It’s A Start: Musk And DOGE Take Their First Real Hit
It is nearly impossible to keep up with all the litigation challenging all the terrible, if not also lawless and unconstitutional, things the Trump Administration is doing. But one group of cases is particularly interesting: the cases involving Musk and DOGE. In part because they are the lawless mercenaries Trump has been sending to do much of his unconstitutional bidding, but also because, by being lawless, they tempt their own personal liability that they may hopefully someday have to bear. Having their lawlessness established by the courts is also an important first step to stemming the tide, because even if it doesn’t lead to an injunction officially ordering it to stop, it can hopefully scare off anyone enabling it if they are forced to contemplate how much liability they may also have to face once Musk and DOGE’s illusory authority finishes falling away.
The earliest litigation challenging effects of their takeovers of agencies didn’t tend to directly name them as defendants (see for example American Foreign Service Association v. Trump). Those lawsuits tended to challenge what Musk and DOGE caused the agencies to do, generally in the form of complaining that “the agency leaders had no business taking these actions.” Then we started to see some litigation pursue more of a hybrid model where Musk and DOGE were also named, because their lawless interference was a factor in the illegal actions taken by the agency (see for example American Federation of Government Employees v. Office of Personnel Management). But a few lawsuits took a swing at Musk and DOGE’s lawlessness directly and how everything they were doing everywhere, or at least nearly everywhere, was unlawful. One of the earliest such cases pioneering this form of litigation was New Mexico v. Musk, which is now in the middle of some expedited discovery. Although a TRO was denied in that case, in dicta the judge there said it looked like Musk and DOGE had been acting lawlessly across government, interfering with all sorts of agencies and their actions.
But this week came the first official finding that Musk and DOGE appeared to be unlawfully messing with agencies. It came in one of the other earlier cases, Does 1-26 v. Musk and relates solely to their actions taken in furtherance of unlawfully shutting down USAID.
What follows is a scenic tour of this important decision, with some comments afterwards about its potential implications. Although it is a preliminary finding rather than a final determination, and specific to an injunction governing its actions only with respect to USAID, its reasoning is sure to reverberate, not just in this case but across all cases involving their behavior. It also walks through some important concepts that will be relevant in all cases, especially ones trying to seek some sort of injunctive relief to get the what is going on to stop, so it is worth seeing how they were handled here. For the sake of readability, I’ll use something called “pin cites” to indicate where in the 68(!) page decision the relevant language can be found and save block quotes for particularly salient language, lest the post get too long and confusing. But it’s all important, and surely not the last word on any of this.
Factual background
The decision opens by setting out some factual background. It begins by describing the parties, first DOGE, [p.2-3], and then Elon Musk, [p.3-5], documenting in particular how Trump had continually declared him to be DOGE’s leader, despite declarations filed by the government asserting the contrary. It then described DOGE’s activities writ large across the government,[p.5-7], noting in particular that “DOGE has taken numerous actions without any apparent advanced approval by agency leadership.” [p.6]. The next several pages [p.7-13] summarized DOGE’s meddling with USAID in particular.
After that the background section describes the plaintiffs, who are all “current and former employees or personal services contractors (‘PSCs’) of USAID.” [p.14]. They have proceeded anonymously, although their complaint and declarations describes their different roles and the types of harm each has either experienced or observed as a result of those roles. For instance, one plaintiff is stationed in a high-risk area in Central America, yet in danger of losing access to cellphones, electricity, and internet—and with them the security infrastructure they depend on—as a result of DOGE’s interference with USAID’s payment system. [p.15]. Another in the Middle East is in a similarly insecure predicament. [p.15]. The decision described their concerns, which in addition to those security-related ones also includes wrongful job loss, the inability to get benefits and owed payments processed, and the potential leakage of sensitive personal data, including family member information and information contained within security clearance files. [p.15-16]. The decision also discussed the reputational harms plaintiffs have experienced as a result of Musk besmirching the reputation of USAID and the tangible way it has already caused problems for them at home and abroad. [p.16].
