The second Trump Administration is quickly pushing the limits of executive power. While many of Trump’s supporters are rallying behind his decisions, legal analysts are raising alarms about a potential constitutional crisis, as several of the President’s actions prompt significant legal and constitutional dilemmas that may take years to resolve.
During his first term, Trump frequently clashed with both the judiciary and Congress over accusations of executive overreach. This time around, he appears poised for an even more forceful approach. His recent initiatives—aimed at dismantling independent agencies, granting private access to sensitive government systems, and proposing unprecedented buyouts for federal employees—have already sparked legal challenges and heated debates regarding the scope of presidential authority.
Let’s explore some of the ways Trump’s current proposals are straining legal limits and examine which specific laws experts believe his Administration may be violating.
Abolishing USAID
The future of the U.S. Agency for International Development (USAID) is uncertain as Trump, alongside Elon Musk, has hinted at plans to effectively dismantle the agency by removing its independence and placing it under the State Department’s control.
Established as a key component of U.S. foreign policy, USAID provides humanitarian assistance, promotes global health initiatives, and supports democratic governance in some of the world’s most unstable areas. The agency disburses billions in aid each year, addressing a variety of crises from natural disasters to health emergencies. Advocates assert that its efforts, spanning over 120 countries, have mitigated suffering and fostered long-term relationships that bolster U.S. national security. However, in recent years, USAID has become a target for Trump’s broader strategy to cut federal programs he deems ineffective or wasteful. He has criticized the agency for allegedly prioritizing globalism over American interests, stating, “It’s been run by a bunch of radical lunatics, and we’re getting them out, and then we’ll make a decision” regarding its future.
Is Trump allowed to do this?
Legal analysts assert that Trump does not have the constitutional authority to eliminate USAID without Congress’s consent. Although the agency originated from an executive order by President John F. Kennedy in 1961, it was established as a distinct government entity by Congress in 1998. This distinction indicates, according to legal experts, that Congress holds the ultimate power to terminate the agency or allow it to be integrated into the State Department, as suggested by Secretary of State Marco Rubio. “The President cannot constitutionally disregard a statute that establishes a department or agency,” explains Saikrishna Prakash, a law professor at the University of Virginia.
The independent status of USAID was further reinforced by the Foreign Affairs Reform and Restructuring Act of 1998, which limits the president’s ability to unilaterally abolish 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 lapsed. The President cannot reorganize USAID at this juncture.”
Prakash noted that while Trump could choose not to allocate the agency’s foreign aid funds, such a decision would likely conflict with the Impoundment Control Act of 1974, which requires presidential approval to withhold discretionary spending. This could potentially lead to a Supreme Court case regarding the President’s power to withhold funds that Congress has appropriated. Trump’s legal team might argue that the “Constitution grants the President the right to impound funds” by referencing how Thomas Jefferson halted funding for gunboats on the Mississippi River, Prakash points out.
He also mentioned that the Trump Administration might seek congressional support for legislation to dissolve USAID, though securing the backing of 60 senators to overcome a likely filibuster would be challenging.
On Monday, Democrats gathered outside USAID’s office after employees were instructed to work remotely. Rep. Don Beyer, representing a district in Northern Virginia with a significant federal employee population, declared that the law was clear, and noted, “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.
Providing Elon Musk’s DOGE access to sensitive data
Shortly after his inauguration, Treasury Secretary Scott Bessent granted Elon Musk and his Department of Government Efficiency (DOGE) team access to the federal payment system, which manages over $5 trillion in annual federal disbursements, including Social Security, Medicare, and tax refunds.
However, the Treasury Department’s payment records extend beyond mere federal transactions; they encompass a highly sensitive infrastructure that processes vital transactions. This includes personal information from taxpayers, beneficiaries of federal programs, and contractors, raising concerns about the potential for misuse or mishandling of this data.
While supporters argue that Musk’s team requires access to this data to identify inefficiencies and cut government spending, critics worry about the implications of granting a billionaire—whose companies, including Tesla and SpaceX, have substantial government contracts—access to such sensitive information. Some have even questioned whether Musk’s oversight could be utilized to politically influence or withhold payments, particularly given his known efforts to reduce federal spending and his personal business interests in government contracts.
Is Trump allowed to do this?
Legal experts contend that granting Musk and his team access to sensitive government data may violate several federal laws, 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 safeguards under the Internal Revenue Code.
