Jay Kuo is a lawyer , blogger, and author who here explains a very important court ruling that finally, at last, challenged the constitutionality of Musk and his DOGE vandals. They have gone through agency after agency, copying personal data, firing employees without any knowledge of their role, and generally wreaking havoc.
Anyone with the barest knowledge of the Constitution knows that the power of the purse belongs to Congress, not the President and certainly not to the President’s biggest campaign donor and his team of young hackers. If they know even more about the Constutution, they know that no one can shut down an agency or Department that was authorized by Congress except Congress itself.
One judge said stop.
Jay Kuo explains the decision and why it is important. The post appeared on Wednesday March 19.
He writes:
There are a lot of lawsuits and a lot of moving parts. But best I can tell, yesterday’s ruling from Judge Theodore Chuang of the federal district of Maryland was the first time any judge has directly addressed the illegality of Musk’s appointment as head of DOGE and then ordered his actions unwound.
Specifically, Judge Chuang, in a 68-page preliminary injunction, blasted the illegal appointment of Musk, ruled the ensuing shutdown of USAID by DOGE illegal, and barred Musk and DOGE from any further work at USAID.
A lot has happened since Musk first took the reins at DOGE, so to understand the impact of this order—specifically what it does and does not do within USAID and how it might have ripple effects in other cases—it’s useful to go back in time to the beginning of February, when Musk and DOGE first started taking a chainsaw to the federal government.
“Fed to the woodchipper”
In early February, DOGE workers arrived at USAID and sought access to the agency’s systems. Because USAID operates in many foreign countries, intelligence reports and assessments are commonly generated around its work. When DOGE members attempted to gain access to classified files, two security officials with the agency attempted to stop them. In response to the officials’ frankly heroic actions, they were placed on leave by the administration.
That was one of the first signs things were going to get very bad, very quickly. Musk even bragged online that over that weekend he and DOGE had “fed USAID into the wood chipper.”
DOGE proceeded to cut off email and computer access to USAID workers. Then, as CBS News summarized, hundreds of USAID officials were placed on administrative leave, the agency’s website went dark, email accounts were deactivated, and USAID’s Washington, D.C., headquarters were occupied by U.S. Customs and Border Protection.
Secretary of State Marco Rubio quickly named himself acting director of USAID and then proceeded to cancel 83 percent of its contracts. This left nonprofits around the world unable to continue their life saving work. The New York Times estimated that USAID’s shutdown would lead to hundreds of thousands, or even millions, of deaths worldwide from disease.
Dozens of USAID staffers sued, arguing that Musk’s and DOGE’s actions were wholly unauthorized because Musk was never appointed and confirmed by the Senate, as required under the Constitution. They further argued that only Congress, not the executive branch, has the authority to shutter an agency established by statute rather than by executive order.
An “end-run around the Appointments Clause”
One of the most important parts of Judge Chuang’s ruling confirms that the administration tried to have it both ways with Musk.
On the one hand, there Musk was, with DOGE members already inside of an agency, bragging about how he had destroyed it in the course of a weekend. Musk made public statements and posts claiming he had firm control over DOGE, and Trump even praised Musk for this in his joint address to Congress.
The judge noted that Mr. Musk, during a cabinet meeting he attended at the White House last month, acknowledged that his team had accidentally slashed funding for Ebola prevention administered [by USAID]. He also cited numerous instances in which Mr. Trump and Mr. Musk have both spoken publicly about their reliance on Mr. Musk’s team to effectuate goals like eliminating billions in federal contracts.
In addition to the “wood chipper” post, Judge Chuang noted that Musk wrote in February that it was time for USAID to “die” and that his team was in the process of shutting the agency down.
On the other hand, the government tried to argue that Musk was only serving in some kind of advisory rather than official role. Government attorneys have argued in many cases that Musk does not have formal authority to make government decisions, and therefore he didn’t need to have been formally appointed by Trump and officially confirmed by the Senate.
When pressed as to who was actually in charge of DOGE then, the White House claimed last month that a woman named Amy Gleason, who worked for DOGE’s predecessor, was its acting administrator.
That’s so very odd, because as Kyle Cheney of Politico noted with a journalistic eagle eye, in a recent court filing in another matter the administration revealed that Gleason was actually hired by Health and Human Services as an “expert/consultant” on March 4. That’s just a few days after the White House insisted she was the acting administrator of DOGE.
The fact is, the government has been DOGE-ing the truth for weeks about who was really in charge. Everyone knew and bragged that it was Elon Musk, but that actually created a legal problem because of the pesky Appointments Clause. So they apparently filed false affidavits with the courts to try and backfill the position with someone who was never in charge of it, and then they got caught.