The decision then launches into a discussion about the preliminary injunction the plaintiffs are seeking in order to obtain “narrow emergency relief.” [p.17]. To get an injunction the plaintiffs would need to make a “clear showing” that, “(1) They are likely to succeed on the merits; (2) they are likely to suffer irreparable harm in the absence of preliminary relief; (3) the balance of equities tips in their favor; and (4) an injunction is in the public interest.” [p.17]. Of note, these factors have been issues in essentially all of the cases seeking some form of injunctive relief, including TROs, although courts in general are even more hesitant to award them in the TRO context given that they are a remedy awarded even earlier in the litigation before more facts, or even more notice, has been given to the other party. But because these are such important factors in all these cases seeking to get the madness to stop it is worth looking to see how the court found them satisfied enough here to at least somewhat so order it.
Standing
As the court recites, standing requires that “(1) the plaintiff must have suffered an ‘injury in fact’; (2) the injury must be fairly traceable to the actions of the defendant; and (3) it must be ‘likely’ that the injury will be ‘redressed by a favorable decision.'” [p.17-18]. We’ve seen some flavor of this before, like in the Murthy v. Missouri case, where standing was not found.
Here, on “injury in fact,” the court found a variety of potential injuries, such as plaintiffs having their contracts ended or employment terminated, or other harms as discussed in the factual background. [p.18-19]. Some plaintiffs also raised concerns about DOGE having access to sensitive personal information, but the court found it unnecessary to predicate standing on that potential harm. [p.18]. It’s worth noting that not every court has credited either of these injuries, however. For instance, in AFSA, which addressed in part USAID firings, the judge there said that employees had no standing to bring claims for wrongful firings to the district court because there was an alternative form of employment adjudication prescribed by statute. On the other hand, that litigation was against the agency for using its own authority to fire people, whereas in this case the issue was someone with no authority effectively firing them, which raised a different issue than the employment statutes contemplated. And in terms of the access to sensitive information courts have somewhat diverged, although how they have done so is a subject for another day. Here the harm was credited, because if DOGE is behaving unlawfully, it’s still a harm that shouldn’t have been experienced.
As for traceability, “plaintiffs need not established that the challenged action [by defendants] is the ‘proximate cause’ of the injury and instead need only show that it is ‘in part responsible for’ the asserted injury.” [p.19]. And here the court finds the plaintiffs have done that, alleging “sufficient facts to support the conclusion that the personnel and contract actions taken against Plaintiffs, as well as the failures to pay their expenses, occurred at least in part because of Defendants’ actions.” [p.19]. The court then listed a number of facts in the record, including Musk’s own public statements, such as, “we’re in the process of … shutting down USAID,” to support that conclusion, [p.19], along with the fact that DOGE had gained full access to USAID’s office and computer systems and “Musk even threatened to call the United States Marshals if they were not provided with such full access.” [p.20]. The government tried to argue that all these alleged harms were really “caused by independent actions authorized by USAID and its leadership wielding their own power,” but the court wasn’t buying it. [p.20]. The court recognized that whatever the agency heads may have done they hadn’t done in a vacuum:
Here, the record supports the conclusion that the USAID officials were not actually independent actors and that even if they were, they in fact would predictably sign off on the actions directed or taken by Defendants. President Trump publicly acknowledged that Musk and DOGE wield significant influence across federal agencies when he stated in an interview that Musk “take[s] an executive order that I’d signed, and he would have those people go to whatever agency it was” and then “some guy that maybe didn’t want to do it, all of a sudden, he’s signing.” [p.21]
Also not helping the government’s position was that people at USAID who tried to say no to DOGE got fired. [p.21]. And that the RIF notices that laid off thousands of agency employees bore metadata saying that the notices had been sent out by a member of DOGE, not an agency official. [p.21].
