Policy Alert: Judge Allows Lawsuit Challenging DOGE, Musk’s Role to Proceed

Action: A lawsuit brought by 14 states challenging the actions of DOGE and Elon Musk’s role leading it will be allowed to proceed after a US District Judge refused the defendants’ motion for dismissal. The plaintiffs had initially sought, and were denied, a temporary restraining order blocking DOGE from accessing government systems or terminating government employees. The lawsuit had also initially included the President as a defendant, though the court granted the defendants’ request to remove him recognizing that courts lack the authority to “enjoin the President in the performance of his official duties.”

Key Insights

• The states argue that the establishment of DOGE through an Executive Order that renamed and reorganized the existing US Digital Service, while granting new powers to that agency, violated the Constitution by creating a new Federal entity without Congressional approval.
• In particular, the states claim that the President “delegated virtually unchecked power to Mr. Musk [as head of DOGE] without proper legal authorization from Congress, and without meaningful supervision of his activities. As a result, [Musk] has transformed a minor position that was formerly responsible for managing government websites into a designated agent of chaos without limitation and in violation of the separation of powers.”
• Further, the lawsuit argued that Musk’s role in DOGE violates the Appointment Clause of the Constitution, which requires that principal officers of the US be confirmed by the Senate. The Administration stated that Musk is a “special government employee” serving an advisory role “with no actual or formal authority to make government decisions himself, while Amy Gleason is the acting DOGE administrator. However, plaintiffs point out that the day after this statement, the President said that he “signed an order creating the Department of Government Efficiency, and put a man named Elon Musk in charge.”
• Plaintiffs therefore argue that Musk exercises “significant authority” that exceeds an advisory capacity and is subject to the appointments process. There has been significant ongoing confusion about DOGE’s organizational structure and the respective roles of Musk and Gleason.
• US District Judge Tanya Chutkan largely agreed with the plaintiffs’ arguments in allowing the litigation to proceed, writing that “[t]he Constitution does not permit the Executive to commandeer the entire appointments power by unilaterally creating a federal agency pursuant to Executive Order and insulating its principal officer from the Constitution as an ‘advisor’ in name only.” However, the ruling does not result in any immediate changes to government policy.
• Other lawsuits have challenged DOGE actions on similar grounds. For example, a district judge previously ruled in a lawsuit brought by former USAID employees that actions taken by Elon Musk and DOGE employees likely violated the Constitution’s Appointments Clause and the principle of separation of powers and consequently granted a preliminary injunction. However, an appeals court lifted the order, finding that while Musk and DOGE influenced the decisions regarding USAID, the actions were taken by “appointed Officers of the United States,” including the Secretary of State. Litigation in this case in ongoing.
• A Federal judge also recently modified a previous ruling that had blocked DOGE staff from accessing the Treasury Department system that handles nearly 90% of federal payments after the Administration indicated that the staff had undergone the same vetting procedures applied to other Treasury employees.