- The USAID has become one of Elon Musk's top targets in his bid to cut government spending.
- Musk's moves to dismantle federal agencies like USAID are totally illegal, constitutional law experts say.
- Congressional authority is needed to shut down a federal agency, the experts said.
Elon Musk's efforts to scrap federal government agencies like the US Agency for International Development are indisputably illegal, constitutional law experts say.
Without congressional action, Musk — the billionaire tech titan who is now serving in the Trump administration — nor President Donald Trump, has the legal authority to do so, the experts told Business Insider. And so far, the Republican-controlled Congress has taken no public action to push back against the move.
The humanitarian aid agency known as USAID announced on Tuesday it was set to place nearly all of its direct-hire workforce around the globe on administrative leave at the end of the week, just a day after Musk said in an X post that he "spent the weekend feeding USAID into the wood chipper."
"Elon Musk's claim that he has President Trump's go-ahead to shut down USAID is flatly illegal and unconstitutional," said Laurence Tribe, a Harvard Law School professor.
"In our system of government, only Congress wields the power of the purse and the power to create or destroy entire agencies to disburse the money the government collects in taxes or borrows from bondholders," said Tribe.
Not even the president has the unilateral authority to take an ax to federal agencies the way Musk says he is, the legal scholar said.
"The president cannot do this directly and so he can't delegate any authority to do it to Musk or anyone else," Cornell Law School professor Michael Dorf said.
As the head of the Department of Government Efficiency or DOGE, Musk, with the backing of Trump, has made it his newfound mission to reduce spending by the federal government — and USAID has become one of Musk's top targets.
President John F. Kennedy initially created USAID through an executive order in 1961, and Congress later formally established it as an independent agency through the Foreign Affairs Reform and Restructuring Act of 1998.
"Congress could cancel it, but the president can't unilaterally shutter it," Dorf said of USAID, adding, "This is blatantly unlawful and a violation of Trump's oath to take care that the laws are faithfully executed."
Earlier this week, the US State Department announced that Trump has appointed Secretary of State Marco Rubio as the acting administrator of USAID.
The State Department said in a statement that Rubio "notified Congress that a review of USAID's foreign assistance activities is underway with an eye towards potential reorganization."
Rubio wrote in a letter to Congress: "The Department of State and other pertinent entities will be consulting with Congress and the appropriate committees to reorganize and absorb certain bureaus, offices, and missions of USAID."
As for whether the Trump administration can legally reorganize USAID, Roderick Hills, an NYU School of Law professor who researches administrative and constitutional law, told BI that is also against the law.
"Certain statutes have, from time to time, given presidents narrow and time-limited re-organization powers, but none of them give President Trump any power to reorganize the USAID," Hills said. "In fact, the statutory background to USAID makes it perfectly clear that President Trump's actions here violate federal law."
USAID was designed to operate independently
Congress designed USAID to operate independently of the State Department, Tribe told BI. "There is no legal loophole they can invoke to make their actions lawful," he said.
The legal expert said that apparent inaction by the GOP-led Congress on the matter suggests that Republicans in control of Congress are "afraid" of being confronted with Musk's "limitless riches."
On Wednesday, House Speaker Mike Johnson defended Musk's role as head of DOGE and his efforts to cut government spending, arguing that the executive branch is acting "within the scope of their authority."
Johnson said Republicans would "vigorously defend" Congress' role in government. "But what's happening right now is a gross overreaction in the media to what is happening," Johnson said.
"The executive branch of government in our system has the right to evaluate how executive branch agencies are operating," he said. "It's not a power grab."
A slew of Democratic lawmakers, on the other hand, have sounded the alarm.
"USAID was created by federal law and is funded by Congress. Donald Trump and Elon Musk can't just wish it away with a stroke of a pen — they need to pass a law," Democratic Sen. Brian Schatz of Hawaii said.
James Gardner, a professor at the University at Buffalo School of Law, told BI that Congress has given USAID many functions by statute, "and it is not up to anyone but Congress to decide that it should not perform the functions Congress has instructed it to perform."
"The Constitution designates the president as the chief enforcer of the law, not the maker of laws," Gardner said.
Though experts say the effort to disband USAID is illegal, it does not mean it can't happen.
Trump told reporters on Monday that shutting down USAID "should have been done a long time ago" and said he did not think the move would need approval by Congress.
A White House official insisted in a statement to BI on Wednesday that federal law was being adhered to.
"DOGE is fulfilling President Trump's commitment to making government more accountable, efficient, and, most importantly, restoring proper stewardship of the American taxpayer's hard-earned dollars," the official said. "Those leading this mission with Elon Musk are doing so in full compliance with federal law, appropriate security clearances, and as employees of the relevant agencies, not as outside advisors or entities."
While speaking to reporters in the Oval Office on Monday, Trump clarified Musk's power, saying the Tesla and SpaceX CEO can't make any moves without the green light from his administration.
"Elon can't do and won't do anything without our approval," the president said. "And we'll give him the approval where appropriate. Where not appropriate, we won't."
Musk did not immediately respond to a request for comment for this story. The State Department declined to comment and instead referred BI to recent statements by Rubio and the White House.