Judge Chuang wrote this while ruling for the plaintiffs on their Appointments Clause claim:
To deny plaintiffs’ Appointments Clause claim solely on the basis that, on paper, Musk has no formal legal authority relating to the decisions at issue, even if he is actually exercising significant authority on governmental matters, would open the door to an end-run around the Appointments Clause.
If a president could escape Appointments Clause scrutiny by having advisors go beyond the traditional role of White House advisors who communicate the president’s priority to agency heads and instead exercise significant authority throughout the federal government so as to bypass duly appointed officers, the Appointments Clause would be reduced to nothing more than a technical formality.
Judge Chuang further noted that Musk appears to have been involved in the closure of the Consumer Financial Protection Bureau headquarters and that he and DOGE “have taken other unilateral actions without any apparent authorization from agency officials,” including firing staff at the Department of Agriculture and National Nuclear Security Administration.
“Under these circumstances, the evidence presently favors the conclusion that contrary to defendants’ sweeping claim that Musk acted only as an advisor, Musk made the decisions to shutdown USAID’s headquarters and website even though he ‘lacked the authority to make that decision,’” Chuang wrote, throwing arguments made by the Trump administration right back at them.
Musk’s “unilateral, drastic actions”
Plaintiffs also claimed that the executive branch had acted outside of its authority in seeking to shut down an agency established by congressional statute. Judge Chuang agreed.
“There is no statute that authorizes the Executive Branch to shut down USAID,” Judge Chuang wrote, noting that only Congress has the constitutional authority to eliminate agencies it has created.
“Where Congress has prescribed the existence of USAID in statute pursuant to its legislative powers under Article I, the president’s Article II power to take care that the laws are faithfully executed does not provide authority for the unilateral, drastic actions taken to dismantle the agency,” Chuang wrote.
He concluded, “The public interest is specifically harmed by defendants’ actions, which have usurped the authority of the public’s elected representatives in Congress to make decisions on whether, when and how to eliminate a federal government agency, and of officers of the United States duly appointed under the Constitution to exercise the authority entrusted to them.”
But… he can’t truly undo the damage
The judge was stark in his assessment of the fatal injuries Musk and DOGE have inflicted upon USAID. He noted that because of the firings, the freezing of funds, the locking out of staff access to computers and communications, and the shuttering of the building itself, USAID is no longer capable of performing as required by statute.
“Taken together, these facts support the conclusion that USAID has been effectively eliminated,” Chuang wrote.
And while he ordered DOGE to reinstate email access to all employees and to submit a plan to allow them to reoccupy the building, he acknowledged that it wouldn’t be long before someone with actual authority could allow DOGE back in. That’s because even though something may have been illegal and unauthorized at the time it was done, someone with the proper constitutional and legal authority can in theory come back later and ratify those actions.
That effectively means that Secretary of State Marco Rubio, who is Senate-confirmed and now the acting director of USAID, is still free in a couple of weeks to order the permanent closure of the main facility in Washington, as he had planned. And even though another judge has ordered $2 billion in USAID’s frozen foreign aid funds released, and there might even be enough employees now available to make that happen, once that work is done USAID might still functionally cease to exist.
So is this an empty victory?
If USAID employees get to return to the building and access their emails and computer systems, only to be kicked out of it later and likely fired all over again, isn’t this just a hollow win?
The ruling may not save USAID from its fate, especially with an administration so bent on eliminating it entirely and the power to ratify DOGE’s activities after the fact. But thinking ahead a bit, this ruling could still throw significant sand in the gears of DOGE going forward.
If Elon Musk is, as Judge Chuang has ruled, the effective head of DOGE, and his position and consequential actions as an effective agency head requires him to have been formally appointed by Trump and confirmed by the Senate, then this will help other litigants in other cases put an immediate stop to what DOGE is doing currently. That could gum things up for Musk, who would suddenly lack the power to slash and burn the government using just his team of hackers.
Instead, the agencies and departments themselves would have to order all of the cuts, cancellations and terminations. And there may be far more statutory limits and processes governing what they as agencies can do. Further, plaintiffs are likely far more accustomed to challenging a familiar foe like a big government agency than an inter-agency, non-transparent wrecking crew like DOGE.
We will have to wait and see how this plays out. But I imagine Judge Chuang’s decision is going to start showing up as a big red stop sign in every case challenging the authority of DOGE to have done what it did and to keep doing what it’s doing.
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