The U.S. DOGE Service seems to be everywhere these days—at eighteen agencies and counting, according to reports. “USDS” or “DOGE” has reportedly driven many of the Trump administration’s most controversial actions, including the administration’s efforts to slash federal spending and disrupt the civil service. And yet substantial questions remain as to what, exactly, USDS is: an agency? An advisory body? Something in-between? Classifying USDS carries implications for, among other things, whether it is subject to the Freedom of Information Act and the Administrative Procedure Act and, indeed, whether it may properly exert power at all.

A recent decision by the U.S. District Court for the District of Columbia may shed light on the question of USDS’s legal status. In AFL-CIO v. Department of Labor, a coalition of labor unions and nonprofits sought a temporary restraining order barring so-called “DOGE Team” members from accessing records systems at the Department of Labor, the Department of Health and Human Services, and the Consumer Financial Protection Bureau. The Privacy Act generally permits agencies to disclose records to agency employees. According to the plaintiffs, however, certain team members were improperly detailed to their respective agencies, and so could not access agency records without violating the Privacy Act.

Understanding why those employee details may be improper requires some background on the Economy Act, which enables agencies to provide goods and services to each other. The Economy Act permits the head of an “agency” to order goods and services from “another agency” in return for reimbursement. As we’ve previously explained, Economy Act agreements with agencies are a primary means by which the Trump administration is funding USDS operations, and those agreements serve as the basis by which USDS is detailing its employees to those agencies. As we’ve also explained, if USDS solely advises and assists the President and thereby does not qualify as an “agency” under myriad federal laws like FOIA, then it is not an “agency” under the Economy Act and cannot enter into such agreements. 

Emphasizing the preliminary nature of its conclusion, the court in AFL-CIO held that USDS appeared to qualify as an agency under the Economy Act—but for reasons that create substantial problems for USDS. Finding “scant case law on the Economy Act’s definition of agency,” the court relied on cases interpreting the definitions of agency in FOIA, the APA, and the Privacy Act. “Under those definitions,” the court reasoned, “USDS … appears to be an agency.” USDS “appears to do much more than advise and assist the President”: “it is apparent that USDS is coordinating teams across multiple agencies with the goal of reworking and reconfiguring agency data, technology, and spending.” “That is not the stuff of mere advice and assistance,” the court concluded. But the court also observed that the government seemed to “shy away from other, similar definitions of agencies,” out of an apparent “desire to escape the obligations that accompany agencyhood—subjection to FOIA, the Privacy Act, the APA, and the like—while reaping only its benefits.” The court noted that “USDS becomes, on defendants’ view, a Goldilocks entity: not an agency when it is burdensome but an agency when it is convenient.”

The Trump administration’s view is untenable. USDS is either an agency or it is not. And if USDS, as seems apparent, is doing more than advising the President and is instead wielding independent authority, then it faces a more fundamental challenge to its existence: no statute created USDS or vested it with the power it now appears to wield. Indeed, even the government seems to have conceded that USDS lacks “legal authority” to take some of the actions that litigants have challenged. As the Supreme Court recently reiterated, “[a]dministrative agencies are creatures of statute,” not executive action alone, and “possess only the authority that Congress has provided.” Agencies “literally ha[ve] no power to act … unless and until Congress confers power upon [them].” Litigants might therefore use the court’s decision in AFL-CIO to challenge USDS’s asserted authority over agencies.

Moreover, even if, as the AFL-CIO court preliminarily found, USDS does not solely advise and assist the President and could therefore be described as an agency under the Economy Act, litigants may still argue that USDS cannot provide goods and services pursuant to Economy Act agreements. Under USDS’s Economy Act agreements, other agencies are the “requesting agencies” that are ordering goods and services from USDS, the “performing agency.” The requesting agencies are then reimbursing USDS for the goods and services. However, as the Government Accountability Office has concluded, “the Economy Act does not give a performing agency any authority that it would not otherwise have.” Given that Congress has provided no authority to USDS at all, USDS does not “otherwise have” any “authority” to do anything. USDS therefore cannot participate as a performing agency in Economy Act agreements.

In other words, the Trump administration’s attempts to structure USDS to avoid legal accountability seem to have only created more problems. Far from being a Goldilocks entity, USDS may be too hot and too cold—wielding authority Congress never gave it, and yet still unable to form the Economy Act agreements that provide the bulk of its funding and by which it details its employees. Litigants will continue to challenge these fundamental defects in USDS’s structure and operations.

John Lewis is the Deputy Legal Director at Governing for Impact. Daniel Jacobson is the former General Counsel of the Office of Management and Budget.