{"id":46009,"date":"2025-02-06T08:25:24","date_gmt":"2025-02-06T16:25:24","guid":{"rendered":"https:\/\/www.orderlyrandomness.com\/blog\/?p=46009"},"modified":"2025-02-11T04:50:20","modified_gmt":"2025-02-11T12:50:20","slug":"is-he-breaking-the-law","status":"publish","type":"post","link":"https:\/\/www.orderlyrandomness.com\/blog\/2025\/02\/06\/is-he-breaking-the-law\/","title":{"rendered":"is he breaking the law?"},"content":{"rendered":"\n

Time magazine has a piece out called: Can He Do That? What Legal Experts Say About Trump\u2019s Most Radical Moves<\/a><\/em><\/p>\n\n\n\n

By Nik Popli<\/a><\/a><\/p>\n\n\n\n

February 4, 2025 4:07 PM EST<\/p>\n\n\n\n

The second Trump Administration has wasted little time in testing the boundaries of executive authority. While many of the President\u2019s supporters are cheering him on, some legal experts see a constitutional crisis unfolding, as many of Trump\u2019s moves raise urgent legal and constitutional questions that could take years to fully unravel.<\/p>\n\n\n\n

Trump, whose first term was marked by repeated clashes with the courts and Congress over executive overreach, has signaled an even more aggressive approach this time around. His Administration\u2019s recent actions\u2014attempting to dismantle independent agencies, granting private individuals access to sensitive government systems, and offering unprecedented federal employee buyouts\u2014are already triggering legal challenges and intense debate over the limits of presidential power.<\/p>\n\n\n\n

Here are some of the ways Trump\u2019s proposals are testing legal boundaries, and what specific laws some experts say the Administration may be breaking the law:<\/p>\n\n\n\n

Dissolving USAID<\/h2>\n\n\n\n

The fate of the U.S. Agency for International Development (USAID) is hanging in the balance after Trump and Musk signaled plans to effectively shut down the agency by stripping away its independence and placing it under State Department control.<\/p>\n\n\n\n

USAID has long been a part of U.S. foreign policy, providing humanitarian aid, promoting global health initiatives<\/a>, and supporting democratic governance in some of the world\u2019s most volatile regions. It administers billions of dollars in aid annually, addressing crises ranging from natural disasters to health pandemics. Supporters say the agency\u2019s work, conducted in over 120 countries, has alleviated suffering and built long-term relationships that support U.S. national security interests. But in recent years, USAID has become a target of Trump\u2019s broader campaign to slash federal programs he views as ineffective or wasteful. Trump has long criticized USAID as an institution that often strays from his \u201cAmerica First\u201d agenda, claiming it prioritizes globalism over American interests. \u201cIt\u2019s been run by a bunch of radical lunatics, and we\u2019re getting them out, and then we\u2019ll make a decision\u201d on its future, he said on Feb. 2.<\/p>\n\n\n\n

Can Trump legally do that?<\/h3>\n\n\n\n

Several legal experts tell TIME that Trump lacks constitutional authority to shut down the agency without congressional approval. While USAID was created through an executive order by President John F. Kennedy in 1961, it was established as its own government agency by Congress in 1998. The distinction suggests, according to legal experts, that Congress has final authority to shut down the agency or to allow it to be folded into the State Department, as Secretary of State Marco Rubio has suggested. \u201cThe President does not have constitutional authority to ignore a statute that establishes a department or agency,\u201d says Saikrishna Prakash, a law professor at the University of Virginia.<\/p>\n\n\n\n

USAID\u2019s current legal status as an independent entity was solidified through the Foreign Affairs Reform and Restructuring Act of 1998<\/a>, which restricts the president\u2019s ability to abolish the agency unilaterally, says Nick Bednar, a law professor at the University of Minnesota. Any attempt to dissolve USAID, he says, would require new legislation from Congress. \u201cThe Clinton Administration chose to enshrine USAID as an independent agency,\u201d he says, \u201cand the authority to reorganize it has now lapsed. The President has no authority to reorganize USAID at this point.\u201d<\/p>\n\n\n\n

Prakash noted that Trump could refuse to spend the agency\u2019s foreign-aid funds, but doing so would likely conflict with the Impoundment Control Act of 1974, a Nixon-era federal law that requires the president to get permission from Congress to withhold discretionary spending. It may ultimately set up a Supreme Court battle over the President\u2019s authority to withhold funds appropriated by Congress. Trump\u2019s legal team would argue that the \u201cConstitution gives the President a right to impound funds\u201d and cite how Thomas Jefferson halted funding for gunboats to patrol the Mississippi River, Prakash says.<\/p>\n\n\n\n

He adds that the Trump Administration might be planning to ask Congress to pass legislation to dissolve USAID, though it would be difficult for such a bill to get the necessary support from 60 Senators to overcome an all-but-certain filibuster.<\/p>\n\n\n\n

