As Musk reshapes the government, some ask: Where are the guardrails?

Musk with Trump in the Oval Office on Tuesday. (Jabin Botsford/The Washington Post)

In less than a month, Elon Musk’s U.S. DOGE Service has fired thousands of federal employees, frozen billions of dollars in funding, sifted through reams of private data and left many Americans with a simple question: How could this happen?

The breakneck campaign to eviscerate the U.S. Agency for International Development, hobble the Consumer Financial Protection Bureau and give young tech engineers access to sensitive computer systems – among them the trillion-dollar payment systems for the entire government—have left many inside and outside the civil service stunned.

Federal agencies have long been seen as lumbering, rule-bound bureaucracies built on strict chains of command, protocols and safeguards—systems that critics blame for stymieing reform, but which also protect vital social safety nets and national security by slowing or blocking quick change.

Until now.

The Musk-led cost-cutting commission and President Donald Trump are seeking to challenge or circumvent some of the thousands of statutes that set the rules for government operations—rules contained in the 50-title Code of Federal Regulations. Experts in the civil service say the speed and scope of the change is an unprecedented challenge to these guardrails, many of which were never designed for this scenario. Although dozens of lawsuits have been brought against the administration’s actions to dismantle large swaths of the government, judges have issued mixed rulings and there may be limited avenues for employees to challenge decisions to oust them.

“We’re at a point where things are so unprecedented that it’s not even close to what was envisioned by any of the statutes that exist,” said Nick Bednar, a professor at the University of Minnesota Law School who specializes in the civil service. “We do have guardrails. But they assume moderately bad behavior. They don’t assume complete efforts to assault the traditional institutions of government.”

Musk and Trump officials have been able to crash through traditional legal buffers for several reasons.

Some have weak enforcement mechanisms or are untested. Other norms, regulations and statutes are stronger and well-established, but the administration has simply ignored them or declared that the president’s constitutional authority outweighs them, with the hope that courts will eventually side with the White House.

In other cases, there were minimal or absent safeguards to slow access to sensitive data or prevent a new administration from slashing agencies because lawmakers and regulators simply never envisioned that the world’s richest man would seek to radically reshape the federal government from within.

Two of the crucial checks and balances on the executive branch are also largely inoperative at the moment.

Congress and the inspectors general at each agency traditionally monitor overreach and misconduct, and raise concerns about mismanagement.

But Trump fired 17 of the most prominent watchdogs in a Friday night purge four days after taking office, leaving oversight in the hands of acting officials. And the GOP-led Congress has not put the brakes on Trump or Musk so far.

A senior Trump administration official, speaking for the White House and Musk, said in an interview, “We believe everything we’re doing is legal through the powers of Article 2 of the Constitution.”

“We recognize that there will be lawsuits, but every action will be upheld by the Supreme Court,” the official said. He said all of DOGE’s work has the approval of Trump-appointed agency heads.

The administration has defended its actions as necessary to root out fraud and waste in a sprawling bureaucracy it says is bloated. In an executive order, the White House asserted that Trump has the authority to fire career officials—despite a 1978 law prohibiting a president from doing so without a legitimate reason—and cited his “power to remove subordinates” in Article II of the Constitution.

In the long term, it’s still possible that many existing fire walls could stop or slow Musk’s efforts to collect mountains of data and slash thousands of federal jobs. Unions and Democratic-aligned groups are trying to block wide swaths of Trump’s agenda in the courts, and federal judges have paused some mandates to freeze spending and limited DOGE’s access to some sensitive Treasury data. The court rulings so far have allowed the administration to move forward with a mass offer to employees to quit and be paid through September.

But many legal battles could take years to resolve. And in the short-term, a radical restructuring of the size and scope of the government has already begun—and may be difficult to undo.

“This is a massive assault on congressional lawmaking power,” said Rep. Jamie Raskin (Maryland), the top Democrat on the House Judiciary Committee. He said he hopes the courts “use the mechanisms they have in place to stop the damage before it becomes irreparable.”

Skirting regulations

Musk and Trump officials have shrewdly used the levers of power to skirt many rules and regulations—in part because those rules never accounted for the manner in which this White House would use them.

