DOGE Needs Data To Survive. These Lawsuits Are Trying To Starve It of Information.
Nearly a dozen lawsuits allege that DOGE's access to government payment and personnel systems violates a litany of federal privacy and record-handling laws.
In its brief existence, the Elon Musk–helmed Department of Government Efficiency (DOGE) has proved remarkably effective at one thing: attracting lawsuits.
Over the past several weeks, dozens of lawsuits have been filed challenging every aspect of the new initiative and its activities.
A handful of these lawsuits argue that the very existence of DOGE is illegal and that Musk's role as a non–Senate confirmed "special government employee" with massive authority to set policy is unconstitutional.
By installing Musk and his DOGE team at the former U.S. Digital Service, President Donald Trump has "transformed a minor position that was formerly responsible for managing government websites into a designated agent of chaos without limitation and in violation of the separation of powers," reads a lawsuit filed by 14 Democratic state attorneys general yesterday.
On the other end of the spectrum are the numerous lawsuits that challenge the government-slashing fruits of DOGE: the cancellation of various grants, the partial closure of the U.S. Agency for International Development and dismissal of staffers there, the Trump administration's "fork in the road" deferred resignation program for federal workers, and more.
Sitting in between these two types of lawsuits is yet another set of complaints that challenges DOGE's access to the basic digital infrastructure of government, including the U.S. Treasury Department's payment systems and government personnel data held by the Office of Personnel Management (OPM).
Just Security's litigation tracker lists eight lawsuits challenging DOGE's access to government data, and that appears to be an undercount.
While this third bucket of lawsuits might sound mundane, it likely represents the biggest threat to DOGE's work.
Plaintiffs in these records access lawsuits allege that DOGE's access to record systems is enabling the administration's other lawless activity, like illegally stopping grant payments and "deleting" whole agencies without congressional approval.
Musk himself has said that DOGE's access to things like Treasury payment systems is essential to his mission of rooting out fraud and overpayments and whittling down the federal budget deficit.
Whether or not the billionaire's role in the government is constitutional won't mean much if DOGE is still locked out of real access to federal agency data. Whether the DOGE-inspired cuts to federal spending and staffing can stick is downstream of whether DOGE has enough information to identify payments and personnel worthy of the chopping block.
DOGE's fiercest critics and its most ardent cheerleaders seem to think that access to government data is where the action is at.
Five former Democratic Treasury secretaries argued in The New York Times that giving political appointees and DOGE staffers who "lack training and experience" access to payment systems typically handled by career civil servants is "corrosive to our democracy."
More positively, Samuel Hammond of the Foundation for American Innovation argued in a late January essay that DOGE's inserting into the government's core I.T. systems offered an opportunity for an FDR-style remaking of the federal government that, if successful, "will bring unprecedented transparency to federal spending while laying the infrastructure needed for a significant downsizing in the federal workforce through automations."
While a number of the records access lawsuits raise deeper legal and constitutional claims, their primary complaint is that DOGE staffers and other Trump administration appointees were given access to government data without following the proper notice and procedural requirements contained in a long list of federal privacy statutes.
The most consequential of these lawsuits thus far is the one filed by 19 Democratic state attorneys general in the U.S. District Court for the Southern District of New York that's already resulted in a restraining order preventing DOGE staffers and other appointees from accessing the Treasury's Bureau of the Fiscal Service (BFS).
BFS systems collectively disburse roughly $5.5 trillion in federal payments each year to states, localities, grantees, contractors, and individual beneficiaries of government programs and contain personal information like bank account and Social Security numbers of payees.
These systems have traditionally been operated by career employees at the Treasury Department and access to them is tightly regulated through the 1974 Privacy Act, among other federal laws that control officials' access to government-held personally identifiable information.
While the Privacy Act contains a sweeping restriction on agencies sharing an individual's personally identifiable information without their consent, it also provides a long list of exceptions to that restriction.
As a Congressional Research Service report from 2023 notes, it's generally been left up to the Office of Management and Budget (OMB), an executive agency, to decide when interagency data sharing qualifies for certain exemptions from the Privacy Act.
Still, even when such exemptions are granted for sharing data or changing how records are stored, Congress and the OMB must be notified and the data sharing must be noted in the Federal Register.
The states' lawsuit's primary claim is that no exception in the Privacy Act could reasonably apply to DOGE staffers or other political appointees who'd been given access to BFS record systems and that the notice requirements were clearly not followed.
