from the incremental-progress dept
Elon Musk may claim he’s leaving the government, but regardless of whether he or anyone DOGE leaves the damage has been done, and their potential legal exposure to it remains. And with this decision earlier this week, some of the litigation pursuing it made headway.
As we’ve written before, Judge Chutkan has had Musk and DOGE’s number for months, noting early on in this case, New Mexico v. Musk, one of the first challenges brought directly against them, that it appeared they had been acting without constitutional authority as it vandalized the federal government. Nevertheless, despite these suspicions she declined to enjoin them because it was then not clear that the states could plead adequate irreparable harm. And then her award of expedited discovery was overturned on appeal because the government’s motion to dismiss was still pending. There is now a ruling on that motion, and in a brand new decision she has allowed the case against them to continue.
It is an important ruling in an important case, although at this point maybe not in the way it originally seemed when first filed. It was first filed as a vehicle to get DOGE out of the government altogether, and before they had the chance to do much more damage. Unfortunately the TRO was denied. Nevertheless, the dicta in the decision denying it observed that DOGE was probably acting unlawfully, and that language may have helped judges addressing other, more agency-specific cases challenging Musk and DOGE issue orders constraining what DOGE can do. However, none have managed to remove the DOGE blight completely, which has still been rampaging across the government (and even beyond!) breaking things, which then all require separate lawsuits to address and only after plenty of damage has already been done (and likely unlawfully). And this decision, at such an early stage, will not remove it either, although it does move us all one step closer to its potential eradication (even if Musk or anyone DOGE leaves under their own power, it might not be enough to contain the scourge without a court ensuring that the door is locked behind them adjudicating relief from the mess they’ve already made).
And it is notable in at least two other ways. One relates the issue of “ratification,” which has been confounding courts. It comes up when DOGE has done something destructive within an agency but then the agency personnel legitimately endowed with power make it seem like what DOGE did was actually their doing. Courts are still struggling to figure out what to do with all this wrongfulness, because there may be a slight but important legal difference between DOGE causing damage with absolutely no lawful authority versus agency officials causing damage by misusing the authority they do lawfully have. (This is why it appears that hybrid cases suing both DOGE and the agency officials may be the most successful because they target both actors.)
This case, however, targets only Musk and DOGE (and Trump initially, although this decision did dismiss him). But it is still useful and important. Not only because, if DOGE were squashed, there would then be no DOGE actions for any agency official to ratify. But it may also bear on the ratification issue because courts are starting to realize that if DOGE is acting unlawfully then it would be impossible for any agency official to legitimately ratify what it has done. Unfortunately the DC Circuit has yet to see things that way, but in this decision Judge Chutkan explained how an earlier case where it had accepted ratification as a way of excusing DOGE was inapplicable here. First she explains what happened in that case:
Alternatively, Defendants argue that, even if Musk directed others to take the “complained-of-actions,” States fail to establish that the actions “were not formally approved by a relevant agency actor with proper authority.” MTD at 23. Defendants insist Andrade v. Regnery, 824 F.2d 1253 (D.C. Cir. 1987) thus bars States’ claim. MTD at 24.
In Andrade, the D.C. Circuit held that the termination or demotion of federal employees under a reduction in force (RIF) program did not violate the Appointments Clause because a duly appointed officer with the statutory responsibility for demoting or firing employees ratified all actions taken in connection with the RIF before it went into effect. 824 F.2d at 1255–57. Even though unappointed staff planned and largely executed the RIF, it “did not abridge the requirements of the Appointments Clause” because a duly appointed official had “final authority” on the day it took effect and was “the legal architect” of the RIF. Id. at 1257. The D.C. Circuit explained that “it is an everyday occurrence in the operation of government for staff members to conceive and even carry out policies for which duly appointed or elected officials take official responsibility.”
But even if the government were correct, that ratification should sink this case because it would explain and legitimize all the complained-of harm, it couldn’t be grounds for dismissing the case yet:
The D.C. Circuit made that determination following summary judgment proceedings and with the benefit of a factual record that clearly established a duly appointed official ratified the contested actions. Id. at 1255–56. At this juncture, the court lacks a factual record and must accept States’ allegations as true. Iqbal, 556 U.S. at 678. States allege that Musk and DOGE personnel, not a relevant agency actor with proper authority, took the challenged actions. Compl. ¶¶ 60, 64–225. The court cannot accept Defendants’ contrary claim that agency actors signed off on all decisions.
