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.
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 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.
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?