It took two weeks for Democrats to settle on how they will resist President Donald Trump‘s administration. They have decided to stand outside federal buildings in freezing weather and kvetch about how a single presidential adviser is destroying American democracy.
For three days now, a who’s who of congressional Democrats have spoken at rallies first in front of the United States Agency for International Development on Monday, then at the Treasury Department on Tuesday, and then the U.S. Capitol on Wednesday, each time decrying Elon Musk and his Department of Government Efficiency as a grave threat to our constitutional order.
Sen. Chris Murphy (D-CT) said Musk has created a “constitutional crisis” and that “we have days to stop the destruction of our democracy.” Senate Minority Leader Chuck Schumer (D-NY) accused Musk of not only taking away people’s privacy and money but “everything we have.”
Rep. Ilhan Omar (D-MN) said we are in the “beginning of a dictatorship,” while Rep. Ayanna Pressley (D-MA) threatened that if Republicans “do not see the light, we will bring the fire.” Not to be outdone, Rep. LaMonica McIver (D-NJ) pleaded with the crowd to “shut down the city,” adding, “We are at war.”
The Democrats’ performance was so hysterically over the top that even CNN’s Abby Phillip remarked, “Democrats agree that Musk is a problem, but listen to them today, and they have a pinata in search of a stick.”
The reality is that Musk’s position in the Trump administration is not unprecedented and the DOGE office President Donald Trump created through executive order on his first day in office already existed.
It was founded in 2014 by former President Barack Obama in the wake of HealthCare.com’s failure as the United States Digital Service as a “digital SWAT team” staffed with the top tech talent from Silicon Valley on limited tours of duty. Working from inside the Office of the President, it helped agencies across the executive branch modernize their tech infrastructure. The office continued to operate through the first Trump administration and former President Joe Biden’s administration.
Trump’s executive order “Establishing and Implementing the President’s Department of Government Efficiency” changed the USDS’s name to DOGE, and expanded its mandate, crucially by directing all agency heads to consult DOGE on hiring DOGE team members within each agency. The positions to be filled included “one DOGE team lead, one engineer, one human resources specialist, and one attorney.”
As employees of each agency, acting at the direction of the Senate-confirmed agency head, these DOGE-recruited operatives have full legal authority to execute Trump’s agenda. While DOGE personnel may have been identified and recruited by Musk, they are not under Musk’s control. They report to each agency head, which is why when some government employee unions sued to stop DOGE access to the Treasury Department’s payment system, neither Musk nor DOGE were named as defendants, but Treasury Secretary Scott Bessent was.
Not everything DOGE team members do is likely to be legal — rushing to get work done produces mistakes. These are young men unfamiliar with federal government protocol and there are reports that many of them are conducting official federal government business over private email. This should be stopped, but it is not a constitutional crisis.
Musk is serving as a “special government employee,” a designation created by Congress in 1962 to make it easier for private sector talent to help the federal government on a temporary basis without having to undergo burdensome financial disclosures or make unnecessary divestitures to avoid conflicts of interest. There are 40,000 SGEs serving in agencies of the federal government today. Anita Dunn recently served as Biden’s senior adviser to the president for communications as an SGE. SGEs are not new, and to the extent valid concerns can be raised about conflicts with Musk’s private sector activities, this is not a constitutional crisis.
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Not everything agency heads do in consultation with DOGE will be clearly authorized by law. There is some doubt the deferred resignation offer made by the Office of Personnel Management to federal employees complies with the intricacies of the Administrative Leave Act. Those details aside, and they will be addressed in federal court, the issue is not a constitutional crisis.
If Democrats think that demonizing one of America’s most successful industrialists as a “dictator” and a “Nazi” is their best path back to popularity, good luck. They might want to check Musk’s favorability ratings, though, because right now, they are better than the Democratic Party’s.
