The second term of the Trump Administration is rapidly testing the boundaries of executive power. While Trump’s supporters are largely backing his controversial decisions, legal experts are voicing concerns about the risk of a constitutional crisis. Several actions taken by the President are raising significant legal questions that could take years to navigate.
During his initial presidency, Trump often found himself at odds with Congress and the judiciary, facing accusations of overstepping his authority. Now, he seems ready to adopt an even more aggressive stance. Recent proposals aimed at reorganizing independent agencies, allowing private access to confidential government data, and introducing unprecedented federal buyout options for government employees are already igniting legal disputes and intense discussions about the limits of presidential power.
Let’s delve into some specific proposals from Trump’s current agenda that are pushing legal boundaries and investigate the laws that experts believe may be at risk of being violated.
Proposed Elimination of USAID
The future of the U.S. Agency for International Development (USAID) hangs in the balance as Trump, alongside Elon Musk, indicates intentions to effectively dismantle the agency by stripping it of its independence and merging it under the State Department.
USAID has been a cornerstone of U.S. foreign policy, providing humanitarian aid, advancing global health, and supporting democratic institutions in some of the world’s most fragile regions. The agency allocates billions each year to respond to crises ranging from natural disasters to health emergencies. Advocates argue that its work, spanning over 120 nations, reduces suffering while strengthening long-term ties that enhance U.S. national security. However, in recent years, USAID has become a target for Trump’s broader initiative to eliminate federal programs he perceives as ineffective or wasteful. He has openly criticized the agency, claiming it prioritizes global interests over American ones, stating, “It’s been run by a bunch of radical lunatics, and we’re getting them out, and then we’ll make a decision” about its future.
Is Trump Legally Allowed to Do This?
Legal scholars assert that Trump lacks the constitutional authority to abolish USAID without legislative approval from Congress. Although the agency was established by an executive order from President John F. Kennedy in 1961, it was formally created as an independent entity by Congress in 1998. This distinction indicates that Congress retains the power to dissolve the agency or approve its integration into the State Department, as proposed by Secretary of State Marco Rubio. According to Saikrishna Prakash, a law professor at the University of Virginia, “The President cannot constitutionally disregard a statute that establishes a department or agency.”
The independent status of USAID is further supported by the Foreign Affairs Reform and Restructuring Act of 1998, which limits the President’s ability to unilaterally eliminate the agency, according to Nick Bednar, a law professor at the University of Minnesota. To dissolve USAID, he argues, new legislation from Congress would be required. “The Clinton Administration ensured USAID’s independence,” he elaborates, “and the authority to reorganize it has now lapsed. The President cannot reorganize USAID at this point.”
Prakash highlights that while Trump could opt not to allocate funds for the agency’s foreign aid, such a move would likely violate the Impoundment Control Act of 1974, which mandates presidential approval for withholding 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 contend that the “Constitution grants the President the right to impound funds,” referencing Thomas Jefferson’s decision to halt funding for Mississippi River gunboats, as Prakash points out.
He also noted that the Trump Administration might seek congressional backing for legislation to dissolve USAID, although garnering support from 60 senators to overcome a likely filibuster would prove challenging.
On Monday, Democrats protested outside USAID’s office after employees were instructed to work remotely. Rep. Don Beyer, from a Northern Virginia district with a substantial federal workforce, asserted that “the law was clear,” emphasizing, “What Trump and Musk have done is not only wrong; it is illegal.”
“USAID was established by an act of Congress and can only be terminated by an act of Congress,” he added.
Granting Elon Musk’s DOGE Access to Sensitive Information
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’s payment records do more than just track federal transactions; they involve a highly sensitive network that processes critical transactions. This system contains personal data from taxpayers, federal program beneficiaries, and contractors, raising alarms about the potential for data misuse or mishandling.
Supporters argue that Musk’s team needs this data to identify inefficiencies and reduce government spending, but critics express concern over the implications of granting a billionaire—whose companies, like Tesla and SpaceX, hold significant government contracts—access to such sensitive information. Some have even raised questions about whether Musk’s oversight could be leveraged to politically influence or withhold payments, particularly given his known efforts to reduce federal expenditures and his personal business interests in government contracts.
Is Trump Legally Allowed to Do This?
