Judge Rules Appointments Clause Challenge against DOGE Likely to Succeed
You’ve likely heard that Judge Theodore Chuang has enjoined DOGE in the context of its destruction of USAID.
Just as importantly, he has ruled that an Appointments Clause challenge to DOGE is likely to succeed. As I have repeatedly argued, such a challenge — arguing that to wield as much power as Elon Musk does, you have to be Senate confirmed in a position created by Congress — would be most likely to survive a SCOTUS review. (It’s the same basis Aileen Cannon used to throw out the Jack Smith case.)
To be sure, I’m a bit skeptical about the order and injunction. The latter only enjoins DOGE from doing anything on their own; if they get USAID approval, they can do whatever they want to do.
But the opinion notes that the Appointments ruling only applies to two things that, the record before the court shows, Elon did himself: shutting down USAID as an agency and shutting down the building. While the injunction requires USAID to stop any further terminations and let employees start accessing payment systems again, even though it notes that Gavin Kliger sent the email that terminated at least a few of the plaintiffs, those decisions involved Marco Rubio and Pete Marocco.
The opinion is most fun for the two extended sections where it dismisses the government’s claim that Elon is not in charge of DOGE.
Most notably, on February 19, 2025, President Trump publicly stated, “I signed an order creating the Department of Government Efficiency and put a man named Elon Musk in charge.” J.R. 568. Musk spoke on behalf of DOGE at a joint press conference with the President on February 11, in a joint interview with the President on February 18, and at the Cabinet meeting on February 26.
Musk’s public statements and posts on X, in which he has stated on multiple occasions that DOGE will take action, and such action occurred shortly thereafter, demonstrate that he has firm control over DOGE.
[snip]
Althought the White House announced on February 25, 2025, that Amy Gleason is now the Acting USDS Administrator, that same day, White House Press Secretary Karoline Leavitt maintained that “the president tasked Elon Musk to oversee the DOGE effort” while noting that others “are helping to run DOGE on a day-to-day basis.” J.R. 616. Notably, at the February 28, 2025 hearing on this Motion, Defendants’ counsel could not identify, despite having made an inquiry, who the USDS Administrator was before Gleason.
We shall see how this survives appeal (the suit was filed in Maryland, so it’ll go through a different Circuit than most DOGE challenges, including the New Mexico one that is closest to this stage).
But for the moment, it has held that Elon has absolutely no authority to do most of what he has done.
I wish this *could* stop them.
Roberts, chief injustice of SCCOTUS, has said that they need to stop targeting judges for impeachment. That’s unlikely to stop them, at this point.
[ https://www.dailykos.com/stories/2025/3/18/2311022/-Justice-Roberts-tells-Trump-to-stop-threatening-judges-what-did-he-think-would-happen ]
The optimistic reading of that is Roberts having a little bit of face eating leopard buyers remorse. A deeply cynical reading of that is Roberts reminding Trump he’s been with the powers behind the throne much longer, so stop risking making things messy and let his SCOTUS kill things where needed.
At this point, I’m giving myself permission to be in that deeply cynical camp.
My even more deeply cynical take on that deeply cynical take is that Trump has always been his own worst enemy, so Roberts is still in face-eating leopard buyer’s remorse territory. Because Trump thinks it’s HIS throne, and no one could have ever seen that comin’? Trump has never been a team player, something the Chief Justice is just figuring out.
Perhaps Roberts sees the Trump presidency as a kind of shakedown cruise of the newly launched unitary executive. It just needs a little fine-tuning by the engineers and architects who have been designing it for decades to take its place as the flagship of American governance.
As shakedown cruises go, this is the equivalent of a five-year exploratory mission beyond the boundaries of Federation space. If something goes wrong in-flight, you’re hosed.
Maybe from Roberts’s perspective this is a low-risk/high-reward cruise. He has been a devotee of the unitary executive for ages and has already discounted the dangers we perceive.
Karoline LEAVITT today:
https://bsky.app/profile/atrupar.com/post/3lkqpoyrgx522
March 19, 2025 at 1:33 PM
Transcript [Note especially the second section]:
I don’t understand why most media fails to report what is really happening: a coordinated and full-fledged attack on democracy in America and around the world.
I’m wondering…
If a U.S. President (1) decides he wants to architect major administrative/financial changes to a U.S. government agency, and (2) decides to engage a non-government, non-credentialed/non-certified, non-listed-Contractor entity to make the changes, and (3) tells this entity to start making the (dictated elsewhere?) changes, is the U.S. government responsible for payment to the entity for their work AND legally responsible for errors/mishaps by the entity in doing their work?
Who’s paying Elon and Associates? Thinking/wondering what a great way to extract additional huge sums from an agency and do so below the radar.
The financial fruits of Elon’s exploitation of his massive conflicts of interest will be massive. The adolescent boy’s gratification from burning stuff down: priceless.
The plot sickens:
Kyle Cheney @kyledcheney.bsky.social
HMMM: So the administration reveals in a new court filing (ordered by Judge Bates) that Amy Gleason was actually hired by HHS as an “expert/consultant” on March 4, just a few days after the White House identified her as the administrator of DOGE.
https://bsky.app/profile/kyledcheney.bsky.social/post/3lkopbsfv5z24
So, Gleason double dipping, or DOJ lawyers violating their responsibilities as members of the bar?