Alan Butler, a lawyer and executive director of the Electronic Privacy Information Center, argues that DOGE’s access could represent a serious breach of the Privacy Act, which prohibits unauthorized disclosures of personal information. “It’s evident that DOGE has more than just access,” Butler states, referencing Musk’s recent posts on X that highlighted 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 manners.”
The decision to give Musk’s DOGE access to sensitive information has prompted a lawsuit from two major federal employee unions, alleging that the Trump Administration violated the Privacy Act of 1974.
Legal experts also highlight possible violations of FISMA, which requires stringent security measures for federal IT systems, and CFAA, which penalizes unauthorized access to government networks. Butler noted that CFAA violations can lead to serious penalties and suggested that a special prosecutor might be needed to investigate potential criminal activity.
Perhaps most concerning, experts argue, is DOGE’s potential access to tax return information, which is strictly safeguarded under Section 6103 of the Internal Revenue Code. The Treasury’s payment system handles tax refunds, meaning DOGE personnel could potentially access sensitive financial data. “Every American filing taxes right now has their payments processed by this system,” Butler cautioned. “Tax return information is among the most protected data in federal law… Even the President cannot broadly authorize access to tax return information.”
These stringent restrictions were reinforced after the Nixon Administration misused tax records to target political adversaries. Under current regulations, only senior executive officials with a direct need for the data may access it, and even then, only under limited circumstances. “Even when the President is vetting a judicial nominee, the executive branch has only restricted access to tax return data,” Butler explained. “The notion 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, attributed to hackers from China, heightened fears that the information could be exploited for espionage against federal employees. According to Butler, “that was a drop in the bucket compared to the current situation,” with DOGE potentially having access to Treasury data. “Spying activities and foreign intelligence occur regularly,” he remarked. It remains unclear whether Musk or others at DOGE possess the necessary security clearance for the records they are accessing. If they do have clearance, it is uncertain if they underwent the same rigorous vetting normally required. “There is national-security-sensitive information in those systems, and you’re giving it to individuals who lack clearance, training, and the appropriate authorization,” Butler warned.
Trump assured reporters this week that Musk “can’t and won’t do anything without our approval,” stressing 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 really quickly,” he stated.
Trump’s federal buyout initiative
On January 28, millions of federal employees received an unexpected email from the Office of Personnel Management (OPM) offering them the opportunity to resign by February 6 in exchange 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 framed this offer as a means to “streamline and enhance the government’s efficiency.” However, the details of the proposal have raised significant legal and political concerns, with some unions and notable Democrats advising federal workers against accepting it. Bloomberg reported Tuesday, citing an unnamed source, that over 20,000 employees have chosen to accept the offer thus far.
Is Trump allowed to do this?
Legal and governmental experts have raised multiple concerns about the legality of OPM’s buyout. Some argue that it may violate the Anti-Deficiency Act, a law that prohibits the government from spending more than Congress has appropriated, as well as the Administrative Leave Act.
It remains uncertain whether such a comprehensive federal buyout, promising payments eight months into the future, can be legally executed, especially as the federal government’s funding is set to expire in mid-March. Bednar, the University of Minnesota law professor, points out that the core issue revolves around the Anti-Deficiency Act, which strictly limits the government’s ability to make financial commitments that exceed congressional appropriations.
The Trump Administration has maintained that the offer will not result in guaranteed payments beyond the current appropriations period. However, Bednar emphasizes that the program’s structure could increase the risk of incurring obligations beyond budgeted provisions, potentially violating federal law. “The Anti-Deficiency Act states that agencies cannot enter into contracts for future payments without the necessary appropriations,” he warns. “This could constitute a clear violation.”
Another legal concern pertains to the Administrative Leave Act of 2016, which imposes strict limits on how federal employees can be placed on leave. This law was designed to prevent agencies from sidelining workers for extended periods without clear justification. Bednar argues that the deferred resignation program, which effectively puts 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 appears to violate that act,” he states. “Although there are regulations introduced during the Biden Administration that limit this provision to investigative leave, the Congressional Record suggests Congress intended this to apply broadly to all forms of administrative leave.”
The situation surrounding the buyout program becomes even more complex with the impending 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 have expressed confusion regarding whether their positions will be exempt from the resignation offer, with unclear exclusions for specific categories of workers, particularly those 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 decide whether to accept the offer.
