Legal Challenges and Considerations for the Department of Government Efficiency (DOGE)

The Department of Government Efficiency (DOGE) formerly called the United States Digital Service (USDS) was created by the Executive Branch in 2014 under the Obama administration to modernize government technology and improve digital services (Carter, 2009). While the initiative has played a crucial role in enhancing federal technology systems, it faces several potential legal challenges related to authority, funding, privacy concerns, transparency, regulatory overreach, and administrative law compliance. Since DOGE is not a legislatively authorized federal agency, its operations fall under the Office of Management and Budget (OMB) within the Executive Office of the President (EOP). This lack of formal congressional authorization could lead to questions about its authority and operational scope, particularly if it expands beyond its initial mission (INS v. Chadha, 1983).

     One major legal concern surrounding DOGE is funding and budgetary oversight. Since it operates under the Executive Office of the President, it does not have independent budgetary authority like federal agencies created by Congress. Any expansion in its activities could result in congressional scrutiny over whether it is exceeding the scope of its funding (Clinton v. City of New York, 1998). Congress has historically asserted its power over federal spending, and challenges could arise if DOGE utilizes federal funds beyond what was appropriated for its digital initiatives.

     Another significant legal challenge facing DOGE involves data privacy and mass surveillance concerns. The agency works on modernizing government systems that manage sensitive public information, such as healthcare records, financial data, and cybersecurity infrastructure. This raises Fourth Amendment concerns if its digital modernization efforts lead to expanded government data collection and storage without adequate oversight (Carpenter v. United States, 2018). Privacy advocates have long raised concerns about government surveillance, particularly regarding digital data storage and tracking, which were central issues in ACLU v. Clapper (2015). If DOGE-enabled technologies inadvertently contribute to unlawful mass surveillance, legal challenges could arise under federal privacy laws such as the Privacy Act of 1974.

     Additionally, DOGE is not subject to the same transparency and record-keeping requirements as traditional agencies, raising concerns about compliance with the Federal Records Act (FRA) and the Freedom of Information Act (FOIA). Because it operates within the Executive Office of the President, DOGE does not have independent agency status, meaning that it may not be fully accountable under existing transparency laws (Judicial Watch, Inc. v. National Archives & Records Administration, 2015). If DOGE were found to be improperly maintaining government records or failing to respond to FOIA requests, it could be subject to legal challenges from watchdog organizations.

     Beyond transparency concerns, DOGE may also face challenges regarding overreach into regulatory functions. Since it primarily advises and assists agencies in improving technology systems, it does not have regulatory authority. However, if it begins to influence or direct agency policies, it could face legal scrutiny for acting beyond its advisory role. This issue has been highlighted in West Virginia v. EPA (2022), where the Supreme Court ruled that federal agencies cannot take major regulatory actions without clear congressional authorization. If DOGE were to engage in actions beyond technical assistance, it could be subject to accusations of overstepping its intended function.

     Another legal consideration is whether DOGE’s digital modernization initiatives comply with the Administrative Procedure Act (APA). The APA ensures that federal agencies follow legal protocols in rulemaking and decision-making. If DOGE implements new digital policies that impact federal agencies but bypass formal rulemaking procedures, lawsuits could arise for violating APA requirements (Motor Vehicle Manufacturers Association v. State Farm, 1983). A lack of public notice and input in major digital transformation projects could lead to legal challenges over procedural fairness.

     Intellectual property concerns could also pose legal risks for DOGE. The agency frequently collaborates with private tech firms implement government-wide digital solutions. If contract disputes arise over software licensing, open-source usage, or proprietary technologies, lawsuits could follow. The Google v. Oracle America (2021) case demonstrated the complexities of intellectual property disputes in government technology projects, emphasizing the need for clear legal agreements between the government and contractors.

     One of the most contentious legal debates surrounding digital services in government relates to the Fifth Amendment’s protection against self-incrimination in digital spaces. The foregone conclusion doctrine, established in United States v. Fisher (1976), has been applied in recent cases involving government demands for decryption of electronic devices. In United States v. Fricosu (2012), the court ruled that compelling a defendant to decrypt a laptop did not violate the Fifth Amendment, as the government already knew of the existence and location of incriminating files. This precedent raises concerns about how DOGE-designed systems handle encrypted government data and whether federal employees or citizens could be compelled to disclose access credentials. Similar concerns arose in Apple v. FBI (2016), when the government sought to force Apple to unlock an iPhone used in a terrorism investigation. While Apple resisted, citing privacy and encryption concerns, the case underscored the ongoing legal debate over government access to digital devices.

     Furthermore, the increasing use of artificial intelligence (AI) and biometric technologies in federal digital services raises concerns about government surveillance and due process protections. In Kyllo v. United States (2001), the Supreme Court ruled that the use of thermal imaging technology by law enforcement without a warrant constituted an unlawful search under the Fourth Amendment. If DOGE -backed digital services integrate AI-powered surveillance technologies, it could lead to legal scrutiny over potential constitutional violations.

Conclusion

     DOGE is an initiative for improving federal digital infrastructure, but it faces legal challenges related to authority, funding, transparency, privacy, and regulatory overreach. While existing case law provides some guidance on these issues, future legal challenges will likely shape the role and limitations of DOGE. Congressional oversight, compliance with privacy laws, and adherence to administrative procedures will be essential to ensuring DOGE operates within legal boundaries while modernizing government technology.

Carter, D. L. (2009). Law enforcement intelligence: A guide for state, local, and tribal law enforcement agencies (2nd ed.). Washington, DC: U.S. Department of Justice. 

Carpenter v. United States, 138 S. Ct. 2206 (2018).

Clinton v. City of New York, 524 U.S. 417 (1998).

INS v. Chadha, 462 U.S. 919 (1983).

ACLU v. Clapper, 785 F.3d 787 (2d Cir. 2015).

West Virginia v. EPA, 142 S. Ct. 2587 (2022).

Motor Vehicle Manufacturers Association v. State Farm, 463 U.S. 29 (1983).

Google LLC v. Oracle America, Inc., 141 S. Ct. 1183 (2021).

United States v. Fricosu, 841 F. Supp. 2d 1232 (D. Colo. 2012).

United States v. Fisher, 425 U.S. 391 (1976).