Democrats’ Lawfare Threatens To Sideline Musk And DOGE

“If granted, the temporary restraining order, or TRO, will immediately halt the president and the federal agencies’ ongoing efforts to cut waste and fraud.”

Judge shopping: The Federal judge on the case is Barack Obama appointee Tanya S. Chutkan, the same radical left wing who refused to dismiss Special Counsel Jack Smith’s indictment against Trump following the Supreme Court’s decision on presidential immunity.

To date, most of the TROs trying to sideline @elonmusk and @DOGE have been toothless. That might change today if the Court grants the one requested by more than a dozen blue states to prevent Musk, DOGE, and anyone working with them from doing anything. 1/

— Margot Cleveland (@ProfMJCleveland) February 17, 2025

Related: Besides Bludgeoning The Constitution, The Judges Stopping DOGE Are Boosting Inflation

Current federal cases challenging Trump Administration actions with links to free docket at Courtlistener.

30/ Dellinger v. Bessent, D.C. Cir., 25-5028: Second appeal by Trump challenging TRO entered (first challenged Admin. Stay) order reinstatement of Dellinger as Special Counsel. https://t.co/VbOfPOdBxR

— Margot Cleveland (@ProfMJCleveland) February 16, 2025

Democrats’ Lawfare Threatens To Sideline Musk And DOGE

If granted, the temporary restraining order, or TRO, will immediately halt the president and the federal agencies’ ongoing efforts to cut waste and fraud.

By: Margot Cleveland, The Federalist, February 17, 2025:

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More than a dozen blue states which sued Elon Musk and DOGE on Thursday will push for an injunction against the Trump Administration later this morning. If granted, the temporary restraining order, or TRO, will immediately halt the president and the federal agencies’ ongoing efforts to cut waste, fraud, and the embedded members of the bureaucratic resistance. And unlike the various TROs entered to date in other cases which served merely as paper nuisances, a TRO freezing out Musk and DOGE would be devasting — both to the president’s agenda and our constitutional structure.

On Thursday, fourteen states filed a lawsuit against Elon Musk, DOGE (the Department of Government Efficiency), and President Donald Trump in a federal district court in Washington, D.C. The lawsuit, New Mexico v. Musk, alleged Musk, “an unelected, unconfirmed government official, is exercising unprecedented executive authority in violation the Appointments Clause of the Constitution.”

Soon after, the Plaintiff States moved for an emergency TRO, asking the court to immediately enjoin Musk, DOGE, “along with personnel associated with these entities,” from accessing any data from the various federal agencies, freezing or canceling any federal grants or contracts, or taking steps to fire or place employees on administrative leave.

On Friday, federal judge Tanya S. Chutkan held a hearing on the states’ motion for a TRO. Following the hearing, Chutkan, the Barack Obama appointee who refused to dismiss Special Counsel Jack Smith’s indictment against Trump following the Supreme Court’s decision on presidential immunity, entered an order directing the states to redraft and narrow their proposed TRO by 5:00 p.m. on Saturday — timing which suggested that the judge intended to expeditiously enjoin the Trump Administration.

The Trump Administration sensed as much too, responding to the states’ proposed TRO within hours, entreating the Court to, if it “is inclined to grant the States’s request,” delay any action until it could hold a hearing on Monday morning, to “allow Defendants sufficient time to submit a fuller response.” On Sunday, apparently acquiescing to the brief delay, Judge Chutkan entered an order setting an 11:00 a.m. hearing on the case.

While the Trump Administration’s weekend response was, by necessity, abbreviated, it nonetheless concisely established why no injunction — much less the overbroad and legally unsupported version sought by the blue states — should be granted.

Indeed, the TRO the Plaintiff States proffered to the Court on Saturday would ban Musk, DOGE, “and their agents, officers, and employees, or anyone acting in active concert with them,” from accessing data systems and information at a variety of federal agencies, including the Office of Personnel Management and the Departments of Education, Labor, Health and Human Services, Energy, Transportation, and Commerce. The proposed TRO would further prohibit Musk, DOGE, “and their agents, officers, and employees, or anyone acting in active concert with them,” from firing, furloughing, or otherwise placing on leave any employees working for those same agencies.

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As the Trump Administration stressed in its Saturday night response, the language is so “exceedingly broad” that, as written, it would even ban the President and Senate-confirmed officials from accessing data or terminating federal employees if they collaborate with Musk or DOGE in the decision-making process. More fundamentally, the Trump Administration’s response continued, the proposed injunction was completely disconnected to the Plaintiffs’ legal theories.

While the Court will assuredly benefit from a more fulsome response from the government before it rules on the TRO, the Trump Administration’s weekend filing already hammered the two fatal flaws underlying the states’ request for injunctive relief: The Plaintiff States have failed to establish either a likelihood of success on their underlying legal claims or an imminent injury flowing from the Defendants’ allegedly illegal conduct.

Here, the Trump Administration focused on the legal claims the Plaintiff States alleged in their complaint. The states alleged two separate counts — one premised on an alleged violation of the Appointments Clause of the Constitution and another that asserted DOGE acted beyond its statutory power.

“Both claims — the constitutional one, and its statutory counterpart,” the Defendants stressed, are premised on Musk and DOGE having the “authority to make decisions for the U.S. government.”

“That premise is of course wrong,” the Trump Administration countered, explaining that the theory “rests entirely on conflating influence and authority.”

Said otherwise, while Musk and DOGE have influence on both the president and the various agencies and their Senate-confirmed heads, they lack any independent “authority” to execute the decisions of which the Plaintiff States complain, such as freezing or cutting spending or terminating federal employees. In fact, as the Trump Administration explained in its Saturday filing, “stripped of their lengthy rhetoric, the States do not actually cite a single example of where Elon Musk (or anyone at [DOGE] has been given formal authority to exercise the sovereign power of the United States.” To the contrary, the government continued, the “only—example of any tangible action even affecting the States is a single paused grant from USAID,” but the record shows that “those decisions were made by properly named officers at USAID who were ultimately acting pursuant to an executive order issued by the President — nowhere is there any governmental action taken in the name of [DOGE].”

While the Plaintiff States highlight Musk’s public statements and posts on X to the effect that he or DOGE ended programs or funding, Trump has made clear that his administration is reviewing and approving any suggestions made by Musk and DOGE — and then only when the president agrees with the recommendations. That fact, coupled with the Plaintiff States’ inability to present any specific instance where Musk or DOGE acted with independent authority concerning the decisions of which they complain, should be fatal to the motion for a TRO because without a grant of “authority” there is no violation of law.