Written by: Will Boalt
The newly founded Department of Government Efficiency (DOGE) faces lawsuits shortly after it was signed into effect under executive order by President Trump. Among the Department’s intentions are that of modernizing federal technology in an attempt to increase government efficiency and productivity. The department has replaced the already established United States Digital Service (USDS). As under section three of the executive order, President Trump renamed and reorganized the USDS to now reflect “United States DOGE Services.” DOGE was originally set to be headed by both Vivek Ramaswamy and Elon Musk. However, Ramaswamy has since left the organization, with speculations of him making a run for Governor of Ohio, leaving the responsibility of the department to that of Musk exclusively. While there were several lawsuits filed after the executive order, three of the suits center on claims that DOGE is in violation of the Federal Advisory Committee Act (FACA).
What is FACA?
The Federal Advisory Committee Act (FACA), enacted in 1972, is meant to ensure that all federal advisory committees (FACs) that are formed are providing advice that is not only objective, but more importantly, accessible to the public. An example of a FAC is the Federal Advisory Council, which advises on banking matters for the Federal Reserve Board. The Act provides a systematic process which operates to formalize the oversight of such advisory committees. This allows a process for not only the establishment and operation of such organizations, but also for the supervision and potential termination of the specific advisory committees. The FACA is enforced across the government by the General Services Administration (GSA). This has been the case since 1976, when the administrator of GSA was allocated such authority under Executive Order 12024. However, it should be noted that the FACA does not apply to any organization that Congress expressly deems exempt.
The Lawsuits
Of the three lawsuits, one was brought by a combination of numerous public interest groups, another from a nonprofit advocacy organization, and finally one from a non-profit public interest law firm. According to the lawsuits, DOGE is an advisory committee. This means it is consisting of non-federal members and yet was established by a federal agency. Under this interpretation, it is therefore subject to the FACA. These suits were each filed in the United States District Court for the District of Columbia. All three suits also name as co-defendant the Office of Management and Budget (OMB). OMB is listed in each because DOGE is supposed to work with the OMB to analyze how they can restructure various federal agencies to make them more effective or to even restructure them. Two of the suits also name President Trump and DOGE explicitly as defendants. One suit also lists Elon Musk and even Vivek Ramaswamy as additional co-defendants. The complaints again however, center on the notion that DOGE is in violation of the FACA.
To be in accordance with the FACA means that the meetings between the federal agency and the advisory committee are primarily open to the public. Additionally, the meeting minutes and reports must also be made available to the public. The public therefore shall be notified of such meetings through the Federal Registrar beforehand. Also, the committee has to consist of balanced points of view. Essentially, to be in violation of the FACA, the government agency has to be getting advice from an advisory committee without following the transparency standards set by the FACA.
One of the suits contends that such federal restructuring efforts on behalf of DOGE began before the department was signed under executive order. The suit alleges that representatives of OMB and DOGE were sent to various federal agencies to begin preliminary interviews before President Trump took office. They therefore seek to enjoin DOGE from continuing operations until they are complying with the FACA.
What’s Next
The fact that DOGE was signed under executive order complicates these complaints. This is because if DOGE is considered a part of the government, or “within” the government, as the executive order would suggest, then it isn’t a Federal Advisory Committee. Therefore, it would not be subject to the transparency standards required of the FACA. But if some members of DOGE, such as Musk, remain outside the government, then the lawsuits tentatively will stand. Consequently, it should be noted that if DOGE meets the criteria of a government office rather than a FAC, then the lawsuits are essentially moot.
Additionally, The United States Department of Treasury is now also facing a lawsuit over DOGE’s access to the Treasury’s payment system. This system contains the sensitive information of Americans extending from their Medicaid to even Social Security, among others. The Trump administration therefore has agreed to limit DOGE’s access to this information. This comes at a time when DOGE is garnering increasing attention for its active role in the new Trump administration. Therefore, if DOGE is deemed an FAC, then the ability of the public to access DOGE’s internal discussions could provide an insightful understanding into how DOGE is conducting their efforts. Efforts that have already impacted areas of the government, such as the minimizing and potential elimination of the U.S. Agency for International Development. As a result, the outcome of whether DOGE is an advisory committee will affect not only the results of any future contentions with DOGE, but also how the Department is governed moving forward.
Sources:
American Public Health Association et al. v. Office of Management and Budget et al., case number 1:25-cv-00167.
Anna Bower, Advocacy Groups File Four Lawsuits Against Musk-Led DOGE, The Lawfare Institute (January 20, 2025).
Establishing and Implementing The President’s “Department of Government Efficiency,” The White House (January 20, 2025).
Exec. Order No. 12024 – Relating to the transfer of certain advisory committee functions, National Archives (August 15, 2016).
Federal Advisory Committee Act (FACA) Management Overview, U.S. General Services Administration (December 30, 2024).
Gabe Whisnant, US Treasury Sued Over DOGE’s Access To Sensitive Information, Newsweek (February 3, 2025).
Jeff Stein, Elon Musk’s DOGE sued minutes after Trump inauguration, The Washington Post (January 20, 2025).
Jerald Lentini et al. v. the Department of Government Efficiency et al., case number 1:25-cv-00166.
Lucien Bruggeman, Laura Romero, Flurry of lawsuits target new Department of Government Efficiency as Trump is sworn in, ABC News (January 20, 2025).
Public Citizen Inc. et al. v. Donald J. Trump et al., case number 1:25-cv-00164.
Veterans, Teachers, Public Health Professionals, Consumer Advocates, and Watchdog Groups File Suit Challenging the DOGE’s Secret Operations, Democracy Forward (January 20, 2025).