On January 20, 2025, President Trump issued an Executive Order purporting to establish the “Department of Government Efficiency” (“DOGE”).
Lambert here: I think “purporting” is rather fine.
Plaintiffs’ Complaint brings four claims: Count One asserts that the DOGE Defendants are acting ultra vires—that is, terminating grants, firing federal workers, and undertaking other action “despite lacking lawful authority.” Compl. ¶¶ 322–25. Count Two alleges that the DOGE Defendants are violating the separation of powers by cancelling grants and firing workers for which Congress has provided appropriations and by otherwise “refusing to spend money appropriated by Congress.” Id. ¶¶ 326–29. Count Three claims that Elon Musk—sued in his official capacity as the head of DOGE—is violating the Appointments Clause by wielding the power of a principal officer without having received Senate confirmation. Id. ¶¶ 330–38. And Count Four claims that Agency Defendants have undertaken unlawful agency action in violation of the Administrative Procedure Act (“APA”) by, among other things, terminating grants and firing federal workers. Id. ¶¶ 339–42. Although Elon Musk has left government, see Decl. of Amy Gleason, ECF No. 117-1, Plaintiffs’ claims against him in his official capacity continue to run against his successor. See Fed. R. Civ. P. 25(d) (“An action does not abate when a public officer who is a party in an official capacity dies, resigns, or otherwise ceases to hold office while the action is pending. The officer’s successor is automatically substituted as a party.”); see also infra Section III.B.c.
Defendants move to dismiss for lack of subject matter jurisdiction or, in the alternative, failure to state a claim. For the reasons stated below, the court will GRANT Defendants’ Motion with respect to Plaintiffs’ separation of powers and APA claims and DENY the Motion with respect to Plaintiffs’ Appointments Clause and ultra vires claims.
Plaintiffs have, however, stated a claim under the Constitution’s Appointments Clause. “That Clause specifies how the President may appoint officers who assist him in carrying out his responsibilities.” United States v. Arthrex, Inc., 594 U.S. 1, 10 (2021). The Supreme Court has held that the Clause requires that “[p]rincipal officers must be appointed by the President with the advice and consent of the Senate, while inferior officers may be appointed by the President alone, the head of an executive department, or a court.” Id. (emphasis in original). Plaintiffs allege that the head of DOGE is a principal officer who has not received Senate confirmation.
Plaintiffs allege that the head of DOGE is a principal officer who has not received Senate confirmation. Compl. ¶¶ 2, 332. “The Senate’s advice and consent power is a critical ‘structural safeguard of the constitutional scheme,’” which seeks to guard against “the appointment of unfit characters” to high public office. NLRB v. SW Gen., Inc., 580 U.S. 288, 293 (2017) (quoting Edmond v. United States, 520 U.S. 651, 659 (1997)) (cleaned up); see also Freytag v. Comm’r, 501 U.S. 868, 883 (1991) (explaining that the Appointments Clause sought to remedy “one of the American revolutionary generation’s greatest grievances against executive power,” “the manipulation of official appointments” (citation omitted)); Edmond, 520 U.S. at 659–60 (the requirement of Senate confirmation “serves both to curb Executive abuses of the appointment power … and to promote a judicious choice of [individuals] for filling the offices of the union” (cleaned up)). Defendants do not claim that the Senate has confirmed the head of DOGE. Instead, they contend that the head of DOGE is not an officer of the United States, and his appointment therefore does not implicate the Appointments Clause.
Plaintiffs have adequately pled that the head of DOGE is an officer of the United States. “In the constitutional context, an ‘officer’ is someone who”: (1) “‘occupies a continuing position established by law,’” and (2) “‘exercises significant authority pursuant to the laws of the United States.’” Al Bahlul v. United States, 967 F.3d 858, 869 (D.C. Cir. 2020) (quoting Lucia, 585 U.S. at 245). The Complaint sufficiently alleges both.
Plaintiffs have also stated a claim that DOGE Defendants are acting ultra vires—that is, in excess of any lawfully conferred authority. See Compl. ¶¶ 117–21, 264–66, 323–25 (alleging that DOGE Defendants are directing agency officials to terminate grants, cancel payments, cut funding, and shutter agencies—and undertaking such action themselves—without lawful authority).
An executive official’s power to act on the President’s behalf “must stem either from an act of Congress or from the Constitution itself.” Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 585 (1952). “When an executive [official] acts ultra vires, courts are normally available to reestablish the limits on his authority.”
Plaintiffs have plausibly alleged that DOGE Defendants are ordering agency officials to terminate grants and cut spending without any authority to do so. In support of their allegations, Plaintiffs have pointed to public statements by the President, DOGE officials, and other administration officials which support their allegations that DOGE has seized an expansive role in the federal government. See, e.g., Compl. ¶¶ 133, 135, 151, 155–59, 162, 164–65, 172, 192. For example, a DOGE official stated publicly that “DOGE just TERMINATED a $2.3 MILLION contract” and that DOGE was “shutting [USAID] down.”
Defendants next contend that Plaintiffs fail to state an ultra vires claim because they “fail to identify any specific statute” that Defendants have violated. MTD at 43. … Plaintiffs contend that Defendants are exercising immense power without any grant of statutory authority whatsoever. That is the sort of “extreme legal error” that can sustain a claim for ultra vires review….
Plaintiffs allege that Defendants are acting without any grant of authority whatsoever. Nothing in Nuclear Regulatory Commission [v. Texas] rules out the availability of ultra vires review in such extraordinary circumstances.
Defendants fleetingly suggest that their conduct is authorized by 5 U.S.C. § 3161, which provides that a “temporary organization” may be established by executive order “for a specific period not in excess of three years for the purposes of performing a specific study or other project.” See MTD at 43; see also Defs.’ Reply at 24–25. But it would stretch § 3161’s use of the term “project” too far to find that it authorizes officials to terminate grants, fire federal workers, and shutter agencies without any other source of statutory authority. See West Virginia v. EPA, 597 U.S. 697, 721 (2022) (Congress does not delegate “sweeping and consequential” authority over matters of great “economic and political significance” “in so cryptic a fashion.” (cleaned up)). Thus, Defendants cannot invoke § 3161 in a last-ditch attempt to avoid ultra vires review.
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