For instance, most high-level jobs for political appointees require extensive conflict-of-interest disclosures, background checks and other vetting or Senate confirmation. Musk and his team have largely avoided that necessity by serving as “special government employees.”

That’s an established role—but one that’s usually applied to presidential advisers who serve for short periods, with or without payment. Under President Joe Biden, top adviser Anita Dunn served under that title. So did Biden’s covid-19 task force. By design, these positions don’t face public conflict-of-interest scrutiny since Congress assumed that “we need their services more than we are worried about conflicts,” said Walter Shaub, a former director of the Office of Government Ethics, “or any conflict would not affect someone’s decision-making.”

But Musk is doing a much different job while benefiting from the lack of vetting and disclosure—a scenario never envisioned when lawmakers created the position of special government employee in 1962. The law does require Musk to file a financial disclosure report showing his assets and sources of income, which the White House has said he is doing. However, the disclosures can remain confidential. And the law allows the administration to grant special government employees a waiver for conflicts of interests that would otherwise limit their work. The White House did not say if Musk has received one.

“Anita Dunn wasn’t shutting agency doors and getting into classified material,” said Anne Joseph O’Connell, a Stanford University law professor who specializes in the federal bureaucracy.

Musk’s team has also drawn scrutiny to gaps in laws intended to prevent easy access to sensitive government data and payment systems.

After a cyberattack a decade ago against the personnel data of 21 million federal employees and retirees held by the Office of Personnel Management, Congress strengthened the government’s cyber defenses, mandating strict controls for federal IT and making unauthorized access to networks a criminal offense.

Yet these statutes were not designed with DOGE in mind, experts said. Privacy laws were written to stop and punish intentional acts by government employees—or attacks by foreign governments.

“We were expecting a frontal attack—malicious hackers looking for misuse by federal employees,” said Mary Ellen Callahan, who was chief privacy officer at the Department of Homeland Security from 2009 to 2012. “But full-scale taking over of the data by an allegedly third party? That was never contemplated with the basic premise of these laws.”

The reality, though, is that Cabinet secretaries—even acting ones—report to the president, who has the right to demand that Musk’s team be allowed in the door.

Trump officials have found ways to use old laws to their advantage to enact massive changes to the government that Congress did not anticipate when it enacted the post-Watergate civil service law in 1978. The Civil Service Reform Act allows a president to exempt individual employees from the most common category of career civil servants to carve out exceptions to the competitive hiring process for hard-to-fill jobs, for example in science, technology and engineering.

Trump is seeking to use that authority to reclassify tens of thousands of career civil servants so they can be stripped of job protections—making it easier to replace these nonpartisan officials with political loyalists.

“We just never envisioned that someone would use that discretion to gut the civil service,” Bednar said.

Musk and his team have also taken advantage of legal bulwarks with unclear or weak enforcement standards.

Under the law Congress passed after the cyberattack on OPM, for example, the enforcement mechanisms for fighting an intrusion into an employee’s personal information are largely internal—meaning that someone whose data is improperly accessed has limited rights to sue the government. In cases of data breaches by government employees, inspectors general investigate. Every agency has a privacy officer to guard against such intrusions.

But just one, the Department of Homeland Security, has independent authority to investigate breaches of other government departments, and it is rarely used. The cybersecurity laws were designed to protect the government against foreign adversaries.

Other federal statutes, including the Privacy Act and the Internal Revenue code, limit access to taxpayer data, personnel records and other sensitive information that is supposed to be seen only on a need-to-know basis by a small number of federal employees with top security clearances. It is unclear what level of clearance the DOGE team has, if the president granted it under his wide latitude to do so—and if the team is authorized to access sensitive information.

In another case where guardrails have not been effective so far, DOGE has ignored a law that forbids a federal agency from being abolished or folded in somewhere else unless Congress signs off.

Lawmakers must demand action to enforce the law. And Republicans, who control both chambers, have done nothing to stop Musk from moving to put thousands of USAID employees on paid leave and to recall nearly all of the humanitarian aid agency’s workers abroad.

