Analysis: How Trump Legally (and Brilliantly) Created DOGE

In a recent analysis, Attorney Tom Renz delved into the legal intricacies of former President Donald Trump's executive order establishing DOGE. Renz, known for his scrutiny of government actions, provided insights into the strategic and legal maneuvers behind this initiative.

Repurposing the USDS

At the heart of Trump's executive order is the repurposing of an existing government agency, the United States Digital Service (USDS). Originally created under the Obama administration to improve government software, the USDS has been rebranded as the United States DOGE Service. This move, as Renz points out, is not merely a name change but a strategic repurposing to align with new priorities.

"Trump did NOT actually create a new agency," Renz noted. "Instead, what he did was repurpose an existing agency - the USDS - into something more useful." This strategy allowed Trump to bypass the need for Congressional approval while ensuring the initiative's legality.

The executive order states, "The United States Digital Service is hereby publicly renamed as the United States DOGE Service (USDS) and shall be established in the Executive Office of the President."

Legal Foundations

The executive order is grounded in existing laws, notably 44 USCS Chapter 36, which focuses on developing technology for the government. By leveraging this legal framework, Trump ensured that the DOGE Service's focus on efficiency and IT evaluation remains within the agency's original mandate.

Renz highlighted the legal ingenuity behind this move: "USDS was already there and funded for the specific purpose. Focusing on efficiency and evaluating the entire government through the lens of the IT that runs it is not really substantially altering the agency - just its focus."

The order mandates a "Software Modernization Initiative to improve the quality and efficiency of government-wide software, network infrastructure, and information technology (IT) systems."

Temporary Organization and Staffing

To drive the DOGE agenda, Trump referenced 5 USC 3161, a law governing temporary organizations within the government. This allowed for the creation of a temporary group, including external experts like Elon Musk, to conduct an initial audit and push the DOGE agenda for 18 months.

"By including this group as temporary, Trump dodged several potential lawsuits," Renz explained. This tactic ensured that the initiative could proceed without the need for Congressional approval for a permanent new entity.

The order specifies, "There is further established within USDS, in accordance with section 3161 of title 5, United States Code, a temporary organization known as 'the U.S. DOGE Service Temporary Organization.'"

Implementation Across Agencies

The executive order mandates the establishment of DOGE teams within every administrative branch agency. These teams, comprising a lead, lawyer, HR person, and engineer, will work under the USDS (DOGE) umbrella to identify waste and improve efficiency.

Renz emphasized the strategic brilliance of this approach: "Looking at the software and how things are managed is a great way to find out where there is waste - particularly when part of the mandate is to ensure efficiency."

The order requires that "each Agency Head shall establish within their respective Agencies a DOGE Team of at least four employees," including a team lead, engineer, human resources specialist, and attorney.

Legal Safeguards

The executive order includes boilerplate language to support the DOGE initiative, disclaim prior conflicting executive orders, and address potential legal conflicts. These measures, as Renz noted, provide additional insulation against political opposition in court.

The order states, "This Executive Order displaces all prior executive orders and regulations, insofar as they are subject to direct presidential amendment, that might serve as a barrier to providing USDS access to agency records and systems as described above."

Conclusion

While Renz expressed reservations about the extent of executive branch authority, he commended the strategic execution of the DOGE initiative. "This order was very well done," he stated, adding, "Trump and Musk have really done a good job strategically here."

The DOGE initiative represents a significant effort to streamline government operations and reduce waste, aligning with the broader MAGA/MAHA mandate. As Renz concluded, "Here’s to hoping these guys follow through... and do everything possible to ensure the American people have the best future imaginable for our kids."

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