Then, on redressability, the court found that the requested relief of an injunction barring Defendants from “[i]ssuing, implementing, enforcing, or otherwise giving effect to terminations, suspensions, or stop-work orders,” as well as barring their access to agency computers and requiring them to reestablish the systems for use by the agencies “would at least contribute to relieving Plaintiffs of some of their injuries.” [p.22-23]. The government tried to plead a form of hypocritical helplessness, complaining essentially that Musk and DOGE lacked the authority to fix what they broke. [p.23]. But the court didn’t buy the contention that Musk and DOGE lacked such agency:
Plaintiffs have presented evidence that as a practical matter, Musk and DOGE Team Members acting at his direction have had the ability to cause personnel actions against employees and contractors, to stop payments, and to control any action that requires use of USAID’s computer systems. The record reflects that Musk has personally taken credit for shutting down USAID, and that he and another DOGE official overrode objections from USAID officials to gain access to the USAID classified computer systems and facilities for DOGE Team members and then caused dissenting USAID officials to be placed on administrative leave. It also reflects that DOGE Team Members have had complete control over the USAID computer systems and, on at least one occasion, blocked USAID-approved payments from being sent out. Indeed, at the hearing, Defendants effectively acknowledge that DOGE has total control over USAID systems when their counsel stated that thus far they have been unable to identify a USAID official unconnected to DOGE who would have the ability to take actions over the computer system to assist Plaintiffs with their immediate needs.” [p.23]
Likelihood of success on the merits
After finding that the plaintiffs had the standing to ask for the injunction, the next major issue in the decision’s analysis was whether they had a likelihood of success on the merits in their underlying complaint. In other words, are they likely to be correct in how they argued that Musk and DOGE’s acts were unlawful in how they harmed them.
One way the plaintiffs argued it was that Musk was acting in violation of the Appointments Clause of the Constitution. The issue is that it appears that he has been performing the role of an “Officer” without having been appointed to that role. To have acted as an Officer an individual must “(1) exercise[] significant authority pursuant to the laws of the United States”; and (2) “occupy a ‘continuing’ position established by law.” [p.25]
On the first point, “significant authority,” the government basically tried to argue that Musk was just advising, and all the things he advised were done because the USAID officials “ratified” the recommendations and turned them into their own. [p.26]. And while the court found the record unclear on some of the actions, for others the court found no evidence to suspect that USAID officials had ratified them. [p.27-28]. It also noted that Musk and DOGE, “despite their allegedly advisory roles, had taken other unilateral actions” at other agencies without any apparent authorization from those agencies’ officials. [p.28]. And it recognized that if the court bought the government’s arguments that Musk had not done what he was accused because he had no formal legal authority to do any of it, it would “open the door to an end-run around the Appointments Clause.” [p.31].
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 priorities 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. [p. 31].
On the second point, “continuing position,” the court, after some lengthy analysis, determined that the USDS Administrator qualified as a “continuing position.” [p.34]. Then there was the question of whether Musk actually is the USDS Administrator. [p.34]. The government tried to argue via declarations that he was not, but on the other side was all sorts of mounting evidence of Trump declaring that Musk actually was at least the de facto administrator, including, “[m]ost notably,” Trump having publicly stated that, “I signed an order creating the Department of Government Efficiency and put a man named Elon Musk in charge.” [p.35-36]. Ultimately to the court it looked like Musk has a “continuing position” for purposes of the Appointments Clause, and thus the claim that his presence in it was unlawful was likely to succeed. [p.36].
The other claim brought against Musk and DOGE was for violating the separation of powers, which arises when the authorities of the Executive Branch encroach upon those of the Legislative. [p.37]. The gist of the plaintiffs’ argument is that when Musk and DOGE acted to eliminate USAID, a federal agency created by statute and where the ability to undo it has been reserved for Congress can undo it, it unlawfully “usurped Congress’s authority to create and abolish offices.” [p.37].
The decision spent a few pages discussing how Musk and DOGE went about effecting USAID’s shutdown. [p.37-40]. It then turned to the contours of such a separation of powers claim, guided largely by the earlier precedent from Youngstown Sheet & Tube Co. v. Sawyer:
To act within its authority, the President or the Executive Branch much act based on authority that “stem[s] either from an act of Congress or from the Constitution itself.” Courts apply a tripartite framework, originally set forth in Justice Robert Jackson’s concurrence in Youngstown, to assess whether an executive action runs afoul of the Separation of Powers. First, “[w]hen the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate.” Second, if Congress is silent and neither grants nor denies authority, the President must rely only on the President’s independent powers as established by the Constitution and possibly based on authority existing in “a zone of twilight” in which there may be “concurrent authority” with Congress. Finally, if the President “takes measures incompatible with the express or implied will of Congress,” then the President’s “power is at its lowest ebb” and the President may “rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter.” [p.41]
The court then looked at whether Congress had expressly or impliedly authorized the dismantling and elimination of USAID and found none. [p.42-44].
