The second term of the Trump Administration is rapidly testing the boundaries of executive authority. While many of Trump’s supporters are enthusiastically backing his moves, legal experts are sounding the alarm about a potential constitutional crisis. Several actions taken by the President are generating significant legal and constitutional challenges that might take years to sort out.
During his first presidency, Trump had frequent confrontations with both the judiciary and Congress, facing accusations of overstepping his executive powers. Now, he seems ready to adopt an even more aggressive strategy. His latest proposals—aimed at eroding the independence of federal agencies, allowing private access to sensitive government information, and suggesting unprecedented buyouts for federal workers—have already ignited legal disputes and intense discussions regarding the limits of presidential power.
Let’s delve into how Trump’s current initiatives are testing legal boundaries and identify which specific statutes experts believe his Administration may be contravening.
Dismantling USAID
The U.S. Agency for International Development (USAID) faces an uncertain future as Trump, with support from Elon Musk, has suggested plans to effectively eliminate the agency’s independence by folding it under the State Department.
USAID, established as a vital element of U.S. foreign policy, provides humanitarian aid, advances global health efforts, and nurtures democratic governance in some of the world’s most volatile regions. The agency allocates billions in aid annually, addressing crises ranging from natural disasters to health emergencies. Supporters argue that its work across more than 120 nations has reduced suffering and built long-term relationships that enhance U.S. national security. Nonetheless, USAID has increasingly become a target for Trump’s broader agenda to slash federal programs he views as ineffective or wasteful. He has publicly 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 decide” on its future.
Can Trump do this?
Legal analysts argue that Trump lacks the constitutional authority to abolish USAID without Congress’s approval. Though the agency was initially established by an executive order from President John F. Kennedy in 1961, it was formalized as a distinct entity by Congress in 1998. This distinction suggests that Congress retains the ultimate authority to dismantle the agency or permit its integration into the State Department, as proposed by Secretary of State Marco Rubio. “The President cannot constitutionally ignore a statute that creates a department or agency,” explains Saikrishna Prakash, a law professor at the University of Virginia.
The independent status of USAID was further solidified by the Foreign Affairs Reform and Restructuring Act of 1998, which restricts the president’s ability to unilaterally eliminate the agency, according to Nick Bednar, a law professor at the University of Minnesota. Any attempt to dissolve USAID, he argues, would necessitate new legislation from Congress. “The Clinton Administration ensured USAID’s independence,” he adds, “and the authority to reorganize it has now expired. The President cannot reorganize USAID at this time.”
Prakash noted that while Trump could decide not to allocate the agency’s foreign aid funds, this action would likely violate the Impoundment Control Act of 1974, which mandates presidential approval to withhold discretionary spending. This could 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 Thomas Jefferson’s decision to halt funding for gunboats on the Mississippi River, Prakash points out.
He also mentioned that the Trump Administration could seek congressional support for legislation to dissolve USAID, though garnering the backing of 60 senators to overcome a likely filibuster would be a steep challenge.
This past Monday, Democrats gathered outside USAID’s office after employees received instructions to work remotely. Rep. Don Beyer, who represents a district in Northern Virginia with a large federal workforce, stated that the law is clear, asserting, “What Trump and Musk have done is not only wrong; it is illegal.”
“USAID was created by an act of Congress and can only be dissolved by an act of Congress,” he added.
Granting Elon Musk’s DOGE Access to Sensitive Data
Shortly after taking office, Treasury Secretary Scott Bessent provided 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 encompass more than just federal transactions; they include a highly sensitive infrastructure that manages critical financial transactions, containing personal information from taxpayers, beneficiaries of federal programs, and contractors, raising alarms about potential data misuse or mishandling.
While proponents argue that Musk’s team needs access to this data to identify inefficiencies and reduce government spending, critics express concern about the implications of allowing a billionaire—whose companies, including Tesla and SpaceX, hold significant government contracts—access to such sensitive information. Some have even raised questions about whether Musk’s oversight could be used to politically manipulate or withhold payments, particularly given his known efforts to cut federal spending and his personal business interests in government contracts.
Is this permissible for Trump?
Legal experts argue that granting Musk and his team access to sensitive government information may breach several federal laws, including the Privacy Act of 1974, the Federal Information Security Modernization Act (FISMA), and the Computer Fraud and Abuse Act (CFAA), as well as strict taxpayer privacy protections under the Internal Revenue Code.