But then she made a separate and likely more important point about how far ratification could actually go to exonerate DOGE’s offenses:
Moreover, Defendants improperly invert Andrade’s holding. They read Andrade to hold that Musk can lawfully direct actions by agency actors, so long as those actors were duly appointed. MTD at 22–23. But Andrade addressed the “everyday occurrence” of “staff members” carrying out policies adopted by “duly appointed or elected officials.” 824 F.2d at 1257. The apt analogy would be an appointed agency head directing Musk to carry out a policy, not the opposite. States allege that, rather than subordinate himself to duly appointed officials, Musk “reports only to President Trump,” Compl. ¶ 71, removes agency officials that stand in his way, id. ¶¶ 84–85, 137–38, or obtains compliance through threats and intimidation, id. ¶ 95. Andrade did not resolve whether an individual who has not been duly appointed may direct the actions of appointed officials, and extending its holding to encompass that scenario would be particularly inappropriate in the face of allegations that agency actors obeyed Musk’s directions to avoid legal action or termination.
The issue remains unresolved, and this language is also likely dicta, but it makes an important point. Agency officials have a lot of legitimate power but statutes, like the APA and other more agency-specific statutes, constrain that power, so there’s a limit to what they could do on their own volition (like, for instance, not close down their own agency). But the record seems to be showing that they are making these moves not of their own volition but at Musk and DOGE’s direction, and our constitutional order prevents them from legitimizing what Musk and DOGE have done via that path. The agency-specific cases will address that there was no lawful way to impose the harms that have ensued, but this case is about Musk and DOGE having tried to wield unlawful power to cause it. Those efforts are still wrongful even if they are not the only thing wrongful that happened to lead to the harm. And what the court seems to be suggesting here is that because the APA (etc.) forbade these actions, and yet they happened anyway, it helps show that Musk and DOGE were indeed the cause.
Which is another reason why this case is important, because Musk and DOGE ultimately need to be held personally liable for the resulting harm of how they exercised their lawless power. The decision summarizes much of it what they have done to date:
- Controlling Expenditures and Disbursements of Public Funds: States allege that DOGE obtained “full access” to payment systems at multiple agencies and used that access to halt payments. Id. ¶¶ 78–79, 85, 127–30. For instance, after the acting-Secretary at U.S. Department of Treasury refused to “halt” payments, DOGE personnel threatened the acting Secretary with “legal risk [] if he did not comply with DOGE.” Id. ¶ 84. Then, on February 2, DOGE obtained “full access” to Treasury’s Bureau of the Fiscal Services payment systems, which disburses funds for social security benefits, veteran’s benefits, childcare tax credits, Medicaid and Medicare reimbursements, federal employee wages, federal tax refunds, and facilitates state recovery of delinquent state income taxes. Id. ¶¶ 78–79, 85. That day, Musk posted on X that “[t]he @DOGE team is rapidly shutting down these illegal payments,” in response to a post by a non-profit organization receiving funds pursuant to government contracts. Id. ¶ 86.
- Terminating Federal Contracts and Exercising Control over Federal Property: States allege that Musk and DOGE asserted responsibility for terminating federal contracts across the Executive Branch. Id. ¶ 203–04. DOGE reported the cancellation of “104 contracts related to diversity, equity, inclusion and accessibility (DEIA) at more than a dozen federal agencies” on January 31, id. ¶ 205; of “thirty-six contracts across six agencies” on February 3, id. ¶ 206; of “twelve contracts in the GSA and the Department of Education” on February 4, id. ¶ 207; and “cuts of $250 million through the termination of 199 contracts” on February 7, id. ¶ 208. States also allege that DOGE and Musk exercise control over federal property by demanding access to secure facilities and threatening intervention by U.S. Marshals when agency officials refuse, id. ¶¶ 94–95; by “push[ing]” high-ranking officials out of their offices at agency headquarters, id. ¶¶ 164–66, by terminating leases for federal property, id. ¶ 206, and by announcing plans to “liquidate as much as half of the federal government’s nonmilitary real estate holdings,” id. ¶ 160.