Where Congress has consistently reserved for itself the power to create and abolish federal agencies, specifically established USAID as an agency by statute, and has not previously permitted actions taken toward a reorganization or elimination of the agency without first providing a detailed justification to Congress, Defendants’ actions taken to abolish or dismantle USAID are “incompatible with the express or implied will of Congress. Accordingly, the third Youngstown category applies, and the President’s “power is at its lowest ebb.” [p.46-47].
After that it considered whether the President’s own Article II authority let him end the agency anyway. The government essentially argued that because he has foreign affairs powers, and USAID involved foreign policy, he could do what he wanted to the agency without being second-guessed by the courts. [p.47-48]. But the court wasn’t having it, noting how much the closure “relate[s] largely to the structure of and resources made available to a federal agency, not to the direct conduct of foreign policy or engagement with foreign governments.” [p.48]. If the government’s theory was correct then “the President would have unilateral control over all aspects of the State Department and could even abolish it as a matter of the foreign policy power.” [p.49].
As a backup argument the government also insisted that the President’s interest in “avoid[ing] waste, fraud, and abuse” was an expression of his Article II power to ensure that the laws are faithfully executed, but the court didn’t buy this argument either. While “it may justify the termination or placement on leave of certain employees […] when, however, the Executive Branch takes actions in support of the stated intent to abolish an agency, such as permanently closing the agency headquarters and engaging in mass terminations of personnel and contractors, those actions conflict with Congress’s constitutional authority to prescribe if and how an agency shall exist in form and function.” [p.49]. The decision then spent a few pages backing up that conclusion further. [p.50-53].
Irreparable harm
To show irreparable harm, the plaintiffs needed to show two things: that an award of money damages later wouldn’t adequately compensate for the harm, and that the claim that the plaintiff will suffer harm is “neither remote nor speculative, but actual and imminent.” [p.53]. But then an issue arises: While the denial of a constitutional right constitutes irreparable harm, that rule holds only in “cases involving individual rights and not the allocation of powers among the branches of government.” [p.54].
The court addressed this issue by returning to the plight of the individual plaintiffs, as discussed (both here and in the decision) in the background section, because it is in their lives that the effects of this unconstitutional exercise of power will be felt, including as to their physical security. [p.55-56]. While some of the other litigation challenging the recent harm to USAID has resulted in some mitigation of the harms Musk and DOGE created through their interference with the agency, the court here generally found the relief incomplete, with the likelihood of harm remaining. [p.56].
Notably the court also found another source of harm: Musk’s disparaging public statements about USAID. While generally a claim that an employee’s reputation would be damaged as a result of an adverse employment action does not establish irreparable harm for injunction purposes, “cases may arise in which the circumstances surrounding an employee’s discharge, together with the resultant effect on the employee, may so far depart from the normal situation that irreparable injury might be found.” [p.56-57]. And the court here found that this case presented such circumstances.
Defendants’ public statements regarding the reasons for the actions relating to USAID go far beyond the ordinary. On February 2, 2025, as USAID headquarters was being shut down, Musk stated on X that USAID is “evil” and in another post that has been viewed at least 33.2 million times, that “USAID is a criminal organization.” The next day, Musk also publicly stated in a lengthy discussion on X that USAID was not “an apple with a worm in it” but was instead “just a ball of worms” that is “hopeless” and “beyond repair” to the point that “you’ve got to basically get rid of the whole thing.” Where such a prominent member of the Executive Branch has publicly described Plaintiffs’ place of employment in these ways on such a large media platform, and in a way that effectively characterizes it not as an agency in which certain individuals have engaged in misconduct but as a criminal enterprise from top to bottom, the likely harm to the reputation of personnel who worked there is of a different order of magnitude, because these statements naturally cast doubt on the integrity of those who worked there. [p.57-58]
On top of this reputational harm, which the court also found to be non-speculative, [p.58-59], there was also the harm related to the disclosure of sensitive personal information, which can constitute irreparable harm. [p.59].
