As judges take a closer look at how DOGE is operating, and what authority it exercises across the federal bureaucracy, among the many questions they’re asking is whether DOGE is actually a government agency itself.
The laws could pose a check on what Musk can do with his government-slashing project — both by granting access to what’s happening behind the scenes, and by giving legal challengers tools to potentially reverse some of his most drastic actions.
If DOGE is determined to be a government entity that wields “substantial authority independently of the President,” the public can seek the release of some of its internal records under the Freedom of Information Act.
The Trump administration is saying in court that federal agencies, rather than Musk’s DOGE initiatives, are what’s driving the cuts. That’s quite different from the dramatic, braggadocios, chain saw-waving picture Musk and President Donald Trump have painted in the public arena.
It’s also different from what government whistleblowers have described witnessing as their agencies get slashed and burned.
After retrofitting DOGE onto a preexisting government information technology office known as the US Digital Service, or USDS, the administration dispersed DOGE operatives inside a variety of government agency headquarters across Washington.
Now, in a number of lawsuits, the administration is claiming that DOGE has very little centralized organization or power, that its leaders are merely advisers, and that some of the operatives embedded across the federal bureaucracy are now directly employed by the agencies they’re overhauling.
Declarations in court from multiple government officials claim that Musk has no formal position at DOGE, and no power of his own to execute his vision for shrinking the government. They say his role is just to give counsel to the president.
The Justice Department is leaning on that argument to try to convince courts that they should not order discovery, including the production of internal documents and even depositions. Several judges appear skeptical, often pointing to public reporting and contradictory statements by government officials in other cases. But the administration has, in some cases, found a more receptive audience at the appellate level.
“There is this unusual disjunction between what Musk and his minions are actually doing, and what the administration is saying they’re doing” in court filings, said Ilya Somin, a law professor at George Mason University. “The key question is: Do courts have to accept that description on paper, which could be bogus, or can they peer through to the underlying reality?”
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