- Binding the Government to Future Financial Commitments without Congressional Authorization: States point to the Fork in the Road Email, which offered federal employees pay and benefits through September 2025 if they resigned by February 6, as entering into binding financial commitments. Id. ¶¶ 116–20, 212.
- Eliminating Agency Regulations and Entire Agencies and Departments: States allege that DOGE personnel took steps to dismantle USAID and CFPB. On February 3, DOGE personnel allegedly “handed” USAID’s acting leadership “a list of 58 people, almost all senior career officials, to put on administrative leave.” Id. ¶ 102. The next day, USAID placed “nearly its entire workforce on administrative leave.” Id. ¶ 103. When “USAID contract officers emailed agency higher-ups” for authorization to cancel programs, DOGE personnel responded directly. Id. ¶ 101. Musk posted on X “CFBP RIP” on the same day that Musk’s aides “set up shop . . . at CFPB’s headquarters” and CFPB’s website was taken down. Id. ¶¶ 146–47. Three days later, CFPB’s acting Director Russell Vought told all employees to “[s]tand down from performing any work task” and “not come into the office.” Id. ¶ 148.
- Directing Action by Agencies: States allege that Musk and DOGE obtain compliance from agency officials and employees by threatening action by U.S. Marshals, legal risks, or termination. Id. ¶ 84 (threatening acting-Treasury Secretary with “legal risk”); id. ¶ 95 (threatening USAID personnel blocking access to facility with action by U.S. Marshals); id. ¶¶ 176–178 (DOL employees told to comply or “face termination”). States claim that if agency officials object or raise concerns, Musk and DOGE ignore or override the agency and place on administrative leave or otherwise remove non-compliant individuals. Id. ¶¶ 84–85 (acting-Treasury Secretary “placed on administrative leave” after refusing to halt payments); id. ¶ 110 (DOGE “gained full and unfettered access to OPM systems over the existing CIO’s objection”); id. ¶¶ 137–38 (DOGE representative was “installed” as the Department of Energy’s (“DOE”) “chief information officer” after DOE’s general counsel’s office and chief information office opposed DOGE’s access to DOE’s IT system); id. ¶ 166 (DOGE personnel “pushed” the “highest-ranking officials” at the Department of Education (“ED”) “out of their own offices”).
- Acting as a Principal Officer Unsupervised by Heads of Departments: States allege that Musk acts and directs DOGE’s conduct without supervision by agency heads. For instance, States allege that Musk and his team sent the Fork in the Road Email “via a custom-built email system . . . withot consultation with other advisers to the President or OMB officials,” id. ¶ 120; that DOGE personnel at agencies do not “interact at all with anyone who is not part of their team,” id. ¶ 165; and that Musk “reports only to President Trump,” id. ¶ 71.
- Obtaining Unauthorized Access to Secure Databases and Sensitive Information: States allege that Musk and DOGE personnel obtained access to secure databases and systems at Treasury, id. ¶ 85, USAID, id. ¶ 95, OPM, id. ¶ 110, the Department of Health and Human Services, id. ¶ 127, DOE, id. ¶ 137, ED, id. ¶¶ 164, 167, DOL, id. ¶¶ 177–78, National Oceanic and Atmospheric Administration, id. ¶ 190, Federal Emergency Management Agency, id. ¶ 194, and Small Business Association, id. ¶ 198.
While it would have been nice if personal liability could have been pursued earlier, to at least scare the minions away from helping Trump and Musk complete their destructive mission, the litigation that will eventually pursue it may be stronger with a judicial finding that Musk and DOGE’s actions were indeed illegal. And not something that any of them can escape even if they voluntarily stop – while it’s great if Musk or any DOGErs give up their access to government systems and services and stop causing even more harm, they should still be liable for the harm they have already caused.
And this decision in this case gets us one significant step closer to that day where they may have to pay.
Filed Under: administrative procedure act, appointments clause, doge, donald trump, elon musk, liability