A judge temporarily halted those actions, but it’s unclear what the courts will ultimately rule. In the meantime, Secretary of State Marco Rubio, the former GOP senator, said he would work with lawmakers to overhaul the aid agency and merge it into the State Department.

“They’re trying to shut down programs by turning off the faucet and removing the people who administer them, wiping the functions out,” said Donald Kettl, an emeritus professor at the University of Maryland who studies the civil service. “These were all things that before three weeks ago were not in the executive realm.”

The White House is quickly following a similar blueprint at CFPB, a watchdog formed in the years after the 2008 financial crisis to protect Americans from financial scams and corporate abuse that the White House has blasted as a “woke” agency whose “weaponization ends right now.”

Russell Vought, the White House budget chief appointed as acting director of the board, ordered employees to stay home, halted the agency’s ongoing investigations and shut off access to millions of dollars in federal funds. Republicans in Congress have been silent.

In theory, another law on the books that could hamper Trump’s plans is the Antideficiency Act, an administrative statute enacted in 1884 that prohibits the government from spending money before Congress appropriates it.

The White House has potentially run afoul of that law by promising any federal employee who has accepted its offer to quit a full salary until the end of the fiscal year on Sept. 30—even though the government is operating under a temporary budget that expires in mid-March.

But the Antideficiency Act has rarely been enforced. The Government Accountability Office, the research and audit arm of Congress, is tasked with investigating potential violations. While the law stipulates that federal employees who “knowingly and willfully” violate it “shall be fined not more than $5,000, imprisoned for not more than 2 years, or both,” according to the statute, no one has ever been prosecuted or convicted.

The Trump administration has also potentially found another way to short-circuit legal challenges to the resignation offer. A judge last week denied a request to halt the plan, not on the merits of the law but because he said the unions that sued needed to exhaust all “administrative remedies” first. Last week, however, the White House fired Democrats on the boards of two small agencies that hear appeals from federal employees, shifting the balance of power to a deadlock and all but blocking that potential administrative route of relief.

Various White Houses going back to the Clinton administration have told agencies that the Antideficiency Act and other decisions by the GAO are not binding on the executive branch.

As the White House has placed thousands of federal employees on paid leave—a tactic, many believe, to force them out of the job—it has also found a legal loophole to dodge a bipartisan law Congress passed in 2016 ordering agencies to curtail the widespread use of what is known as administrative leave.

Regulations issued at the end of the Biden administration limit paid leave to 10 days starting with the new fiscal year on Oct. 1—but also specify that restriction applies only to employees who are under investigation.

So Trump officials can keep masses of career employees on paid leave indefinitely as long as they’re not under investigation, personnel experts said. They argue that was not Congress’s intent. But for now, that regulation is set to stand.

As Trump and Musk move to shrink the workforce, layoffs—known as “Reductions in Force” – began last week. The government is required by law to take into account an employee’s length of service, veterans’ status and three years of performance appraisals when deciding who to lay off. In many cases, it must also find comparable roles for those whose jobs are eliminated.

But the administration is likely to get around this part of the law by eliminating whole offices—for example, those carrying out diversity, equity and inclusion policies. In that case, agencies could make the case that entire federal operations are abolished and say that comparable jobs do not exist.

In several other cases, clear laws on the books should have slowed Trump’s and Musk’s moves to reshape the government—but the White House has declared an imperative to go around them.

When the White House personnel office ousted 17 inspectors general, it did not give Congress the 30 days’ notice that the law governing federal watchdogs requires, nor did it provide a reason for the dismissals. A group of inspectors general filed a lawsuit against the administration last week.

The White House has not cited its authority to carry out the firings, but experts say it may be relying on a 2020 Supreme Court decision suggesting that the president can summarily remove those in presidentially appointed positions unless they are part of a multimember commission.

In another case, the administration has declared that Trump can overrule the 1978 civil service law, which serves as the foundation of the modern federal workforce. The law provides job protections to senior executives, prosecutors and other career officials. But Trump has cited a sweeping claim of executive authority and fired many of them anyway.

Some dismissed civil servants are preparing lawsuits against the administration, citing the guardrails that Congress erected to protect their jobs. Legal experts are closely watching to find out if they will survive.