Judge Tanya Chutkan, who had presided over the now-defunct prosecution of Trump by Jack Smith, has denied a temporary restraining order in a case brought by 14 states which, if granted, would have effectively ousted DOGE from any ability to operate.
From the Memorandum Opinion and Order:
“Based on the parties’ briefing, oral argument, and the current record, the court finds that Plaintiffs have not carried their burdenof showing that they will suffer imminent, irreparable harm absent a temporary restraining order, and therefore Plaintiffs’ motion is DENIED.”
MORE TO FOLLOW
This case, unlike many others, does not involve alleged privacy violations. It says that Musk and DOGE’s roles violate the appointment clause of the constitution. From the Order:
Plaintiffs brought this action for declaratory and injunctive relief, alleging that Musk’s actions violate the Appointments Clause of the U.S. Constitution because he has not been nominated by the President and confirmed by the Senate as an “Officer[] of the United States,” U.S. Const., Art. II, § 2, cl. 2; Compl. ¶¶ 253–60, and that Musk and DOGE lack statutory authority for their actions, Compl. ¶¶ 261–72. Plaintiffs allege that Musk “exercises virtually unchecked power across the Executive Branch, making decisions about expenditures, contracts, government property, regulations, and the very existence of federal agencies.” Id. ¶ 67.***On February 14, 2025, Plaintiffs moved for a TRO to enjoin eleven categories of conduct by Musk and DOGE. Pls.’ Proposed TRO, ECF No. 6-13.2 That day, the court held a hearing during which Plaintiffs significantly narrowed the scope of their requested relief. At the court’s request, Plaintiffs filed a revised proposed TRO, which asks the court to enjoin Musk and DOGE Defendants from: (1) accessing, copying, or transferring any data systems in the Office of Personnel Management, and the Departments of Education, Labor, Health and Human Services, Energy, Transportation, and Commerce; and (2) terminating or otherwise placing on leave any officers or employees within those same agencies….”The court’s analysis here begins and ends with irreparable harm, “a threshold requirement in granting temporary injunctive relief.” ….On the record before it, the court cannot conclude that Plaintiffs satisfy the “high standard for irreparable injury.” Church, 573 F. Supp. 3d at 138 (quoting Chaplaincy of Full Gospel Churches v. England, 454 F.3d 290, 297 (D.C. Cir. 2006)). Plaintiffs’ declarations are replete with attestations that if Musk and DOGE Defendants cancel, pause, or significantly reduce federal funding or eliminate federal-state contracts, Plaintiff States will suffer extreme financial and programmatic harm: ***The court is aware that DOGE’s unpredictable actions have resulted in considerable uncertainty and confusion for Plaintiffs and many of their agencies and residents. See, e.g., Decl. of Ben Henderson ¶ 11, ECF No. 6-7; Decl. of Kimberly Bush-Koleszar ¶¶ 4-6, ECF No. 6-9. But the “possibility” that Defendants may take actions that irreparably harm Plaintiffs “is not enough.” …. It remains “uncertain” when and how the catalog of state programs that Plaintiffs identify will sufferPlaintiffs ask the court to take judicial notice of widespread media reports that DOGE has taken or will soon take certain actions, such as mass terminations. But these reports cannot substitute for “specific facts in an affidavit or a verified complaint” that “clearly show that immediate and irreparable injury, loss, or damage will result.” ….The court may take judicial notice of news articles for their existence, but not for the truth of the statements asserted therein….Plaintiffs have not adequately linked Defendants’ actions to imminent harm to Plaintiff States in particular.
The judge did express that the Appropriations Clause claim may have merit, but a TRO was not warranted:
That said, Plaintiffs raise a colorable Appointments Clause claim with serious implications. Musk has not been nominated by the President nor confirmed by the U.S. Senate, as constitutionally required for officers who exercise “significant authority pursuant to the laws of the United States.” United States v. Arthrex, Inc., 594 U.S. 1, 12 (2021) (citation omitted); Compl. ¶ 64; TRO Mot. Hr’g Tr. 29:07–22 (Feb. 17, 2025), ECF No. 27. Bypassing this “significant structural safeguard[] of the constitutional scheme,” Edmond v. United States, 520 U.S. 651, 659 (1997), Musk has rapidly taken steps to fundamentally reshape the Executive Branch, see Compl. ¶¶ 66–76; Pls.’ Reply at 1–3, ECF No. 21. Even Defendants concede there is no apparent “source of legal authority granting [DOGE] the power” to take some of the actions challenged here. See Defs.’ Notice at 2. Accepting Plaintiffs’ allegations as true, Defendants’ actions are thus precisely the “Executive abuses” that the Appointments Clause seeks to prevent. Edmond, 520 U.S. at 659. But even a strong merits argument cannot secure a temporary restraining order at this juncture.4Plaintiffs legitimately call into question what appears to be the unchecked authority of an unelected individual and an entity that was not created by Congress and over which it has no oversight. In these circumstances, it must be indisputable that this court acts within the bounds of its authority. Accordingly, it cannot issue a TRO, especially one as wide-ranging as Plaintiffs request, without clear evidence of imminent, irreparable harm to these Plaintiffs. The current record does not meet that standard.
So the case will continue. I doubt the Appropriations Clause claim ultimately holds up because Musk and DOGE have no decision-making power, they can only advise the president.
So this is another case where a Judge wisely has not taken the bait put out by the highly organized lawfare attempt to freeze the executive branch and to have Judges make crucial decisions as to how Trump staffs and runs his administration.
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