Here, there are specific reasons to be concerned about the potential public disclosure of personal, sensitive, or classified information. First, as described above, the DOGE Team Members took extreme measures to gain access to classified information, including in SCIFs, when there was no identified need to do so and, as confirmed by J. Doe 11, at least some of them lacked security clearances. These measures included threatening to call the U.S. Marshals and then placing security personnel on administrative leave for attempting to enforce restrictions relating to classified material. Relatedly, J. Doe 2, a USAID employee on administrative leave with responsibilities relating to cybersecurity and privacy, has reported that DOGE Team Members without security clearances used their root access to USAID’s systems to “grant themselves access to restricted areas requiring security clearance.” [p.60]
The court then noted that sensitive personal information seems to have already been leaked, and that “disclosure of personal information is of greater concern where some Plaintiffs, such as J. Doe 1, are or have previously been posted overseas in high-risk areas and have expressed concern about ‘highly sensitive personal information’ such as ‘foreign contacts’ and ‘a safety pass phrase’ being released from personnel and security clearance files.” [p.60-61]. Given that DOGE has already “displayed an extremely troubling lack of respect for security clearance requirements and agency rules relating to access to sensitive data,” that they’ve already leaked some unredacted, and the exigent sensitivity of other data now in their possession, the court found a likelihood of irreparable harm if DOGE was not enjoined. [p.61].
Balance of the equities and the public interest
The remaining requirements for a preliminary injunction are that the balance of equities tips in favor of the plaintiffs, and that the injunction is in the public interest, which, in cases involving the government, merge into one factor. [p.61]. Basically, because an injunction changes something, this factor addresses whether that change is in the public’s interest. Here, though, because no one is harmed by a preliminary injunction that enjoins activity likely to be unconstitutional, and it looks like what Musk and DOGE did violated both the Appointments Clause and Separation of Powers, the court found these factors tipped in favor of the plaintiffs. [p.61-62].
The court further found that this factor tipped in favor of the plaintiffs because “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 because these likely unconstitutional actions have already put plaintiffs in physical jeopardy. [p.62]. The injunction also wouldn’t stop USAID from operating as an agency—it wasn’t even a party to the suit able to be enjoined anyway. The only activities being enjoined were the ones that are likely unlawful. Even Musk and DOGE could still “conduct assigned work pursuant to the various executive orders that complies with the Constitution and federal law.” [p.62].
Remedy
Having decided to issue the injunction, the next question for the court was what it should say. It decided to award some but not all of the relief the plaintiffs had requested. [p.64]. First, it addressed DOGE’s IT-related activities, requiring it to reestablish all email, payment, and other systems to their functional states. [p.64]. While the injunction doesn’t preclude all DOGE members from accessing agency information, in part because it couldn’t police if individual DOGE staff might be government employees entitled to the access in some other way, it did enjoin them “from any disclosure outside the agency of PII or other personal information of USAID employees or PSCs,” including on the DOGE website. [p.64]. Where some legally required disclosures had to be made, only USAID personnel unaffiliated with Defendants could make them. [p.64].
And the court decided that this injunction applied to how DOGE’s activities interfaced with all USAID personnel, and not just the plaintiffs themselves.
“[W]here the parties have been unable to identify a means by which individualized relief could be provided without jeopardizing Plaintiffs’ anonymity, and the record already contains multiple examples of USAID personnel who were placed on administrative leave or otherwise sanctioned for objecting to Defendants’ actions, the Court finds that applying these requirements to all current USAID employees and PSCs, including those on administrative leave, is necessary to provide full relief to plaintiffs.” [p.64-65]
One thing the court did not do was order the revocation of all the “mass personnel and contract terminations [that] are part of the ongoing dismantling of USAID that likely violates” the Constitution. It did not so abstain because the terminations are legitimate, but because it is currently unclear whether they had been issued entirely under the auspices of DOGE, or if they had been effectively ratified by legitimate USAID leadership. While such ratification wouldn’t necessarily make the layoffs lawful—see the discussion earlier in the decision about how USAID cannot be dismantled without authorization from Congress (as well as other cases involving other agencies addressing how agencies generally cannot be closed without Congress allowing it)—USAID itself was not party to this litigation and thus couldn’t be bound by such an order. Also the record on this question, about who caused the layoffs, is currently unsettled. [p.65].