Alan Butler, an attorney and executive director of the Electronic Privacy Information Center, contends that DOGE’s access could represent a significant violation of the Privacy Act, which forbids unauthorized disclosures of personal information. “It’s clear that DOGE has more than mere access,” Butler states, referencing Musk’s recent posts on X that revealed specific payment records from private organizations, including Lutheran groups. “Data from those systems is being extracted and disclosed outside of the Treasury Department, which is a clear breach of the Privacy Act. You’re taking personal information and exposing it in unauthorized ways.”
The decision to provide Musk’s DOGE access to sensitive information has led to a lawsuit from two major federal employee unions, claiming that the Trump Administration violated the Privacy Act of 1974.
Legal experts also point to potential infractions of FISMA, which mandates strict security protocols for federal IT systems, and the CFAA, which penalizes unauthorized access to government networks. Butler noted that violations of the CFAA can result in severe penalties and suggested that a special prosecutor may be required to investigate potential criminal activities.
Perhaps most alarming is DOGE’s potential access to tax return information, which is stringently protected under Section 6103 of the Internal Revenue Code. The Treasury’s payment system manages tax refunds, implying that DOGE personnel could potentially gain access to sensitive financial data. “Every American filing taxes right now has their payments processed by this system,” Butler warned. “Tax return information is among the most protected data under federal law… Even the President cannot broadly authorize access to tax return information.”
These strict protections were reinforced after the Nixon Administration misused tax records to target political opponents. Under current regulations, only senior executive officials with a legitimate need for the data may access it, and even then, only in limited circumstances. “Even when the President is vetting a judicial nominee, the executive branch has restricted access to tax return data,” Butler explained. “The idea that we’re giving access to someone without the proper credentials or clearance is absurd.”
In 2013, a breach of the Office of Personnel Management (OPM) database, attributed to hackers from China, raised fears that the information could be exploited for espionage against federal employees. According to Butler, “that was minor compared to what we’re facing now,” with DOGE possibly having access to Treasury data. “Espionage and foreign intelligence activities occur regularly,” he noted. It remains uncertain whether Musk or others at DOGE possess the necessary security clearance for the records they are accessing. If they do have clearance, it is unclear if they underwent the same extensive vetting typically required. “There is national-security-sensitive information in those systems, and you’re providing it to individuals who lack clearance, training, and proper authorization,” Butler cautioned.
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 need White House permission. “If there was something that didn’t have my OK, I’d let you know about it very quickly,” he stated.
Trump’s Federal Buyout Proposal
On January 28, millions of federal workers received an unexpected email from the Office of Personnel Management (OPM) offering them the chance to resign by February 6 in return for eight months of pay and benefits. Those who opted not to resign would be required to return to the office full-time.
Trump has positioned this offer as a strategy to “streamline and enhance the government’s efficiency.” However, the specifics of the proposal have raised considerable legal and political concerns, with some unions and prominent Democrats advising federal employees against accepting it. Bloomberg reported that, according to an unnamed source, over 20,000 employees have accepted the offer thus far.
Is this permissible for Trump?
Legal and governmental experts have raised multiple concerns regarding the legality of OPM’s buyout offer. Some assert that it may infringe upon the Anti-Deficiency Act, a law that prevents the government from spending more than what Congress has appropriated, as well as the Administrative Leave Act.
It remains unclear whether such a sweeping federal buyout that promises payments eight months in advance can be legally executed, especially with the federal government’s funding set to expire in mid-March. Bednar, the University of Minnesota law professor, highlights that the primary issue revolves around the Anti-Deficiency Act, which strictly limits the government’s ability to engage in financial commitments that exceed congressional appropriations.
The Trump Administration asserts that the offer will not guarantee payments beyond the current appropriations period. However, Bednar warns that the program’s framework 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 represent a clear violation.”
Another legal concern is related to the Administrative Leave Act of 2016, which places strict limits on how federal employees may be placed on leave. This law aims to prevent agencies from sidelining workers for extended periods without adequate justification. Bednar argues that the deferred resignation program, which effectively places employees on leave while still compensating them, may also conflict with this statute. “If we’re discussing placing employees on leave for eight months, this program seems to violate that act,” he asserts. “Though regulations introduced during the Biden Administration limit 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 proposal becomes even more convoluted with the upcoming expiration of current funding in March. OPM has sought to alleviate concerns by clarifying that any worker who opts to leave under the deferred resignation program would still receive back pay, as outlined by the Government Employee Fair Treatment Act. However, employees remain confused about whether their positions will be exempt from the resignation offer, with vague exclusions for certain categories of workers, particularly those involved in national security and immigration enforcement.
This uncertainty 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.
