Can the law keep up with Musk and DOGE?

The US Department of Government Efficiency (DOGE) is facing a slew of lawsuits right out of the gate, but the speed at which President Donald Trump’s administration is moving could hamper the effectiveness of legal challenges. 

Led by Elon Musk, the green-horn federal advisory agency is the target of at least three lawsuits alleging that DOGE has violated the Federal Advisory Committee Act (FACA) — a transparency law regulating advisory committees, such as the Space Science Advisory Committee or the United States Commission on Civil Rights. 

All three lawsuits were filed on Jan. 20 — immediately after Trump took his oath of office and officially formed the committee.

Trump’s reputation for disregarding norms, coupled with the tech industry’s habit of “moving fast and breaking things,” means that these legal challenges to DOGE, and even to the administration more broadly, could have difficulty finding purchase.

Andrew Jackson and the “tech barons’ gambit”

The incoming cohort of tech and crypto executives to the American political process now has a direct line to the presidency.

But their desire to make changes quickly could be bogged down in the “swampy quagmire of Washington,” according to Aaron Brogan, a lawyer focused on cryptocurrency and emerging technology regulation.

“Official actions are encumbered by hundreds of years of sclerotic bureaucracy and mandatory process. Obviously, this is going to be a major challenge for Silicon Valley people who are used to Curtis Yarvin-esqe executive fiefdoms,” he told Cointelegraph. 

DOGE faces three suits filed in the US District Court for the District of Columbia, alleging that it has violated the FACA: 

All three make similar allegations against DOGE, but none of them carries an injunction or temporary restraining as of Jan. 22, meaning “there is nothing to restrain DOGE from continuing to operate while these lawsuits pend,” said Brogan.

According to the lawyer, one could imagine Alex Spiro (Musk’s lawyer) dragging out the process with procedural motions so that DOGE has more time to act before an injunction.

Related: US Department of Government Efficiency slapped with more lawsuits

Timing is key. If DOGE and the administration’s timeline is in years, then it could still be possible for courts to stop them, but “if it takes 160 days, then they have a chance.” 

“I think the tech barons’ gambit is that if they ignore all of the process, they might be able to cut the Gordian knot before they are restrained. Maybe they succeed; maybe they don’t.”

Then there is the question of enforcement. While it’s entirely plausible that a court could rule for the plaintiffs, the government organs responsible for enacting that decision are under the purview of the executive branch — i.e., Donald Trump. 

This “fundamental vulnerability of the American form of government,” Brogan noted, can be expressed through the example of former President Andrew Jackson.

When the Supreme Court ruled in a manner that Jackson disagreed with, he apocryphally stated:

“[Justice] John Marshall has made his decision, now let him enforce it.” 

Like Jackson, it is possible that Trump could sidestep aspects of enforcement he disagrees with. “Trump has mostly obeyed the courts in the past, but there are many people in his administration who are well aware of this vulnerability, and we may yet see it tested here,” Brogan concluded.

On Jan. 20, Trump had the Oval Office redecorated according to his personal taste, including a portrait of Jackson.

Balancing “expert advice” and “democratic accountability”

Despite the “D” in its name, DOGE is not actually a federal executive department — that would require approval from Congress. According to the executive order, it’s a temporary organization under the US DOGE Serve, formerly the US Digital Service — an advisory unit for improving government IT structures.

FACA was not controversial on its inception but was rather “a necessary response” to the vast number of committees that led to “unwieldy management, high costs and lack of accountability,” according to cyber and digital media attorney Andrew Rossow.

After World War II and on through the 1960s, thousands of executive committees had proliferated. By the late stages of America’s war in Vietnam, following years of mass protests and civil unrest, trust in government had reached new lows. In 1972, FACA passed amid “significant pressure for transparency in government.”

Related: Fake TRUMP and MELANIA tokens record $4.8M inflows in 24 hours

Rossow told Cointelegraph, “its true power, despite how the media has already presented it, was transforming a long-standing informal practice of seeking external expertise in governance into a structured, accountable system that is designed to serve the public interest — not to be utilized as tools for undue influence or for those in high-ranking positions of government.”

To achieve this, FACA requires lots of filing, reporting and for open and transparent meetings to be published in the Federal Register at least 15 days prior.

One key aspect — particularly as it relates to DOGE — is FACA’s condition that a committee be “fairly balanced in terms of the points of view represented and the functions to be performed by the advisory committee.”

Kelly McClanahan of National Security Counselors — one of the plaintiffs in Lentini v. Department of Government Efficiency — told Cointelegraph, “That means that it has to have members who represent all of the perspectives of the people who will be affected by it.”

“DOGE is very tech industry-heavy and is promising to recommend large reductions in force in federal agencies, yet has no representatives who can provide the perspective of the federal workers who will be affected.”

McClanahan noted National Security Counselors is “not looking to shut DOGE down, just ensure that it follows the rules. So, we’re going to argue that it can’t operate as an advisory committee until it does.”

Some agencies and committees have challenged FACA in the past but “with limited success,” said Brogan.

“Maybe Elon has arguments that I am not privy to, but I think it is going to be really hard for DOGE to avoid this legal classification.” 

Courts are becoming a battleground

“The ‘move fast and break things’ mentality may clash with the deliberate pace of government,” said Rossow, which could result in “legal challenges to new policies.”

Indeed, now that Republicans have a majority in Congress and control the White House, observers believe it is likely the US legal system will become a key platform for opposing Trump’s policies.

Even though the Supreme Court has a 6–3 conservative bias, “these justices are erudite, well-socialized creatures of the swamp, and they, unlike Trump, are profoundly restrained by their social contexts,” said Brogan. 

“They have beliefs that obviously guide their decision-making, and they are not independent of those. But they are independent of Trump. Chief Justice Roberts has carefully guarded against erosion of trust in the court for much of his career; I think that is far more important to him than the policies of Donald Trump.”

“Whether that will be enough to prevent a constitutional crisis in the next four years, we will all have to wait and see.”

Magazine: They solved crypto’s janky UX problem. You just haven’t noticed yet