The president does not have authority to abolish a federal department or agency created by Congress, legal experts say.
The U.S. Agency for International Development, which Elon Musk has said he and Trump are in the process of shutting down, was established first by an executive order in 1961 and later by a law Congress passed in 1998.
A more recent law, the State and Foreign Operations Appropriations Act for fiscal year 2024, which was incorporated into a larger congressional spending bill, requires that the executive branch notify and consult with Congress on any proposed reorganization or downsizing of the agency.
Richard Briffault, a professor at Columbia Law School, said his “best reading of the law is that although the president could direct greater coordination of USAID with the State Department and maybe even transfer some functions, he cannot unilaterally abolish the agency by executive order.”
“It has been established by an act of Congress and can be eliminated only by an act of Congress,” he said.
To that point, Secretary of State Marco Rubio’s letter to senators yesterday asking to consult with them about the future of USAID specifically referred to the 2024 appropriations act, which looked “like at least a nod towards the rule of law,” said Tess Bridgeman, co-editor-in-chief of Just Security, who worked as deputy legal adviser to the National Security Council under the Obama administration.
Rubio, who was named by Trump as acting USAID administrator, said in his letter to lawmakers that certain USAID missions could be shifted to the State Department and remaining agency activities “abolished consistent with applicable law.”
As Rubio has been confirmed by the Senate, the administration could argue it is seeking a legal path to restructuring the agency and is consulting as required with lawmakers, congressional aides said.
But the Trump administration’s recent actions, including locking employees out of headquarters, halting congressionally funded USAID programs, and cutting off email access for staff, as well as statements from Elon Musk, have sent a different message: that it possibly intends to dismantle the agency altogether.
“Is the administration purporting to be transferring all of USAID’s functions to the State Department, or are they simply being performed under a new acting administrator?” Bridgeman asked. “We don’t know the answer to that question. So it’s really hard to say whether the functions assigned to USAID by statute have been retained.”
Those who want to raise constitutional claims against the effort to abolish the agency would need to establish legal standing to sue. If the agency were dissolved outright, organizations that receive funding from USAID could have standing to challenge the move as an “injured party,” according to Bridgeman.
Employees at USAID also potentially have legal recourse if they are dismissed from their jobs in a way that violates federal laws governing civil servants.
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