It’s so satisfying to see all of Musk’s and Trump’s public gloating coming back to bite them in the ass in this opinion.
Over at dKos, a post on what judges need to be doing:
https://www.dailykos.com/stories/2025/3/18/2311041/-Maybe-the-judges-should-be-the-ones-moving-fast-and-breaking-things
This should also be in news media.
I’ve stopped reading dKos because of its new paywall and its grasping anti-privacy “options”. It takes more time to ferret out and disable approvals for its hundreds of site vendors than to read several articles. More responsible sites have a “reject all” option. dKos makes you do it one at a time.
All that is an indirect way of saying Emptywheel and her site continue to be marvels of openness and deep thinking. Those who can might check that Support box in the upper right. Thanks.
Paywall at dKos? I must have some kind of legacy access because I’ve never seen that. However, the “horseshoe theory” is alive and well at dKos.
I haven’t seen a paywall there.
They want people to subscribe, though: they need money for their servers. (I got a lifetime subscription, way back when it was $100, and have since lost my password. I’d already quit commenting because of the moderation getting nasty.)
With few exceptions, I lump mandatory registrations into the paywall bucket, in the belief that, if it’s “free,” you’re the product. That’s reinforced by the hundreds of vendors it sponsors and presumably gives access to my information. If it didn’t, it would have a “reject all” button that doesn’t itself freeze me out.
eoh: if you haven’t already you may want to try privacy badger ( privacybadger . org ). it saves me lot of headaches and i haven’t run into a website yet that rejects it. i use it with firefox and the ublock origin and ghostery extensions; when the later two cause issues with heavy ad sites i usually leave.
I don’t think pursuing contempt is going to work out well. There is a Law Review article that researches this issue by Parilla, “The Endgame of Administrative Law: Governmental Disobedience and the Judicial Contempt Power” (https://harvardlawreview.org/print/vol-131/the-endgame-of-administrative-law/).
What Parilla finds is that lower courts often consider contempt and sanctions against agency officials, but higher courts subvert these rulings while being careful to avoid giving the impression that sanctions are outside the power of the courts. The system works more on the basis of shaming agency officials who are held in contempt. And this administration has no shame. They have fully convinced themselves that any judge who rules against them is corrupt.
Parilla’s synopsis: “From this research, I make four conclusions. First, the federal judiciary is willing to issue contempt findings against federal agencies and officials. Second, while several individual federal judges believe they can (and have tried to) attach sanctions to these findings, the judiciary as an institution — particularly the higher courts — has exhibited a virtually complete unwillingness to allow sanctions, at times intervening dramatically to block imprisonment or budget-straining fines at the eleventh hour. Third, the higher courts, even as they unfailingly halt sanctions in all but a few minor instances, have bent over backward to avoid making authoritative pronouncements that sanctions are categorically unavailable, thus keeping the sanctions issue in a state of low sa- lience and at least nominal legal uncertainty. Fourth, even though contempt findings are practically devoid of sanctions, they nonetheless have a shaming effect that gives them substantial if imperfect deterrent power. The efficacy of judicial review of agency action rests primarily on a strong norm, shared in the overlapping communities that agency officials inhabit, that officials comply with court orders. Shame-inducing contempt findings by judges are the means to weaponize that norm.”
another judgement against this maladministration: blocking them from bannign trans people from the military.
https://www.sfgate.com/news/politics/article/federal-judge-blocks-trump-administration-from-20228898.php
The judge in this case is Ana Reyes.
Headline in The Guardian: “Hungary bans Pride events and plans to use facial recognition to target attenders”. In spite of this court ruling, why does such a use of technology not seem too far away in today’s United States?
The other point to note is the Court’s extensive analysis that the Executive’s effective dismantling of USAID likely violates the Constitution’s Separation of Powers because Congress created and funded the agency.
Hopefully, plaintiffs will eliminate the shell game of whom is authorizing what by amending their complaint and bringing in USAID. Doing so would afford the Court the ability to issue injunctive relief with real bite.
Naming names is very important to force the minions who sign off on these ridiculous decisions to defend themselves from those they hurt. As it stands now, Elno as well as Convict-1 / Krasnov have plausible deniability for directing all of the ”mistakes’ made, leaving the underlings to take the fall.
I’ve been in that position before to ‘put the bars on the line’ and pushed back, hard. One can always go up the chain of command to get a signature, but if I sign something, I own it by definition.
There’s the real reason for the ongoing refusal of DOGE commissars to show IDs when in thug mode.
Part of the reason I was unhappy with one supervisor was because he was willing to sign off on stuff that hadn’t actually passed QC.
And, I bet he wanted you to sign for it. If he’s so sure, he can sign for it.
I made him sign off. (He wasn’t much of a boss. Generally behaved as if rules were for everyone else.)
Later on, when I was doing QC myself, I considered my signoff to be a guarantee that I’d seen and approved.