By acting without any legal authority, the Trump administration violated the Administrative Procedure Act, the states claim.
For good measure, the suing Democratic attorneys general also argue that the Trump administration violated the separation of powers doctrine and the Constitution's Take Care Clause.
In response to that lawsuit, the Trump administration has made a pretty far-reaching constitutional claim of its own—effectively that the courts have no power to limit political appointees' access to Treasury data.
The restraining order "is a remarkable intrusion on the Executive Branch that is in direct conflict with Article II of the Constitution, and the unitary structure it provides," said the administration in a legal filing in the case. "Basic democratic accountability requires that every executive agency's work be supervised by politically accountable leadership, who ultimately answer to the President. A federal court, consistent with the separation of powers, cannot insulate any portion of that work from the specter of political accountability."
A hearing on whether to grant a more permanent preliminary injunction in that case is scheduled for today.
While that case is ongoing, there has also been a long list of lawsuits making very similar legal claims about the access that DOGE has been given to OPM files that contain private information on current and former government employees and job applicants.
In a suit filed Monday, the Electronic Privacy Information Center (EPIC) and an anonymous government employee allege that DOGE's access to OPM record systems containing information on individual employees' pay and benefits violates the Privacy Act, the Administrative Procedure Act, and due process protections of the Fifth Amendment.
DOGE's access to OPM and Treasury records amounts to "the largest and most consequential data breach in U.S. history," the lawsuit claims.
On Tuesday, a lawsuit making near-identical legal claims against DOGE's access to OPM records was filed by the AFL-CIO, a collection of government employee unions, and current and former government employees. Unlike most other DOGE lawsuits, the AFL-CIO complaint names Musk as an individual defendant.
A few weeks prior, a collection of anonymous federal employees sued the OPM for allowing DOGE officials to set up a server that could send emails from the OPM to all career employees.
This was the system the Trump administration used to send all employees the "fork in the road" deferred resignation offer.
Doing so, the anonymous plaintiffs allege, violated the 2002 E-Government Act's requirement that privacy protections be laid out before any new electronic collection of personal information is made.
A handful of other lawsuits have been filed by government employee unions, public university students, and public school teachers raising similar Privacy Act and Administrative Procedure Act claims against DOGE's access to private data and employee records held within the Departments of Labor and Education and the Consumer Financial Protection Bureau.
Save for the states' lawsuit against DOGE's access to Treasury data, as of this writing, none of those lawsuits have resulted in any additional restraining orders being granted.
The administration's counterarguments in those cases have all generally been on more limited grounds about standing or the technical requirements of the relevant privacy protections in play.
Reading through all these lawsuits, one gets the sense of a real clash between two ways of doing things: old-school Washington proceduralism vs. Silicon Valley–style disruption.
The anti-DOGE lawsuits inevitably mention the comparative youth of DOGE staffers given access to government data. Many cite the danger that government records will be fed into AI systems.
In a telling line in a legal filing in the case of anonymous government employees challenging DOGE's access to OPM email servers, the plaintiffs complain that "the sole purpose of these new [DOGE-created] systems was expediency."
DOGE's defenders might well say "exactly." The initiative's mission is to make government more efficient.
The sheer number of laws that DOGE is accused of violating could even be seen as evidence of the initiative's necessity. If the president can't even set up a server to email all his employees at once without getting sued, bureaucratic sclerosis is indeed out of control.
A cross-partisan critique of government in recent years is that everything that the government does is bogged down in endless process for the sake of process.
Whether it's permitting new energy infrastructure or allowing new vape products to come to market, the government process takes forever and any final decision runs the risk of years of litigation. By skipping the process, DOGE has run straight into the litigation.
To some degree, these fights about DOGE's access to data are orthogonal to typical libertarian concerns about the government's size and scope.
Even if DOGE's data access makes it successful at rooting out fraud, waste, and unnecessary federal positions, that can only do so much to bring government spending down.
The president having more control over his executive branch underlings doesn't immediately change how much control the government has over private citizens.
Government officials' easier access to individuals' private data does present privacy and cybersecurity concerns. But that compounds the preexisting privacy problem of the government hoovering up all those data in the first place.
Whether you're hot or cold on DOGE's government-slashing potential, everyone agrees it needs data to survive. Record access lawsuits might starve it of them.
