The second term of the Trump Administration is rapidly testing the boundaries of executive authority. While Trump’s supporters enthusiastically endorse his actions, legal experts are sounding alarms about a looming constitutional crisis, as numerous presidential decisions raise profound legal and constitutional questions that could take years to address.

During his initial presidency, Trump often found himself at odds with both the judicial system and Congress over claims of executive overreach. This time, he seems ready to adopt an even more aggressive stance. Recent actions aimed at undermining independent agencies, providing private companies access to sensitive government data, and suggesting unprecedented buyouts for federal employees have already ignited legal disputes and intense discussions about the extent of presidential powers.

Let’s delve into some of Trump’s current proposals that are testing legal boundaries, and identify specific laws that experts believe his administration may be contravening.

Abolishing USAID

The future of the U.S. Agency for International Development (USAID) hangs in the balance as Trump and Elon Musk hint at plans to effectively dismantle the agency by stripping it of its independence and bringing it under the State Department’s authority.

USAID has been a cornerstone of U.S. foreign policy, facilitating humanitarian aid, promoting global health initiatives, and supporting democratic governance in some of the world’s most volatile regions. The agency allocates billions in assistance annually, responding to crises ranging from natural disasters to health emergencies. Advocates argue that its work, spanning over 120 countries, has not only alleviated suffering but has also fostered long-term relationships that enhance U.S. national security. However, in recent years, USAID has become a target for Trump’s broader agenda to eliminate federal programs he views as ineffective or wasteful. He has criticized the agency for allegedly favoring global interests over American ones, stating, “It’s been run by a bunch of radical lunatics, and we’re getting them out, and then we’ll make a decision” about its future.

Can Trump do this?

Legal experts argue that Trump lacks the constitutional authority to abolish USAID without Congressional approval. While the agency was created through an executive order by President John F. Kennedy in 1961, it was later established as a separate government entity by Congress in 1998. This distinction suggests that Congress retains the ultimate authority to terminate the agency or to integrate it into the State Department, as proposed 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 is further reinforced by the Foreign Affairs Reform and Restructuring Act of 1998, which restricts the president’s ability to unilaterally dissolve the agency, according to Nick Bednar, a law professor at the University of Minnesota. He argues that any attempt to disband USAID would require new legislation from Congress. “The Clinton Administration ensured USAID’s independence,” he notes, “and the authority to reorganize it has now lapsed. The President cannot reorganize USAID at this time.”

Prakash points out that while Trump could opt not to allocate the agency’s foreign aid funds, such a choice would likely conflict with the Impoundment Control Act of 1974, which mandates presidential approval to withhold discretionary spending. This could lead to a Supreme Court case regarding the president’s authority to withhold funds appropriated by Congress. Trump’s legal team might argue that the “Constitution grants the President the right to impound funds,” referencing Thomas Jefferson’s decision to halt funding for Mississippi River gunboats, Prakash explains.

He also mentioned that the Trump administration might seek Congressional backing for legislation to dissolve USAID, although gaining support from 60 senators to overcome a likely filibuster would be a formidable challenge.

Democrats rallied outside USAID’s office on Monday after employees were instructed to work remotely. Representative Don Beyer, whose district in Northern Virginia has a large federal employee population, asserted that the law is clear, stating, “What Trump and Musk have done is not only wrong; it is illegal.”

“USAID was established by an act of Congress and can only be dissolved by an act of Congress,” he added.

Elon Musk’s DOGE and Sensitive Data Access

Shortly after taking office, Treasury Secretary Scott Bessent granted Elon Musk and his Department of Government Efficiency (DOGE) team access to the federal payment system, which oversees over $5 trillion in annual federal disbursements, including Social Security, Medicare, and tax refunds.

However, the Treasury Department’s payment records involve more than just federal transactions; they include a highly sensitive infrastructure that processes crucial transactions. This encompasses personal data from taxpayers, beneficiaries of federal programs, and contractors, raising concerns about the potential misuse or mishandling of such data.

While proponents argue that Musk’s team needs access to this data to pinpoint inefficiencies and reduce government spending, critics express alarm at the implications of allowing a billionaire—whose companies, including Tesla and SpaceX, hold substantial government contracts—access to such sensitive information. Some have even questioned whether Musk’s oversight could be used to politically manipulate or withhold payments, given his known advocacy for reduced federal spending and his business interests tied to government contracts.

Is this legal?

