DOGE is unconstitutional
American democracy is bracing for some seismic shifts. President-elect Donald Trump ran on a platform that included mass deportations of immigrants, investigations and prosecutions of perceived political enemies and presidential pardons for those criminally convicted in connection with the riot and carnage of Jan. 6, 2021.
Since Trump left office, the Supreme Court has reshaped the core authority of the presidency by manufacturing immunity for presidents who commit crimes using the powers granted under Article II of the Constitution — including control of the military and federal law enforcement. Bear in mind that this massive enhancement of the “belt and suspenders” of the presidency would not have happened but for Trump and his behavior in trying to overturn the 2020 election.
As we approach Trump’s historic second term, at least two threats to the Constitution create new cause for concern.
The first is the mythological Department of Government Efficiency, or DOGE, with Elon Musk and Vivek Ramaswamy as its purported dual department “heads.” Although DOGE amounts to a pure legal fiction at the moment, Republicans in Congress and the mainstream media have been treating it as if it’s real, debating their plans to “slash federal spending by $2 trillion” in some detail. A number of GOP senators have already formed a “DOGE caucus,” which Sen. Joni Ernst (R-Iowa) characterizes as “‘bite’ to partner with the ‘bark’ of Trump administration’s Department of Government Efficiency.” After she boasted on X about making “the porkers squeal,” Musk praised her and “like-minded legislators” for their “excellent work” thus far.
But here’s the legal deal: It is Congress that creates federal agencies pursuant to its Article I legislative power — not presidents nor private citizens, even if they happen to be the president-elect. The Constitution doesn’t even mention federal agencies, with the exception of the Treasury. The panoply of “Departments of” and “Commissions” that dot Washington, D.C. are instead the work of federal legislation.
When Congress creates agencies, it gives them powers to enforce the law, to adjudicate the law and even to make laws, which are called “regulations.” Over the past century, there have been many lawsuits challenging the scope of federal agency powers and Congress’s prerogative to make agencies in the first place. The Supreme Court has repeatedly struck down portions of congressional statutes creating agencies on constitutional grounds. The core rationale is that the exercise of government power must in some way be tied to the ballot box.
Agencies are also bound by the Administrative Procedure Act, which allows litigants to sue federal agencies for overreach, as well as the Freedom of Information Act and numerous other federal laws designed to hold bureaucrats accountable to the rule of law and the voting public. The broad constitutional theory animating the existence of federal agencies is that the heads of agencies are appointed by the president and confirmed by the Senate, so those who populate their ranks are tangentially answerable to the people through their elected bosses.
To date, there is no law or even proposed federal legislation creating DOGE. Musk and Ramaswamy are not on track for any federal appointment, yet are already wielding power. Neither man was on the ballot anywhere in the country. Yet they are being treated as if they will fully and legitimately exercise federal power with no constitutional authority or accountability whatsoever.
Trump warmed up the public to this idea during his first term by putting his son-in-law, Jared Kushner, in charge of a COVID-19 task force during a pandemic that killed over 1 million Americans. Kushner was not even a federal employee, let alone vetted by the Senate. (He is reportedly on tap to play a “pivotal” role in the Middle East in the second Trump administration). Nobody really pushed back then, and those in power don’t seem to be pushing back now.
Bizarrely, most people seem to be pretending that this is normal. The fact that we are not having a collective conversation about the unprecedented and extra-constitutional notion of a de facto DOGE and the endowment of Musk and Ramaswamy with substantial governmental powers without being part of the actual government — all of it — is deeply disturbing and does not bode well for the integrity of the Constitution’s separation of powers and government by the people.
The second constitutional threat is that there have been rumblings for weeks about whether the 22nd Amendment authorizes a third term for presidents, meaning (presumably) for Trump. The very fact that this is being debated means that it is being endowed with a modicum of legitimacy. The dizzying gymnastics required to formulate a coherent constitutional argument for a third term are just that — legal gymnastics.
But let’s be crystal clear: The 22nd Amendment states on its face that “No person shall be elected to the office of the President more than twice.” Its term limit language was meant to limit presidential terms. For conservatives who claim to adhere to the plain language of the Constitution and eschew judicial activism, that should be the end of the matter.
And before Nov. 5, 2024, it was.
Both of these radical ideas are now swirling around not because they lie within the Constitution’s original design. They are being debated for one reason alone: Donald Trump. For millions of Americans, that might be cause for celebration. The American system of government is broken in myriad ways, so why not just blow it all up?
But “broken” implies that the damage can still be fixed. If Trump’s second term manages to put private parties in massive positions of power with zero legal or electoral accountability, and greenlights an end-run around a constitutional amendment designed specifically to rein in emperor-like stretches of power for individual presidents, it might be a place from which we cannot come back.
Kimberly Wehle is author of the new book “Pardon Power: How the Pardon System Works — and Why.”