicated — that it would be part of the White House complex, that it would deploy staff to agencies, etc.”“Based on what has been reported about the many people reported working outside government for DOGE and the nature of the recommendations that DOGE will make, DOGE appears to be a FACA committee,” the spokesman added.If DOGE withstands the legal challenges, it is still unclear how effective it will be in its mission to cut costs. Skeptics argue that true cost-cutting will require Congressional approval. However, some budget hawks suggest there is plenty of fat for DOGE and Mr. Trump to trim simply by reviewing and rescinding his predecessor’s executive actions.

Early Legal Challenges Against DOGE Could Be Undercut by Trump’s Move To Make It an Executive Agency

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