Lawsuits to halt
Federal workers, Democratic states, and other plaintiffs face the difficult task of tying specific actions back to Musk and DOGE to show they’re in control rather than just advising properly empowered officials, law professors said.
DOGE is a unique, amorphous operation that the Trump administration contends isn’t led by Musk, despite President
“Much of what DOGE is doing is not transparent, not visible—it’s purposefully obscured,” said Michael Gerhardt, a law professor at the University of North Carolina who’s written treatises on presidential authority and the separation of powers.
Musk and DOGE have been at the forefront of the drive to radically downsize the federal government, which includes firing thousands of workers, canceling billions of dollars in contracts, and attempting to shutter entire agencies.
But a recent appeals court decision lifting restrictions on DOGE highlighted the obstructions that challengers face. The administration will probably defeat a claim that Musk exercised unconstitutional authority over the dismantling of the United States Agency for International Development, a divided US Court of Appeals for the Fourth Circuit ruled last week.
And even if the administration ran afoul of the separation of powers by attempting to unilaterally shut down an agency enshrined by an act of Congress, Musk and DOGE couldn’t be held responsible for that constitutional violation, the court said.
“From my perspective, the whole thing is whitewashing the reality of Musk’s role in favor of a cabined, very formalistic view of his day-to-day power,” Josh Galperin, a Pace University professor who teaches administrative and constitutional law, said of the Fourth Circuit’s ruling.
Born Into Litigation
The legal challenges to DOGE began soon after Trump created it with an Inauguration Day executive order, one of several presidential directives he’s devoted to the group.
The first batch of lawsuits—filed that same day—were based on representations from Trump, Musk, and others that DOGE would be an advisory commission headed by non-governmental workers who would provide advice on cutting government. The lawsuits alleged violations of the Federal Advisory Committee Act, which imposes requirements related to the transparency and composition of advisory groups.
But DOGE ended up being something different. Trump’s initial order reorganized the US Digital Service—an Obama-era initiative housed in the executive office of the president—and renamed it the US DOGE Service. Musk has been serving as a special government employee rather than an outside adviser.
The shift in DOGE design makes the lawsuits alleging violations of the federal advisory law moot, said Richard Painter, a law professor at the University of Minnesota and top White House ethics lawyer during the George W. Bush administration.
Constitutional Allegations
DOGE’s primary tactic for identifying jobs and contracts for the chopping block—obtaining access to agency data—has sparked about a dozen separate lawsuits focused on its activity at specific agencies, according to a Bloomberg Law review of litigation against the Trump administration.
Beyond those targeted lawsuits, a handful of plaintiffs have also brought broader constitutional challenges that seek to cancel DOGE’s actions and disable Musk and the group from further activity.
A group of USAID workers and contractors sued Musk and DOGE in Maryland federal court. They alleged Musk is wielding seemingly limitless authority in violation of the Constitution’s Appointments Clause, which sets forth requirements for the establishment and approval of government officers.
The USAID plaintiffs also claimed that DOGE violates the separation of powers by its actions that subvert Congress, as well as its design featuring no formal appointment, congressional authorization, or duties defined by law.
New Mexico and other Democrat-led states brought similar claims against Musk and DOGE, though they already lost a bid for a temporary restraining order by failing to show irreparable harm. The states’ case was consolidated with a lawsuit filed by the Japanese American Citizens League, Sierra Club, and other public interest groups.
Evidence of Musk’s Role
The USAID plaintiffs won a partial preliminary injunction at the trial court level related to DOGE’s involvement in the attempt to eliminate the agency.
Although the district judge found that the plaintiffs would likely prevail on their constitutional claims, he said early evidence indicates that USAID officials executed or ratified many of the actions at issue, including decisions to terminate workers and pause foreign assistance.
But even the partial injunction, which was limited to moving USAID out of its headquarters and shutting down its website, was soon put on ice by the Fourth Circuit’s March 28 decision.
The Trump administration offered evidence that Musk acted as a presidential adviser rather than DOGE chief, Judge Marvin Quattlebaum, a Trump appointee, wrote. The plaintiffs only put forth social media posts and press reports, according to the decision, which was joined by Judge Paul Niemeyer, a George H.W. Bush appointee.
The Right Defendants
Regardless of whether attempts to dismantle USAID violated the separation of powers, DOGE and Musk are the wrong defendants for such claims, the Republican-appointed judges said.
Judge Roger Gregory, a Clinton appointee, wrote in a concurring opinion that Musk violated the appointments clause and that the actions to shutter USAID violated the separation of power.
But Gregory agreed with his colleagues that the plaintiffs sued the wrong defendants.
Establishing the standing necessary to sue particular defendants rests in part on those defendants having the ability to fix the alleged injuries, said Craig Green, a Temple University law professor who focuses on judicial oversight of the executive branch. If the USAID plaintiffs are only suing entities without legal power, then there’s arguably no standing to allow courts to decide whether DOGE and Musk violated the Constitution, he said.
The separation-of-powers claim could have legs if plaintiffs amend their lawsuit to include executive branch officials, although the damage to USAID may be impossible to undo by the time the case gets heard again, said Leslie Gielow Jacobs, a University of the Pacific law professor and head of the McGeorge Capital Center for Law & Policy.
“It’s a lesson to others suing about Musk and DOGE’s misdeeds—sue the president and lower executive department officials, too,” she said.
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