DOGE Stopped In Its Tracks

Today another federal judge threw sand in the Trump administration’s gears, in an order that is more important than the others that we have seen so far. Plaintiffs in the case are unnamed employees of USAID. Defendants are Elon Musk and the Department of Government Efficiency. The judge is Theodore Chuang of the District of Maryland.

Judge Chuang granted the plaintiffs’ motion for a temporary restraining order, finding that their constitutional claims are likely to succeed on the merits. Plaintiffs raise two distinct arguments. The first relates to the Appointments Clause of the Constitution; plaintiffs allege that Elon Musk could not make the decision to effectively shut down USAID because he is acting as an Officer of the United States without having been duly appointed to such a role.

This is a relatively minor issue that President Trump can remedy. Based on Judge Chuang’s lengthy analysis of the facts and the law, it seems likely that plaintiffs’ argument here is well taken.

The plaintiffs’ second argument is more fundamental and will occupy the federal courts for years to come. It is based on separation of powers. While once again, Judge Chuang’s opinion on this subject is long and technical, the basic question is whether the president can do away with an administrative agency that has been established by Congress. Judge Chuang holds that he cannot.

It must be stressed that Chuang, an Obama appointee, is a lawyer and judge of considerable accomplishment. His opinion, which you can read at the link above, is long, thorough, careful, and generally fair. It is in some ways restrained: thus, Chuang does not reach the separate argument raised by plaintiffs that the administration has violated separation of powers principles by “the unlawful obstruction of congressionally appropriated funds.” Since there will be few instances where Trump wants to abolish an entire agency, in most DOGE cases that will be the issue.

Ultimately the Supreme Court will resolve the unsettled questions about the respective roles of Congress and the executive in appropriating and spending money. It seems remarkable that basic questions about their respective powers remain unsettled after more than 200 years, but that is the case. Meanwhile, Trump needs to either nominate Elon Musk as an Officer of the United States and get him confirmed, or treat him simply as a White House adviser, with decisions and orders coming from Trump himself or from cabinet officers.