Three principles are at play in the cases concerning DOGE
AT A HEARING on February 28th in one of two dozen lawsuits targeting DOGE (Donald Trump’s Department of Government Efficiency), Judge Theodore Chuang grew frustrated. A lawyer from the Department of Justice had just repeated the head-scratching claim in the Maryland courtroom that Elon Musk—despite all appearances—was not running DOGE. Mr Musk, the lawyer insisted, is just a “senior adviser to the president”. The real head of DOGE, he said, is Amy Gleason, a former healthcare executive who was on holiday in Mexico when, on February 25th, the administration named her to that position.
Mr Trump’s address to a joint session of Congress on March 4th rather undermined this argument. DOGE is “headed by Elon Musk”, Mr Trump said, as the entrepreneur smiled and bowed. Lawyers pounced, adding the evidence to case dockets an hour after Mr Trump left the rostrum. DOGE has moved fast and broken things, while cases about whether it has done so lawfully grind through the courts. There are lots of them, but they all turn on three arguments.
The first is over the meaning of Article 2, Section 2 of the constitution. The appointments clause mandates that “principal officers” must be nominated by the president and confirmed by the Senate. In Judge Chuang’s courtroom, lawyers for 26 USAID employees and contractors argued that Mr Musk has bypassed these requirements while wielding executive authority. His powers include stopping “payment of congressionally approved funds”, gaining access to “sensitive and confidential data across government agencies” and dismantling agencies outright. For Norm Eisen, the employees’ lawyer, Mr Musk “is acting as a super-cabinet member and has not been confirmed”, leaving “no mechanism for accountability”.
An administration official, responding to a similar challenge in court in Washington, DC, suggested there is no reason for concern. Presidents commonly rely on advisers who are not officially appointed, he wrote. Mr Musk is just another Anita Dunn, one of Joe Biden’s senior advisers. Anne Joseph O’Connell, a law professor at Stanford University, dismisses this comparison. Mr Musk is “running the show”, she says, and Ms Dunn “did not have an army of acolytes going into agencies and directing large-scale changes”.
On February 18th the judge in the DC case, Judge Tanya Chutkan, declined 14 states’ request to restrain Mr Musk’s activities. The plaintiffs “have not adequately linked” DOGE’s activities to imminent harm, she wrote. But Judge Chutkan suggested that the lawsuit is not dead yet, as it challenges “what appears to be the unchecked authority of an unelected individual and an entity that was not created by Congress and over which it has no oversight”. In three similar cases, deliberations continue: Judge Chuang’s in Maryland; another in Washington, DC, brought by non-profit organisations; and a slightly bizarre complaint from an elderly Marylander.
The scorecard is beginning to favour the plaintiffs in a second set of lawsuits that invoke two different principles: privacy rights and the obligation of government to keep records. Two judges have issued temporary orders, or longer-lasting preliminary injunctions, on these grounds to shut down some of DOGE’s work. On February 21st, Judge Jeannette Vargas agreed with New York and 18 other states that DOGE posed “a realistic danger” of disclosing “confidential financial information”. She blocked the Treasury from showing payment records or other data containing “personally identifiable information” to DOGE affiliates until at least March 24th.
Another DOGE loss came on February 24th in Maryland, where Judge Deborah Boardman found that the Department of Education and the Office of Personnel Management illegally granted DOGE affiliates “sweeping access to their sensitive personal information in defiance of the Privacy Act”, a law from 1974 that restricts disclosure of personal data without consent. By contrast, on February 21st Judge Rossie Alston in Virginia denied an order to plaintiffs arguing a similar claim. Judge Alston invited the challengers to “take necessary action to protect their rights if, in the future, they experience harm that is more concrete and immediate”.
Given the confusion, the Supreme Court will eventually get involved. On March 5th five justices dealt Mr Trump the first loss of his second term when they denied his bid to hold back nearly $2bn in foreign-aid payments. Yet if it turns out that the Supreme Court is inclined to clamp down on DOGE too, by the time it ruled the agencies Mr Musk has targeted may be so efficient they no longer exist. ■
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