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The second Trump Administration has wasted little time in testing the boundaries of executive authority. While many of the President’s supporters are cheering him on, some legal experts see a constitutional crisis unfolding, as many of Trump’s moves raise urgent legal and constitutional questions that could take years to fully unravel.
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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’s recent actions—attempting to dismantle independent agencies, granting private individuals access to sensitive government systems, and offering unprecedented federal employee buyouts—are already triggering legal challenges and intense debate over the limits of presidential power.
Here are some of the ways Trump’s proposals are testing legal boundaries, and what specific laws some experts say the Administration may be breaking.
Dissolving USAID
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.
USAID has long been a part of U.S. foreign policy, providing humanitarian aid, promoting global health initiatives, and supporting democratic governance in some of the world’s most volatile regions. It administers billions of dollars in aid annually, addressing crises ranging from natural disasters to health pandemics. Supporters say the agency’s 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’s 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 “America First” agenda, claiming it prioritizes globalism over American interests. “It’s been run by a bunch of radical lunatics, and we’re getting them out, and then we’ll make a decision” on its future, he said on Feb. 2.
Can Trump legally do that?
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. “The President does not have constitutional authority to ignore a statute that establishes a department or agency,” says Saikrishna Prakash, a law professor at the University of Virginia.
USAID’s current legal status as an independent entity was solidified through the Foreign Affairs Reform and Restructuring Act of 1998, which restricts the president’s 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. “The Clinton Administration chose to enshrine USAID as an independent agency,” he says, “and the authority to reorganize it has now lapsed. The President has no authority to reorganize USAID at this point.”
Prakash noted that Trump could refuse to spend the agency’s 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’s authority to withhold funds appropriated by Congress. Trump’s legal team would argue that the “Constitution gives the President a right to impound funds” and cite how Thomas Jefferson halted funding for gunboats to patrol the Mississippi River, Prakash says.
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.
On Monday, Democrats rallied outside of USAID’s office, after the agency’s 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 “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 disbanded by an act of Congress,” he added.
Granting Elon Musk’s DOGE access to sensitive data
Days after his swearing-in, Treasury Secretary Scott Bessent granted Elon Musk 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.
But the Treasury Department’s payment records are more than a federal checkbook; they are part of a highly sensitive system that processes the country’s 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.
While proponents argue that Musk’s team needs access to the data to root out inefficiencies and reduce government spending, critics are alarmed by the implications of giving a billionaire—whose companies, such as Tesla and SpaceX, hold substantial government contracts—and 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.
Can Trump legally do that?
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.
Alan Butler, a lawyer and executive director of the Electronic Privacy Information Center, argues that DOGE’s access likely constitutes an egregious violation of the Privacy Act, which prohibits unauthorized disclosures of personal data. “It’s very clear that DOGE has more than just access,” Butler says, citing Musk’s recent posts on X highlighting records of specific payments from private organizations, including Lutheran groups. “Data from those systems is being exfiltrated and disclosed outside of the Treasury Department, which is a quintessential violation of the Privacy Act. You’re taking personal data and disclosing it in unauthorized ways.”
The move to give Musk’s DOGE access to sensitive information drew a lawsuit Monday from two major federal employee unions claiming that the Trump Administration breached the Privacy Act of 1974.
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.
Perhaps most concerning, experts say, is DOGE’s potential access to tax return information, which is strictly protected under the Internal Revenue Code’s Section 6103. Treasury’s payment system handles tax refunds, meaning DOGE operatives could have access to sensitive financial data. “Any American filing taxes right now, those payments are getting processed by this system,” Butler warned. “Tax 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.”
The code’s 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. “Even when the President is vetting a judicial nominee, the executive branch has only limited access to tax return data,” Butler said. “The idea that we’re giving access to some college student off the street who has no credentials and no clearance is insane.”
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, “that was a drop in the bucket compared to what we’re talking about now” with DOGE having access to Treasury data. “Spying activity and foreign intelligence happens all the time,” 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. “There 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,” Butler says.
Trump told reporters this week that Musk “can’t do and won’t do anything without our approval,” emphasizing that any action taken by Musk’s team would require White House consent. “If there was something that didn’t have my OK, I’d let you know about it really fast,” he added.
Trump’s federal buyout program
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.
Trump has framed the offer as a way to “make the government smaller and more efficient.” 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 workers have accepted the offer so far.
Can Trump legally do that?
Legal and government experts have raised multiple questions about OPM’s 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.
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’s 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.
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’s structure could raise the risk of incurring obligations beyond provisions in the federal budget, potentially violating federal law. “The Anti-Deficiency Act says that agencies cannot enter into contracts to pay future obligations without the necessary appropriations to do so,” he says. “It could be a clear violation.”
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’s deferred resignation program, which effectively places employees on leave while continuing to pay them, could also run afoul of this statute. “To the extent we are talking about putting employees on leave for a period of eight months, this program seems to violate that act,” Bednar says. “Now, 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.”
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 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.
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.