At this point, however, DOGE cannot do more to affect the shutdown of the agency, including with respect to further firings, building closures, or records deletion. [p.65-66]. DOGE also must, within 14 days of the order, reopen USAID headquarters. However, if in that time period someone with appropriate authority ratifies the decision to close it, this requirement will be stayed. [p.66-67]. But no other portion of the injunction was stayed pending appeal—it is in effect now. [p.67]
Some implications
Several things have already happened since this decision was issued just a few days ago. For one, the government has appealed. At the time of this writing no stay has been issued, but given how it has acted in other cases it seems likely that the government will seek one to delay the injunction while it appeals.
The government also tried to play musical chairs with DOGE and agency appointees in an apparent effort to circumvent the injunction. Because this lawsuit only challenged DOGE, and not the lawfulness of anything the agency did on its own accord, it left open the possibility that the agency might have done DOGE things under its own auspices, or yet still be able to, like with respect to the building closure. These actions—like terminating contracts or the bulk of its workforce—might still be illegal, but, as discussed above, it will be for another case (or at least later in this litigation) to decide. Per where things are with respect to this case, USAID personnel lawfully in their roles can still run the agency and are presumed to be running it lawfully, while, with this decision, DOGE personnel are not. So the government tried a “foil a judicial order with this one quick trick!” maneuver by converting a DOGE staffer into a USAID official, which would then seem to grant him the mantle of legitimacy to effectively ratify his team’s own illegitimate actions. But it didn’t work: the court subsequently reiterated that the injunction kept anyone connected with DOGE out of the agency’s business.
But it does seem clear that there is no meaningful separation between Musk/DOGE and any appointed officials running USAID, and that these appointees are essentially window-dressing there only to allow the unlawful force of Musk and DOGE to take over. These decisions by the agency officials to let Musk and DOGe to control so much themselves should therefore be found unlawful, and courts are starting to get there, recognizing in other cases how the APA in particular finds such abdication of good judgment, to let DOGE loose, to be arbitrary and capricious. The USAID cases challenging the firings and contract terminations have so far had more trouble using this argument to get usable injunctive relief, although some of that difficulty may be due to them being some of the earliest challenges brought against any of what Musk and DOGE have wrought. The more DOGE has done, the more subsequent courts have noticed, and although courts are generally still being extremely conservative in how they have been ruling against the government, each time one does it does seem to make the next such decision against the government more likely. But the reasoning of each decision still matters and how courts find standing, or likelihood of irreparable harm, is still is very specific to the particulars of each case, including the agency or agencies involved, what actions are being challenged, with what claim(s), by whom, and against whom.
Still, we’ve not really had a chance yet to see too many decisions be made in the wake of this one. Having a court at last officially credit the arguments that any DOGE authority was falsely claimed seems an important point to be reached and one that hopefully should affect all the other cases, including in the ones requesting injunctive relief against what DOGE is doing. Right now all these cases are being litigated against the big black box of the government, and having to swim upstream against a lot of doctrine that says the government is due a lot of deference in how it uses its own constitutionally-appointed power—and perhaps rightly so, if that constitutionally-appointed power is to not be unduly obstructed.
But with DOGE it is different because what it is finally starting to dawn is the judicial recognition that DOGE has no constitutionally-appointed governmental power. And these cases, rather than being about the government using its lawful power badly, as most constitutional challenges are, are really about an unlawful power being allowed to do anything. Injunctive relief should therefore be much more readily available because it is not relief from government power itself that is being sought but by a separate, unentitled, invading power running around and causing immense and exigent harm.