Elon Musk’s Department of Government Efficiency is moving fast and breaking the law — lots of laws.
The scope of Trump and Musk’s sweeping effort to purge the federal workforce and slash government spending has shocked the political world — in part for its ambition, but also in part because of its disregard for the law.
David Super, an administrative law professor at Georgetown Law School, recently told the Washington Post that so many of Musk’s moves were “so wildly illegal” that he seemed to be “playing a quantity game, and assuming the system can’t react to all this illegality at once.”
I reached out to Super so he could walk through this quantity game — so he could take me on a tour of all of the apparent lawbreaking in Musk’s effort so far. A transcript of our conversation, condensed and edited for clarity, follows.
The legality of Musk’s use of administrative leave to sideline civil servants
One thing that really has struck me about the new administration’s tactics so far is this extremely aggressive use of paid administrative leave. Career officials who’ve resisted DOGE’s demands have been quickly put on administrative leave. So were government officials working on DEI. Nearly all of the staff of USAID, the US Agency for International Development, has met that fate.
Is this a legal use of administrative leave? How do normal administrations use it?
This is very strange and likely illegal. Federal law limits administrative leave to 10 workdays per year. So they will be exhausting the cap very quickly for many of these people.
Normal administrations use it the way normal businesses use it, as a patch for a variety of problems. If there’s someone who’s accused of wrongdoing and you need time to investigate and the matter is serious, administrative leave can be the solution. If somebody clearly needs some time off for a compelling reason, such as major losses, and there’s no way of doing it with other forms of leave, this can be done. So it’s a bit of a gap filler in statute and in intent and in ordinary use.
This is making strategic use of it on a vastly grander scale and there’s simply no legal authority for that.
The administration also sent the “fork in the road” email, saying that if civil servants agreed to resign, they’ll go on administrative leave and be paid their full salaries until September 30. What are the legal issues there?
Well, they’re making a promise that is contrary to federal law — and that has very serious consequences.
The appropriations clause of the Constitution says that federal money can only be spent pursuant to an appropriation by Congress, and Congress can limit its appropriation in any number of ways. They’ve limited the appropriation, for salaries, to generally only 10 days of administrative leave per calendar year.
So when they’re promising more than that, they are violating the appropriations clause. They’re also violating the Antideficiency Act [a law prohibiting federal employees from committing funds that haven’t been appropriated]. And then, when they make promises of money to people past March 14, the end of the current continuing resolution, they’re also committing federal funds in advance of an appropriation, which is both unconstitutional and unlawful.
They seem to be thinking of it as a “hack” — they likely think that firing people is legally risky, but putting them on paid administrative leave is a tricky step short of that, that perhaps they could get away with.
Well, one question is whether they’ll actually do it. They’re certainly promising it. But they’ve also suggested that they may not be bound by contracts.
So it’s very possible that people will submit their resignation on this basis, that OPM [Office of Personnel Management] will sign them to contracts committing that, and then will simply not comply, and will argue that they can’t legally comply because of the cap on administrative leave.
At that point the people who were foolish enough to take this invitation may sue to try to enforce their deals. And my guess is the courts will say, we can’t enforce the deal that no one had any authority to make.
Asserting presidential authority not to spend money Congress passed into law
All right, let’s move to spending. We’ve seen an incredibly broad order about freezing federal grants put on hold by the courts. There’s also been talk of Musk’s team trying to block specific grants from being paid out. What are the legal issues with that?
Well, the biggest issue is that the Supreme Court ruled nine to nothing that when Congress directs that money be spent, the president is obliged to do it. So that’s an obstacle that will be very difficult for them to overcome.
Presidents can certainly send recommendations to Congress that funds should be cut. The Impoundment Control Act provides an expedited procedure for having those recommendations considered. But the president simply doesn’t have this unilateral authority.
The Trump administration has come up with a lot of far-fetched legal theories about why they’re able to do all these things. But these legal theories really come from the same place as that idea that the vice president has the power to overturn the popular judgment in a presidential election and give the election to whomever the vice president chooses. That was an absurd theory when they tried to persuade Mr. Pence to do it, and it’s been an absurd theory ever since. Yet the ideas that we’re seeing popping up here come from the same very strange form of bizarre Constitutional ideas.
Trump and Musk are trying to disband USAID and move it over to the State Department. This seems to be blatantly defying the face of the congressional statute creating that agency, right? Is it any more complicated than that?
It really isn’t. Section 6563(a) of Title 22 of the US code says, there is a USAID. It doesn’t say there can be. It doesn’t say, “If the president wants to.” It says, there is a USAID. So to close it down means to defy that statute.
Musk’s own appointment and the Treasury Department’s payment system
I also want to ask about Elon Musk himself and his position in the government. The administration has said he is a special government employee, though they are not saying exactly when he officially got that status. They’re saying that it’s up to him whether to declare a conflict of interest regarding his business, with anything he’s working on. What are the legal problems here?
Well, there are many such problems. There are a number of integrity-of-government rules designed to keep people who do business from governments controlling the purse strings that affect them.
We don’t know what Mr. Musk’s status is. We don’t know if he has any status at all or they’re waiting to see what happens and they try to provide it to him retrospectively. So we’re really very much at a loss to how all of this might come together. But it appears that he is being given access to information that could be extremely helpful to use against his competitors. Simply saying, “Well, we hope that he’ll do the right thing on conflicts of interest” falls far, far short of the obligations of the government.
There’s been much reporting about Musk and his team getting into the Treasury Department’s payment systems. What are the legal red flags about that?
There are a number of those. There are very elaborate requirements in federal law about who can control federal funds — who can issue payments on the behalf of the federal government. In all likelihood, the people involved do not qualify under those terms.
It also means that they’re getting access to extraordinarily sensitive private information that is covered by the Privacy Act and a number of other statutes and regulations designed to protect the American people from identity theft. If reports that they’ve copied this information onto other servers are true, and those servers get hacked, then many of us could have our bank accounts emptied by the federal government.
By contrast, Mr. Musk has been saying that he’s identifying false payments, or illegal payments, and saving the federal government $4 billion a day or some enormous figure of that kind. There’s no reason to believe that the data in this system would allow one to tell what’s legal and what’s not, leaving aside the fact that Mr. Musk is not authorized to make those sorts of decisions. So it seems that there’s either wishful thinking or something worse going on in how they’re trying to justify this.
(Update: After this conversation, the Trump administration agreed to temporary limits on DOGE’s access to Treasury’s payment systems.)
Will the courts stop this?
Is there any other area of blatant lawbreaking that I neglected to mention?
He has said that he has the authority to abrogate federal rules without going through the procedures required by the Administrative Procedure Act. That would fundamentally upend the regulatory system in this country and could be very disturbing for regulated businesses. If a different president decided to use that reported power to ratchet up regulations, I suspect both liberals and conservatives would be very concerned about that proposal.
You told the Washington Post that you thought they were playing a “quantity game” of betting that if they blatantly defied a lot of laws at the same time, the system wouldn’t be able to handle or effectively respond to what they’re doing. How do you think that that has worked out for them so far?
The funding freeze was enjoined. Many of these other moves are unlawful and likely will be fairly quickly enjoined.
But I think that President Trump is following through on the statements he’s made a number of times that his appointments to the Supreme Court owe him and should show him loyalty, and he believes that between his three appointees and Justices Thomas and Alito, that he can have a majority willing to allow him to violate any federal law he wants to.