The second term of the Trump Administration is rapidly testing the boundaries of executive authority. While many of Trump’s supporters enthusiastically back his choices, legal experts are voicing concerns over a potential constitutional crisis. Several actions by the President are raising significant legal and constitutional questions that could take years to settle.
During his first tenure, Trump often found himself at odds with both the judiciary and Congress, facing accusations of overstepping his executive powers. This time, he seems ready to adopt an even bolder stance. His recent proposals—targeting the disbandment of independent agencies, offering private access to sensitive governmental data, and suggesting unprecedented buyouts for federal employees—have ignited legal disputes and intense discussions about the limits of presidential power.
Let’s delve into how Trump’s latest initiatives are pushing legal boundaries and identify the specific laws that experts believe his Administration might be infringing upon.
The Future of USAID
The fate of the U.S. Agency for International Development (USAID) hangs in the balance as Trump, in collaboration with Elon Musk, has hinted at a plan to effectively dismantle the agency by stripping it of its independence and placing it under the State Department’s purview.
Founded as a crucial element of U.S. foreign policy, USAID provides humanitarian assistance, promotes global health initiatives, and supports democratic governance in some of the world’s most volatile regions. The agency allocates billions in aid each year to address crises ranging from natural disasters to health emergencies. Proponents argue that its work across over 120 nations has alleviated suffering and nurtured long-term relationships that enhance U.S. national security. However, in recent years, Trump has targeted USAID as part of his broader strategy to eliminate federal programs he views as ineffective or wasteful. He has criticized the agency for allegedly favoring globalism over American interests, declaring, “It’s been run by a bunch of radical lunatics, and we’re getting them out, and then we’ll make a decision” on its future.
Is Trump Justified in This Move?
Legal experts argue that Trump lacks the constitutional authority to abolish USAID without congressional approval. Although the agency was originally established by an executive order from President John F. Kennedy in 1961, it became a distinct government entity through congressional action in 1998. This distinction suggests that Congress holds the ultimate authority to eliminate the agency or permit its integration into the State Department, as proposed by Secretary of State Marco Rubio. “The President cannot constitutionally disregard a statute that establishes a department or agency,” explains Saikrishna Prakash, a law professor at the University of Virginia.
The independent status of USAID was further bolstered by the Foreign Affairs Reform and Restructuring Act of 1998, which restricts the President’s ability to unilaterally dissolve the agency, according to Nick Bednar, a law professor at the University of Minnesota. Any attempt to eliminate USAID, he argues, would require new legislation from Congress. “The Clinton Administration ensured USAID’s autonomy,” he adds, “and the authority to reorganize it has now lapsed. The President cannot reorganize USAID in this context.”
Prakash noted that while Trump could opt not to allocate the agency’s foreign aid funds, such a decision might conflict with the Impoundment Control Act of 1974, which mandates presidential approval to withhold discretionary spending. This could potentially lead to a Supreme Court case regarding the President’s authority to withhold funds appropriated by Congress. Trump’s legal team might argue that the “Constitution grants the President the right to impound funds,” referencing how Thomas Jefferson halted funding for gunboats on the Mississippi River, Prakash points out.
He also indicated that the Trump Administration might seek congressional support for legislation to dissolve USAID, although gaining the backing of 60 senators to overcome a probable filibuster would be a daunting task.
On Monday, Democrats rallied outside USAID’s office after employees were instructed to work remotely. Representative Don Beyer, from a district in Northern Virginia with a large population of federal workers, asserted that the law is unequivocal, stating, “What Trump and Musk have done is not just wrong; it is illegal.”
“USAID was created by an act of Congress and can only be dissolved by an act of Congress,” he emphasized.
Access for Elon Musk’s DOGE to Sensitive Information
Shortly after taking office, Treasury Secretary Scott Bessent granted Elon Musk and his Department of Government Efficiency (DOGE) team access to the federal payment system, which oversees over $5 trillion in annual federal disbursements, including Social Security, Medicare, and tax refunds.
However, the Treasury Department’s payment records include far more than just federal transactions; they comprise a highly sensitive infrastructure that manages critical transactions. This includes personal information from taxpayers, beneficiaries of federal programs, and contractors, raising concerns about the potential for misuse or mishandling of this data.
While supporters argue that Musk’s team needs this data to identify inefficiencies and reduce government spending, critics are worried about the implications of permitting a billionaire—whose companies, including Tesla and SpaceX, have significant government contracts—access to such sensitive information. Some have even questioned whether Musk’s oversight could be used to politically influence or withhold payments, especially given his known efforts to cut federal spending and his personal business interests related to government contracts.
Is Trump Authorized to Grant This Access?
Legal experts claim that providing Musk and his team access to sensitive government data might contravene several federal laws, including the Privacy Act of 1974, the Federal Information Security Modernization Act (FISMA), and the Computer Fraud and Abuse Act (CFAA), along with stringent taxpayer privacy protections under the Internal Revenue Code.