Legal experts assert that granting Musk and his team access to sensitive governmental data may breach several federal laws, including the Privacy Act of 1974, the Federal Information Security Modernization Act (FISMA), and the Computer Fraud and Abuse Act (CFAA), along with strict taxpayer privacy protections under the Internal Revenue Code.

Alan Butler, a lawyer and executive director of the Electronic Privacy Information Center, contends that DOGE’s access could signify a significant violation of the Privacy Act, which forbids unauthorized disclosures of personal information. “It’s clear that DOGE has more than just access,” Butler remarks, pointing to Musk’s recent posts on X that showcased 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 ways.”

The decision to provide Musk’s DOGE access to sensitive information has led to a lawsuit from two major federal employee unions, claiming that the Trump Administration violated the Privacy Act of 1974.

Legal experts also point to potential violations of FISMA, which mandates rigorous security protocols for federal IT systems, and CFAA, which penalizes unauthorized access to government networks. Butler noted that breaches of the CFAA could result in severe penalties and suggested that a special prosecutor may be necessary to investigate possible criminal conduct.

Perhaps most alarming is the concern that DOGE could access tax return information, which is strictly protected under Section 6103 of the Internal Revenue Code. Since the Treasury’s payment system manages tax refunds, DOGE personnel might potentially obtain sensitive financial data. “Every American filing taxes right now has their payments processed by this system,” Butler warned. “Tax return information is among the most safeguarded data in federal law… Even the President cannot broadly authorize access to tax return information.”

These strict restrictions were reinforced after the Nixon Administration misused tax records against political opponents. Currently, only senior executive officials with a direct necessity for the information 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 idea of granting access to someone lacking credentials or clearance is preposterous.”

In 2013, a breach of the Office of Personnel Management (OPM) database, blamed on Chinese hackers, intensified fears that such information could be exploited for espionage against federal employees. Butler stated, “that was just a drop in the bucket compared to the current situation,” with DOGE potentially accessing Treasury data. “Spying activities and foreign intelligence occur regularly,” he noted. It remains uncertain 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 whether they underwent the same stringent vetting typically 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.

This week, Trump reassured reporters that Musk “can’t and won’t do anything without our approval,” emphasizing that any actions taken by Musk’s team would necessitate White House consent. “If something didn’t have my OK, I’d let you know about it very quickly,” he declared.

Trump’s Federal Buyout Scheme

On January 28, millions of federal employees received an unexpected email from the Office of Personnel Management (OPM) offering them a chance to resign by February 6 in exchange for eight months of pay and benefits. Those who chose not to resign would be required to return to the office full-time.

Trump has framed this offer as a strategy to “streamline and enhance government efficiency.” However, the specifics of the proposal have raised considerable legal and political concerns, with some unions and prominent Democrats advising federal workers against accepting it. Citing an unnamed source, Bloomberg reported on Tuesday that over 20,000 employees have opted to accept the offer so far.

Is this legal?

Legal and governmental experts have raised various concerns regarding the legality of OPM’s buyout plan. Some contend it may conflict with the Anti-Deficiency Act, which prohibits the government from spending beyond what Congress has allocated, as well as the Administrative Leave Act.

It is still unclear whether such a sweeping federal buyout, promising payments eight months into the future, can be legally executed, especially with the federal government’s funding set to expire in mid-March. Bednar, the University of Minnesota law professor, emphasizes that the core issue relates to the Anti-Deficiency Act, which strictly limits the government’s capacity to make financial commitments beyond congressional appropriations.

The Trump Administration has insisted that the offer will not lead to guaranteed payments beyond the current appropriations period. However, Bednar warns that the program’s structure could pose a risk of incurring obligations beyond budgeted provisions, potentially violating federal law. “The Anti-Deficiency Act states agencies cannot enter into contracts for future payments without the necessary appropriations,” he cautions. “This could represent a clear violation.”

Another legal concern revolves around 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 durations without just cause. 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 talking about placing employees on leave for eight months, this program seems to violate that act,” he states. “Although there were regulations introduced during the Biden Administration that limit this provision to investigative leave, the Congressional Record suggests that Congress intended this to apply broadly to all types of administrative leave.”

The situation surrounding the buyout initiative becomes even more intricate with the impending expiration of current funding in March. OPM has attempted to clarify concerns by stating that any employee who chooses to leave under the deferred resignation program will 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 will actually receive the promised benefits if they decide to resign. Workers have until February 6 to make their decision regarding the offer.