On Monday, Democrats rallied outside of USAID\u2019s office, after the agency\u2019s staffers had been instructed to work remotely. Rep. Don Beyer, whose district in Northern Virginia contains one of the largest concentrations of federal employees in the country, said the law was not in dispute, and that \u201cwhat Trump and Musk have done is not only wrong, it is illegal.\u201d<\/p>\n\n\n\n

\u201cUSAID was established by an act of Congress and can only be disbanded by an act of Congress,\u201d he added.<\/p>\n\n\n\n

Granting Elon Musk\u2019s DOGE access to sensitive data<\/h2>\n\n\n\n

Days after his swearing-in, Treasury Secretary Scott Bessent granted Elon Musk<\/a> and his team at the Department of Government Efficiency (DOGE) access to the federal payment system, which handles more than $5 trillion annually in federal disbursements, including Social Security, Medicare, and tax refunds.<\/p>\n\n\n\n

But the Treasury Department\u2019s payment records are more than a federal checkbook; they are part of a highly sensitive system that processes the country\u2019s essential transactions. It includes personal information from taxpayers, beneficiaries of federal programs, and contractors, raising alarm over the potential for misuse or mishandling of such data.<\/p>\n\n\n\n

While proponents argue that Musk’s team needs access to the data to root out inefficiencies and reduce government spending, critics are alarmed<\/a> by the implications of giving a billionaire\u2014whose companies, such as Tesla and SpaceX, hold substantial government contracts\u2014and his team access to such sensitive information. Some have even questioned whether Musk’s oversight could be used to politically manipulate or withhold payments, particularly given his known efforts to slash federal spending and his personal business interests in government contracts.<\/p>\n\n\n\n

Can Trump legally do that?<\/h3>\n\n\n\n

Legal experts say granting Musk and his team access to such sensitive government data potentially contravenes multiple federal statutes, including the Privacy Act of 1974, the Federal Information Security Modernization Act (FISMA), and the Computer Fraud and Abuse Act (CFAA), as well as strict taxpayer privacy provisions under the Internal Revenue Code.<\/p>\n\n\n\n

Alan Butler, a lawyer and executive director of the Electronic Privacy Information Center, argues that DOGE\u2019s access likely constitutes an egregious violation of the Privacy Act, which prohibits unauthorized disclosures of personal data. \u201cIt\u2019s very clear that DOGE has more than just access,\u201d Butler says, citing Musk\u2019s recent posts on X highlighting records of specific payments from private organizations, including Lutheran groups<\/a>. \u201cData from those systems is being exfiltrated and disclosed outside of the Treasury Department, which is a quintessential violation of the Privacy Act. You\u2019re taking personal data and disclosing it in unauthorized ways.\u201d <\/p>\n\n\n\n

The move to give Musk\u2019s DOGE access to sensitive information drew a lawsuit Monday from two major federal employee unions<\/a> claiming that the Trump Administration breached the Privacy Act of 1974.<\/p>\n\n\n\n

Legal experts also point to potential breaches of FISMA, which mandates strict security controls for federal IT systems, and CFAA, which criminalizes unauthorized access to government networks. Butler said that CFAA violations carry significant penalties and suggested that a special prosecutor may be necessary to investigate potential criminal wrongdoing.<\/p>\n\n\n\n

Perhaps most concerning, experts say, is DOGE\u2019s potential access to tax return information, which is strictly protected under the Internal Revenue Code\u2019s Section 6103. Treasury\u2019s payment system handles tax refunds, meaning DOGE operatives could have access to sensitive financial data. \u201cAny American filing taxes right now, those payments are getting processed by this system,\u201d Butler warned. \u201cTax return information is among the most protected data in federal law… Even the President does not have the ability to broadly authorize access to tax return information.\u201d<\/p>\n\n\n\n

The code\u2019s stringent restrictions were bolstered after the Nixon Administration was caught using tax records to target political opponents. Under current law, only senior executive officials with a direct need for the data may access it, and even then, only under limited circumstances. \u201cEven when the President is vetting a judicial nominee, the executive branch has only limited access to tax return data,\u201d Butler said. \u201cThe idea that we\u2019re giving access to some college student off the street who has no credentials and no clearance is insane.\u201d<\/p>\n\n\n\n

In 2013, a database from the Office of Personnel Management (OPM) was breached by hackers, which the U.S. government blamed on China. The hack prompted widespread fear that the data could be used to target federal employees in espionage. According to Butler, \u201cthat was a drop in the bucket compared to what we\u2019re talking about now\u201d with DOGE having access to Treasury data. \u201cSpying activity and foreign intelligence happens all the time,\u201d he says. It is not clear whether Musk or others at DOGE have been granted the proper security clearance for the records they are accessing. If they have been granted that clearance, it is not clear if they all underwent the same rigorous vetting normally needed to get it. \u201cThere is national-security-protected information in those systems, and you’re giving it to people who don’t have clearance and who don’t have training and don’t have the relevant authorization,\u201d Butler says.<\/p>\n\n\n\n

