Conversely, McConnell stated that in his opinion, some of what the Trump administration has done is, in fact, unlawful and unconstitutional. However, he added, “I’ll have no hesitation in calling them out when I think they’re on the unlawful side of the line, but DOGE isn’t one of them.”
Legal minds fight over DOGE
10 March 2025
(The Center Square) – Since launching in January, the Trump administration’s Department of Government Efficiency, or DOGE, has sparked both support and outrage while also coming under legal and constitutional scrutiny.
Open to Debate recently brought together two prominent constitutional scholars to examine the question: “Is Musk’s DOGE Dodging the Law?” – approaching it from a strictly legal perspective.
While mostly agreeing on constitutional and legal principles, the two experts disagreed on whether DOGE has violated any of them.
Laurence Tribe, University Professor of Constitutional Law Emeritus at Harvard University, asserts actions taken by Elon Musk and the organization pose a constitutional crisis, threaten the rule of law and lack government accountability.
Former Judge of the U.S. Court of Appeals for the Tenth Circuit, and Law Professor and Director of the Constitutional Law Center at Stanford Law School, Michael W. McConnell, took the other side of the argument, contending that while concerns exist, no clear evidence of illegal actions by DOGE or Musk have been proven.
Tribe accuses Musk – in his role as Senior Advisor to the President – of a conflict of interest, saying the millions he spent helping elect the president violate federal laws by influencing government decisions that could financially benefit him. For example, pressuring the Federal Aviation Administration to switch contracts from Verizon to Starlink.
He describes Musk’s role as “murky.” While Amy Gleason is DOGE’s Administrator, Tribe argues Musk wields significant governmental authority without Senate confirmation – effectively acting as a principal officer while claiming to be just a “special government employee” or advisor.
He also claims Musk is shielding himself behind presidential advisor immunity, bypassing laws that restrict executive overreach, particularly those preventing the usurpation of Congress’s power over the purse and structure of the government.
Tribe added that by doing so, Musk may be evading accountability for actions that could otherwise violate law, and he doubts Attorney General Pam Bondi or FBI Director Kash Patel would investigate or prosecute him for potential violations.
McConnell countered that Musk’s advisory role follows historical precedent, similar to past administration “czars” who influenced policy without formal authority, maintaining that DOGE operates within proper government structures, with decisions made by agency heads, rather than Musk directly.
He cited a recent ruling in which claims of harm were dismissed because the judge took issue with the fact that they were speculative, lacked evidence, and relied heavily on media reports.
McConnell stated he agrees that presidents must comply with judicial orders – and while some worry Trump might not, he insists he will.
Tribe alleges Trump’s use of impoundment, or freezing funds for various programs such as USAID, is a disruption and fundamentally unconstitutional.
McConnell disagreed, explaining that while the president cannot refuse to spend money appropriated by Congress, he does have broad authority – particularly in foreign policy – to cancel specific grants.
In this case, he said, the acting head of USAID, Secretary of State Marco Rubio, froze certain grants to evaluate their alignment with the current administration’s policies, canceling those deemed inconsistent.
“I don’t understand what could possibly be illegal about that,” McConnell said.
Questions were raised regarding civil service laws and the status of the Merit Systems Protection Board, or MSPB – the agency that defends the rights of federal employees.
On the termination of “tens of thousands of probationary workers,” McConnell noted that probationary employees are not covered by the full protections of civil service laws.
“It looks as though the administration has focused its attention on precisely those people that he did have the right to fire,” he said.
In February, Trump fired Cathy Harris, chair of the MSPB, but she was reinstated after an order barring her removal unless cause was proven.
Tribe said the MSPB is only functioning because the Head Office of Special Counsel allows whistleblower complaints about illegal firings to be processed.
He suggested that not seeing the bigger picture obscures a broader pattern.
“What we fail to see is that chainsaw” and the overall pattern that our government “is being smashed and broken,” Tribe said.
He added that when conflict of interest leads to the “extraordinary expanse in the wealth of one individual, we don’t see the fact that it’s becoming an autocracy and a kleptocracy,” and undermining the rule of law and constitutionalism.
McConnell pushed back saying Tribe’s statements were airy generalizations rather than legal arguments.
Things became heated when it was asked whether Musk can exercise significant authority within his employee status or if that was reserved for principal officers and required Senate confirmation under the Constitution’s Appointments clause.
McConnell said Musk has no formal government power.
“He has influence…and so what the agency head who does have the power knows, is that if they disagree with Musk, they’re going to have an argument with the president,” he said.
Tribe cited several Supreme Court cases he claims support his opinion, which McConnell called a “totally made-up proposition. ” Again, McConnell disputes Tribe’s legal arguments.
Tribe asserts that the U.S. government is being “hijacked by people in their 20s” who were never elected, appointed, or confirmed, and answering to Elon Musk.
“He’s slashing through the government, breaking things,” and is not merely a Trump whisperer. “It’s loud and bloody,” he said.
