This was a qualified victory for Trump, to say the least.
This was a qualified victory for Trump, to say the least.
O n Tuesday, a federal district judge in Washington rebuffed 14 Democratic-controlled states that sought a temporary restraining order (TRO) blocking Trump adviser Elon Musk and the Department of Government Efficiency (DOGE) from accessing data systems at several executive branch agencies, and from firing or placing on administrative leave employees within them.
Judge Tanya Chutkan’s denial of relief is a victory for President Trump, as anticipated here after the judge held a hearing on Monday. It is a qualified victory, nevertheless.
The administration prevailed mainly because of the demanding standard for issuing a TRO. Judge Chutkan — an Obama appointee who presided over Biden Justice Department special counsel Jack Smith’s 2020 election-interference prosecution of the now-president — did not conclude that the operations of Musk and DOGE are necessarily lawful. In fact, in her ten-page opinion, Chutkan described those operations as furtive yet sweeping; suggested that the Trump Justice Department had been disingenuous in describing those operations; and raised real questions about whether, given the expanse of their apparent authority, Musk is constitutionally qualified to serve and DOGE is in need of congressional authorization.
Putting aside whether they are likely to succeed on the merits of their claims that DOGE is an illegal construct, the blue states seeking a TRO bore a burden they could not satisfy: a showing of irreparable harm — as Chutkan described it, demonstration of an injury “both certain and great, actual and not theoretical, beyond remediation, and of such imminence that there is a clear and present need for equitable relief” (emphasis in original).
The blue states could not clear this hurdle because all of their claims were speculative. Essentially, the attorneys general were surmising that if Musk and DOGE got access to agency data, a parade of horribles would likely ensue. However colorable such supposition may be, it is not sufficient to show that there would even be harm, much less harm incapable of being addressed by the normal court process rather than by a prior restraint on the government.
Since the states could not meet the irreparable-harm standard, Chutkan did not need to reach the other preconditions for a TRO. Those include the all-important question of whether the states are likely to succeed on the merits; that is often the paramount consideration when a court is asked to intervene to prevent an action from happening rather than remediate any damage after the action has occurred.
Consequently, while a win is a win, and the administration will take it, this controversy is far from over. On that score, there are warning signs ahead. The most important of these involves whether the remit of Elon Musk and DOGE, which is not exactly crystal clear, is constitutionally appropriate.
On that point, the proceedings prompted some titillating legacy media reporting, misleadingly spun as the government’s admission that Musk, heretofore seen as the embodiment of DOGE, is not actually a member of DOGE at all. To the contrary, the potential problem lies in the importance of Musk’s DOGE portfolio — which is undeniably a leadership role, regardless of whether, on paper, he is technically part of the DOGE staff.
Musk has been described by the administration as a “special government employee,” a “non-career special government employee,” and a “senior adviser to the president.” These designations indicate that he is a top White House aide — even if a temporary and reportedly unpaid one for the world’s richest man. (As the Wall Street Journal’s James Freeman points out, President Biden’s longtime confidant, Anita Dunn, was designated as a “special government employee” as she carried out her influential White House work.)
DOGE is a component of the White House staff — a part of the Executive Office of the President, built out of the U.S. Digital Service that President Obama established (to deal with problems in the Obamacare rollout). Being a mere member of DOGE is a position lower on the totem pole than Musk’s White House job, and the president has assigned Musk to supervise DOGE’s work. Hence, in a practical sense, he remains the most consequential force in DOGE’s mission regardless of whether he is a formal member of its workforce.
That, however, raises a constitutional appointments clause issue — something we explored in detail in connection with the aforementioned Jack Smith’s Mar-a-Lago documents case against Trump, which Judge Aileen Cannon dismissed upon concluding that Smith’s special counsel appointment did not pass constitutional muster. (Judge Cannon’s rationale echoed Justice Clarence Thomas’s concurring opinion in the Trump immunity ruling last July — see here, pp. 643 & ff.)
The issue is straightforward: If an executive branch official exercises important powers without supervision, then that official is an officer of the United States. Such an officer’s appointment must either be subject to Senate confirmation or pursuant to a statute. (Smith’s was neither, which is why Judge Cannon threw out the indictment.)
In the litigation before Judge Chutkan, the government conceded that neither DOGE nor Musk’s position was established by a congressional statute. For appointments clause purposes, then, the question is whether Musk is exercising such significant, unsupervised authority that he should not be serving in such a position absent nomination by the president and consent by the Senate. Relatedly, is DOGE wielding such consequential powers that statutory authorization is required — or, since it is essentially a presidential arm that is conducting internal inquiries about the workings of executive branch agencies, are President Trump’s executive orders sufficient?
As for Musk, I believe the matter comes down to whether (a) he is merely making recommendations based on DOGE’s scrutiny of data to high-ranking administration officials, who then take such actions as terminating personnel and slashing spending, or (b) he is taking these significant actions himself.
On this question, Chutkan accused the Trump administration of being coy.
First, she summarized the blue states’ description of the authority Trump has vested in Musk:
Musk “exercises virtually unchecked power across the Executive Branch, making decisions about expenditures, contracts, government property, regulations, and the very existence of federal agencies.” . . . In the last few weeks, Musk and DOGE Defendants have gained access to “sensitive data, information, systems, and technological and financial infrastructure across the federal government.” . . . [Musk and DOGE staff] have allegedly used this unfettered access and authority to terminate personnel . . . ; place entire agencies on temporary leave . . .; transfer data to outside servers; take over physical office spaces; and terminate contracts valued in the hundreds of millions of dollars. [Musk, DOGE, and the Trump administration] concede that there is no apparent “source of legal authority granting” Musk or DOGE “the power to order personnel actions” at federal agencies but do not deny that [Musk and DOGE] are taking such actions. [Emphasis added.]
On that last point, regarding the administration’s non-denial that Musk and DOGE are doing what the states say he is doing, Chutkan dropped a footnote faulting the Trump DOJ for what she framed as its caginess about whether Musk and DOGE control personnel actions.
The administration had relied on a declaration by Joshua Fisher, director of the Office of Administration, which assured the court that “Neither of the President’s Executive Orders regarding ‘DOGE’ contemplate — much less furnish — authority” to “order personnel actions at any of the agencies” specified. Yet, Chutkan observed, the executive orders in question explicitly provide that the agencies are required to consult “the DOGE team” before making hiring decisions, and they may not fill career-employee positions over the DOGE team’s objection unless the agency head overrules the DOGE team.
Chutkan concluded that, “at a minimum, this language ‘contemplates’ DOGE’s authority over personnel actions.” With that, she warned: “Defense counsel [i.e., the Trump DOJ] is reminded of their duty to make truthful representations to the court.” Lest there be doubt about her thinking, Chutkan cited a federal civil procedural rule (Rule 11) that empowers the court to impose sanctions on lawyers who make misrepresentations in pleadings.
Bottom line: Is Musk exercising real authority, or is he just a consultant to agency heads — federal officers who are subject to confirmation, or who’ve assumed their positions only upon satisfying statutory qualifications?
It appears to me that, while Chutkan gave the Trump administration temporary relief in that she will not order Musk and DOGE to stand down, she is preparing the battlefield to conclude, down the road, that (a) Musk and DOGE are wielding powers that constitutionally require Senate consent or statutory warrant, which is currently lacking; and (b) the Trump administration is being opaque about the roles of Musk and DOGE because it has realized it has an appointments clause problem.