Trump told reporters this week that Musk “can\u2019t do and won\u2019t do anything without our approval,” emphasizing that any action taken by Musk’s team would require White House consent. \u201cIf there was something that didn\u2019t have my OK, I\u2019d let you know about it really fast,\u201d he added.<\/p>\n\n\n\n

Trump\u2019s federal buyout program<\/h2>\n\n\n\n

On Jan. 28, millions of federal employees received an email from the Office of Personal Management (OPM) with an unexpected offer to resign by Feb. 6 in exchange for eight months of pay and benefits. Those who refused would be expected to return to the office full-time. <\/p>\n\n\n\n

Trump has framed the offer as a way to \u201cmake the government smaller and more efficient.\u201d But the fine print has sparked significant legal and political scrutiny, with some unions and prominent Democrats warning federal workers against taking it. Bloomberg, citing an unnamed source, reported Tuesday that more than 20,000<\/a> workers have accepted the offer so far.<\/p>\n\n\n\n

Can Trump legally do that?<\/h3>\n\n\n\n

Legal and government experts have raised multiple questions about OPM\u2019s buyout. Some warn that it may violate the Anti-Deficiency Act, a law that prohibits the government from spending more money than Congress has appropriated, and the Administrative Leave Act.<\/p>\n\n\n\n

It is not clear whether such a sweeping federal buyout, with promises of payments eight months into the future, can be legally implemented, particularly as the federal government\u2019s funding is currently set to run out in mid-March. Bednar, the University of Minnesota law professor, says the legal crux of the issue lies in the Anti-Deficiency Act, which strictly limits the government’s ability to promise expenditures that exceed what Congress has allocated.<\/p>\n\n\n\n

The Trump Administration has insisted that the offer will not result in any guaranteed payments beyond the current appropriations period. But Bednar points out that the program\u2019s structure could raise the risk of incurring obligations beyond provisions in the federal budget, potentially violating federal law. \u201cThe Anti-Deficiency Act says that agencies cannot enter into contracts to pay future obligations without the necessary appropriations to do so,\u201d he says. \u201cIt could be a clear violation.\u201d<\/p>\n\n\n\n

Another legal concern, he says, stems from the Administrative Leave Act of 2016, which places strict limits on how federal employees can be placed on leave. The law was designed to prevent government agencies from using administrative leave to sideline employees for extended periods without clear justification. Bednar argues that the Trump Administration\u2019s deferred resignation program, which effectively places employees on leave while continuing to pay them, could also run afoul of this statute. \u201cTo the extent we are talking about putting employees on leave for a period of eight months, this program seems to violate that act,\u201d Bednar says. \u201cNow, there are regulations that were promulgated during the Biden Administration that say this provision only applies to investigative leave. However, if you read the Congressional Record, it seems Congress was truly intent on applying this broadly to all forms of administrative leave.\u201d<\/p>\n\n\n\n

The issue over the buyouts program becomes more complicated with the expiration of current funding in March. OPM has attempted to assuage concerns by clarifying<\/a> that any worker who chooses to leave under the deferred resignation program would still be entitled to back pay, as stipulated by the Government Employee Fair Treatment Act. But some employees have expressed confusion over whether their positions will be exempt from the resignation offer, with unclear exclusions for certain categories of workers, including those in national security and immigration enforcement.<\/p>\n\n\n\n

The uncertainty has left many federal employees wondering whether they would truly receive the promised benefits should they opt to leave. Workers have until February 6 to accept the offer.<\/p>\n\n\n\n

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The AFL-CIO, the Economic Policy Institute and four unions sued the U.S. Department of Labor and Elon Musk’s Department of Government Efficiency<\/a> in D.C. federal court yesterday, , seeking a temporary restraining order to stop DOL leadership from complying with any attempt by DOGE to access DOL data.<\/p>\n\n\n\n

The labor federation, think tank and unions said they’ve learned that the DOL is next on the list for Musk’s team, which has reportedly gained access to computer systems at the U.S. Department of the Treasury, the Office of Personnel Management and the U.S. Agency for International Development. The coalition behind the suit said it is also under the impression that “the Department of Labor and its current leadership are acceding to this takeover.”<\/p>\n\n\n\n

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And let me bring up Gaza, the latest pie tRump wants to stick his fingers in.<\/p>\n\n\n\n

tRump says Gaza would be “turned over”<\/a> by Israel, without the use of U.S. troops. Who believes him? <\/p>\n\n\n\n

Jared Kushner says Gaza’s waterfront could be very valuable.<\/a><\/p>\n\n\n\n

It’s all about the ducats with this group.<\/p>\n\n\n\n

Arab nations condemn <\/a>tRump’s plan. BTW, where would the 2 million people go?<\/p>\n\n\n\n

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