Congress needs to put DOGE in a time out

Elon Musk’s latest venture, the so-called Department of Government Efficiency or DOGE, might sound like a well-intentioned attempt to streamline bureaucracy. But there’s a major problem—it’s not operating legally.

Although Musk has made a career out of pushing the boundaries of industry norms and government regulations, there’s a fine line between disruption and outright illegality. DOGE is crossing that line.

Let’s start with the most obvious issue: As the Center for American Progress points out, DOGE is not a recognized government agency, nor does it have any authority to make or enforce policies. The U.S. operates under a system of laws that clearly define how governmental agencies are created, structured and empowered. Contrary to the belief of President Trump, agencies like the Environmental Protection Agency or the Federal Communications Commission don’t just appear overnight; they are established by congressional legislation, with clear mandates and oversight mechanisms.

DOGE, in contrast, is a Musk creation, put into motion by an executive order. There has been no act of Congress, no legal foundation and certainly no judicial precedent supporting its existence.

From where I sit, the argument that DOGE is legal now that it's housed within another agency created by executive order is a legally flawed argument.

If DOGE was created through an executive order that exceeded the executive’s authority — such as by bypassing legislative approval or violating constitutional separation of powers — then its mere relocation within another executive-created agency does not cure that illegality. An illegitimate agency can't gain legitimacy simply by being nested within another entity that was also improperly established.

The core issue remains: if DOGE was unlawfully created, then its continued operation, regardless of its structural changes, is still unlawful.

There's also the ignored legal reality that the executive branch can't unilaterally create agencies with regulatory or enforcement powers that should be authorized by Congress. If DOGE exercises authority not properly delegated by law, which remains my thesis, then its actions remain illegitimate regardless of where it is housed. So, without statutory authorization, the agency’s continued operation — even under a different umbrella — isn't legal.

Another major problem is that DOGE appears to be engaging in activities that fall within the scope of federal and state regulatory agencies. Reports indicate that DOGE has been making recommendations on policy changes, efficiency measures and even hiring or firing decisions within government agencies. This level of interference raises significant constitutional and legal concerns. The separation of powers doctrine ensures that private individuals — no matter how influential — cannot unilaterally dictate how government functions. While there is nothing wrong with advocating for reform or providing policy recommendations, doing so under the pretense of an official government entity is deceptive and possibly unlawful.

Then there’s the transparency problem. Any legitimate government agency is subject to oversight mechanisms, including public records laws, congressional oversight and accountability measures such as inspector general reports. DOGE, as it currently operates, has none of these. Musk has not disclosed exactly how DOGE functions, who is involved, or whether any government officials are directly participating. If government employees are working with DOGE in any official capacity, that could raise serious conflicts of interest, potentially violating ethics laws and restrictions on government employees engaging in unauthorized outside work.

Even if DOGE were merely an informal advisory group, there are still legal concerns. The Federal Advisory Committee Act mandates transparency for groups that provide policy recommendations to federal agencies. If DOGE is influencing government decisions, it may be in violation of the act’s requirements for open meetings, public disclosures and balanced representation. Musk may argue that DOGE is purely private, but if government officials are engaging with it behind closed doors, that argument falls apart.

There’s also the potential violation of lobbying laws. If DOGE is actively pushing for policy changes and Musk is using his considerable influence to pressure government agencies or officials, then he is engaging in lobbying. The Lobbying Disclosure Act requires registration and disclosure of lobbying activities, particularly when they involve attempts to influence executive branch decision-making. Musk may not think of himself as a lobbyist, but if DOGE is operating as a backchannel for policy advocacy, then legally, that’s exactly what he is.

Musk’s defenders might argue that DOGE is simply a passion project, an attempt to offer constructive solutions to an inefficient bureaucracy. That’s a fair point — there’s no law against suggesting improvements to the government. But when those efforts cross into creating the illusion of official authority, making backdoor recommendations to government officials, or evading legal oversight, the situation changes dramatically.

This isn’t the first time Musk has pushed the legal envelope. From securities fraud allegations tied to his infamous “funding secured” tweet to labor law violations at Tesla and SpaceX, he has a history of testing legal limits and daring regulators to stop him. DOGE seems to be another iteration of that strategy: launch something bold, operate in a gray area, and deal with the legal fallout later.

But the stakes here are higher. If private individuals can unilaterally declare themselves a government authority and start influencing policy without oversight, it sets a dangerous precedent.

More recently, reports strongly suggest that DOGE is seeking formal meetings with government agencies and gaining access to sensitive personal information, further blurring the lines between private advocacy and unauthorized governance. Some lawmakers have expressed concern over its activities, with at least one congressional committee reportedly looking into its legitimacy and whether it violates any existing laws on governmental structure and lobbying. This heightened scrutiny could lead to formal investigations or even legal action if DOGE is found to be operating outside the law.

If Musk is serious about government efficiency, there are legal ways to pursue reform. He could fund independent research organizations, lobby through proper channels or even push for legislative changes as a private citizen. But Musk cannot simply declare himself the architect of government reform. The United States has legal structures in place for a reason. If DOGE is to have any legitimacy, it needs to operate within those structures. Otherwise, it’s just another example of a billionaire trying to play by his own rules, legality be damned.

Aron Solomon is the chief strategy officer for Amplify. He has taught entrepreneurship at McGill University and the University of Pennsylvania.

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Congress needs to put DOGE in a time out

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