Editor’s note: This three-part series on the legality of DOGE focuses on the past, present and future of the agency.
A president created an agency out of thin air with a mission to use high-tech tools to deliver a “better government experience.” Relying on a small team of tech experts, this agency would streamline, solve, and enhance efficiency. And shockingly, no Democrats in Congress had public meltdowns. No, this is not Donald Trump’s Department of Government Efficiency – or DOGE – but rather, President Barack Obama back in 2013 laying the groundwork for the United States Digital Service. If the former commander-in-chief’s venture at streamlining the federal government went unchallenged, why does Elon Musk’s pet project get a tough rap?
Legal/Illegal – It Depends What Is Is
The United States Digital Service (USDS) is more than just a precursor to DOGE; it is DOGE. In President Trump’s January 20 Executive Order, he (or his scribe) was very precise in the “creation” of this government efficiency project. His order stated:
“Sec. 3. DOGE Structure. (a) Reorganization and Renaming of the United States Digital Service. The United States Digital Service is hereby publicly renamed as the United States DOGE Service (USDS)”
As you can see, it even kept the initials. The agency has received funding from Congress and has, in its own words, partnered with more than “30 federal agencies” to deliver streamlined tech services across government. Indeed, in a self-congratulatory tenth anniversary post, USDS outlined some of the deliverables it has achieved during its decade-long existence.
“USDS has brought more than 700 top-tier technologists into government,” the post reads. More than 100 of these technologists went on to permanent positions across agencies. Further, the missive outlines the work it has done across multiple agencies with a specific focus on the work it has done to improve Social Security and the IRS.
DOGE is the same agency under a slightly different moniker, and as such, falls entirely in line with current laws. So, it is not the existence of DOGE that is at question – it was created by a former president and funded through Congress – but rather the parameters by which it is operating. And here, things get a little murkier.
In-House DOGE
As per the president’s order:
“In consultation with USDS, each Agency Head shall establish within their respective Agencies a DOGE Team of at least four employees, which may include Special Government Employees, hired or assigned within thirty days of the date of this Order. Agency Heads shall select the DOGE Team members in consultation with the USDS Administrator. Each DOGE Team will typically include one DOGE Team Lead, one engineer, one human resources specialist, and one attorney.”
This has been a bone of contention for Trump’s critics in Washington, DC, and the Fourth Estate. We have been granted endless column inches and soundbites decrying the fact that a band of young technologists have been setting up camp within agencies. To reiterate, this appears entirely within the law and consistent with what has been happening for the last ten years. So, where’s the beef?
Much of the political ire and fire is aimed at Elon Musk. Accusations range from him being the “shadow president” to not being authorized to oversee the USDS. However, a brief perusal of the agency’s history demonstrates that the critics perhaps protest too much.
A Leader by Any Other Name …
Matt Cutts, an uber wealthy Google tech pro was given the top spot at the agency under Barack Obama, a position he held until 2021. Notably, this position did not require Senate approval. His mission was, as he described it to his staff across the various agencies, to “go where the work is.” Translation: Find the problems, fix the problems.
The Washingtonian described a staff conference taking place in the USDS building just across from the White House, writing:
“That the scene is more Silicon Valley than West Wing is no accident. USDS was created in part to demonstrate how official Washington might look if it were run like a start-up. Its ranks are filled with people who, by government standards, might as well belong to an invasive species: software engineers, web designers, product managers, and other veterans of the technology industry. ‘A ragged band of 180 geeks,’ as Cutts puts it.”
The more things change, the more they stay the same. The Washingtonian’s description could well be detailing Elon Musk (the start-up king), and his team of tech disruptors. In fact, for anyone who cares to read just about any article written regarding the agency before the 2024 election, one might assume that – as Dragnet was wont to mention – “the names have been changed to protect the innocent.” What is different though, is the scope of what the USDS, now ubiquitously called DOGE, is doing. And it is here, in these thick bureaucratic weeds, that the legal challenges have begun to take root.
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Part 2 in this DOGE series will examine the various legal challenges that have so far been made against DOGE, Donald Trump, and Elon Musk.