Alan Butler, a lawyer and executive director of the Electronic Privacy Information Center, contends that DOGE’s access could represent a serious breach of the Privacy Act, which forbids unauthorized disclosures of personal information. “It’s clear that DOGE has more than just access,” Butler states, referencing Musk’s recent posts on X that showcased specific payment records from private organizations, including Lutheran groups. “Data from those systems is being exfiltrated and disclosed outside of the Treasury Department, which constitutes a clear violation of the Privacy Act. You’re taking personal information and revealing it in unauthorized ways.”
The decision to grant Musk’s DOGE access to sensitive information has led to a lawsuit from two major federal employee unions, alleging that the Trump Administration breached the Privacy Act of 1974.
Legal experts also highlight potential infractions of FISMA, which mandates strict security protocols for federal IT systems, and CFAA, which penalizes unauthorized access to government networks. Butler noted that violations of the CFAA can lead to severe penalties and suggested that a special prosecutor may need to investigate the potential for criminal activity.
Perhaps most alarmingly, experts emphasize DOGE’s possible access to tax return information, which is strictly protected under Section 6103 of the Internal Revenue Code. The Treasury’s payment system processes tax refunds, meaning DOGE personnel could potentially gain access to sensitive financial data. “Every American filing taxes currently has their payments processed by this system,” Butler cautioned. “Tax return information is among the most safeguarded data in federal law… Even the President cannot broadly authorize access to tax return information.”
These stringent safeguards were reinforced after the Nixon Administration misused tax records to target political opponents. Current regulations permit access only to senior executive officials with a direct need for the data, and even then, only under limited conditions. “Even when the President is vetting a judicial nominee, the executive branch has only restricted access to tax return data,” Butler explained. “The idea that we’re allowing access to someone without credentials or clearance is absurd.”
In 2013, a breach of the Office of Personnel Management (OPM) database, attributed to hackers from China, heightened fears that information could be exploited for espionage against federal employees. Butler noted, “that was just the tip of the iceberg compared to the current situation,” with DOGE potentially accessing Treasury data. “Spying activities and foreign intelligence occur regularly,” he remarked. It remains unclear whether Musk or others at DOGE have the necessary security clearance for the records they are accessing. If they do have clearance, it is uncertain if they underwent the same thorough vetting typically required. “There is national-security-sensitive information in those systems, and you’re giving it to individuals who lack clearance, training, and the appropriate authorization,” Butler warned.
Trump assured reporters this week that Musk “can’t and won’t do anything without our approval,” emphasizing that any actions taken by Musk’s team would require White House consent. “If there was something that didn’t have my OK, I’d let you know about it really quickly,” he stated.
Federal Buyout Offer by Trump
On January 28, millions of federal employees received an unexpected email from the Office of Personnel Management (OPM), offering them the opportunity to resign by February 6 in exchange for eight months of pay and benefits. Employees who chose not to resign would be required to return to the office full-time.
Trump has positioned this offer as a way to “streamline and enhance government efficiency.” However, the specifics of the proposal have raised significant legal and political concerns, with some unions and prominent Democrats advising federal workers against accepting it. Bloomberg reported on Tuesday, citing an unnamed source, that over 20,000 employees have opted to take the offer thus far.
Is This Buyout Legally Sound?
Legal and governmental experts have raised numerous concerns regarding the legality of OPM’s buyout proposal. Some argue that it could violate the Anti-Deficiency Act, which prohibits the government from spending beyond the appropriations set by Congress, as well as the Administrative Leave Act.
It remains uncertain whether such a far-reaching federal buyout, promising payments eight months into the future, can be legally executed, especially as federal funding is scheduled to expire in mid-March. Bednar, the law professor from the University of Minnesota, points out that the central issue revolves around the Anti-Deficiency Act, which strictly limits the government’s ability to make financial commitments exceeding congressional appropriations.
The Trump Administration has insisted that the offer will not lead to guaranteed payments beyond the current appropriations period. However, Bednar emphasizes that the structure of the program could heighten the risk of incurring obligations beyond budgeted provisions, potentially breaching federal law. “The Anti-Deficiency Act states that agencies cannot enter into contracts for future payments without the necessary appropriations,” he cautions. “This could constitute a clear violation.”
Another legal concern pertains to the Administrative Leave Act of 2016, which imposes strict limits on how federal employees can be placed on leave. This law was implemented to prevent agencies from sidelining employees for extended periods without just cause. Bednar argues that the deferred resignation program, which effectively places employees on leave while still compensating them, may conflict with this statute. “If we’re discussing placing employees on leave for eight months, this program appears to violate that act,” he asserts. “Although there are regulations introduced during the Biden Administration that restrict this provision to investigative leave, the Congressional Record indicates Congress intended this to apply broadly to all forms of administrative leave.”
The situation surrounding the buyout program is further complicated by the looming expiration of current funding in March. OPM has attempted to ease concerns by clarifying that any worker who opts to leave under the deferred resignation program would still receive back pay, as stipulated by the Government Employee Fair Treatment Act. However, employees have expressed confusion about whether their positions will be exempt from the resignation offer, with vague exclusions for certain categories of workers, particularly those in national security and immigration enforcement.
This ambiguity has left many federal employees questioning whether they would actually receive the promised benefits if they choose to resign. Workers have until February 6 to make their decision regarding the offer.