Legal experts argue that providing Musk and his team access to sensitive government information may violate several federal statutes, including the Privacy Act of 1974, the Federal Information Security Modernization Act (FISMA), and the Computer Fraud and Abuse Act (CFAA), in addition to 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 signify a serious breach of the Privacy Act, which forbids unauthorized disclosures of personal data. “It’s clear that DOGE has more than just access,” Butler asserts, referring to 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 data has led to a lawsuit from two major federal employee unions, claiming that the Trump Administration breached the Privacy Act of 1974.
Legal analysts also raise concerns about potential violations of FISMA, which mandates rigorous security protocols for federal IT systems, and 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 might be needed to investigate potential criminal actions.
Perhaps the most alarming aspect is DOGE’s prospective access to tax return information, which is stringently protected under Section 6103 of the Internal Revenue Code. Since the Treasury’s payment system handles tax refunds, personnel from DOGE could potentially view sensitive financial details. “Every American filing taxes right now has their payments processed by this system,” Butler warned. “Tax return information is among the most safeguarded data in federal law… Even the President cannot broadly authorize access to tax return information.”
These strict regulations were reinforced after the Nixon Administration misused tax records to target political opponents. Current rules stipulate that only senior executive officials with a legitimate need for the information may access it, and even then, only under 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 granting access to someone without credentials or clearance is absurd.”
In 2013, a breach of the Office of Personnel Management (OPM) database, believed to be linked to Chinese hackers, intensified fears about the potential for data exploitation for espionage against federal employees. According to Butler, “that was a drop in the bucket compared to the current situation,” with DOGE possibly having access to Treasury data. “Espionage activities and foreign intelligence operations happen frequently,” he cautioned. It remains unclear whether Musk or others in DOGE possess the necessary security clearance for the records they are accessing. If they do, it’s uncertain whether they underwent the same rigorous vetting typically required. “There is national-security-sensitive information in those systems, and you’re giving it to individuals who lack clearance, training, and 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 very quickly,” he remarked.
Trump’s Federal Buyout Proposal
On January 28, millions of federal employees received an unexpected email from the Office of Personnel Management (OPM) offering them a chance to resign by February 6 in exchange for eight months of pay and benefits. Those who chose not to resign would be expected to return to the office full-time.
Trump has characterized this offer as a way to “streamline and enhance government efficiency.” Nonetheless, the specifics of the proposal have raised significant legal and political issues, prompting some unions and prominent Democrats to advise federal employees against accepting it. Bloomberg reported on Tuesday, citing an unnamed source, that more than 20,000 employees have accepted the offer thus far.
Is Trump Legally Allowed to Do This?
Legal and governmental experts have voiced multiple concerns regarding the legality of OPM’s buyout offer. Some argue that it may violate the Anti-Deficiency Act, which prohibits the government from spending more than what Congress has approved, as well as the Administrative Leave Act.
It remains unclear whether such a sweeping federal buyout, promising payments eight months in advance, can be executed legally, especially as federal funding is set to expire in mid-March. Bednar, the law professor from the University of Minnesota, points out that the primary issue centers around the Anti-Deficiency Act, which strictly limits the government’s ability to commit to financial obligations beyond 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 that exceed budgeted allocations, potentially violating federal law. “The Anti-Deficiency Act states that agencies cannot enter into contracts for future payments without the proper appropriations,” he warns. “This could represent a clear violation.”
Another legal concern relates to the Administrative Leave Act of 2016, which imposes strict limitations on how federal employees can be placed on leave. This law aims to prevent agencies from sidelining workers for extended periods without valid justification. Bednar argues that the proposed resignation program, which effectively puts employees on leave while still paying them, may also conflict with this statute. “If we’re discussing placing employees on leave for eight months, this program appears to violate that act,” he states. “Although regulations introduced during the Biden Administration limit this provision to investigative leave, Congressional records suggest Congress intended for this to apply broadly to all forms of administrative leave.”
The situation surrounding the buyout program is further complicated by the impending expiration of current funding in March. OPM has sought to assuage concerns by making it clear 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 have expressed confusion regarding whether their positions will be exempt from the resignation offer, especially with unclear exclusions for specific categories of workers, notably those involved in national security and immigration enforcement.
This ambiguity has left many federal employees uncertain about whether they would indeed receive the promised benefits if they choose to resign. They have until February 6 to make their decision.