Federal Judge Will Not Issue Restraining Order Against DOGE

Yesterday, U.S. District Judge Tanya Chutkan held a hearing to decide whether or not to grant a request for a temporary restraining order on DOGE, limiting its access to several government agencies. The request was part of a lawsuit brought by Democratic AGs in 14 states. However, at yesterday’s hearing it appeared the judge wasn’t convinced a TRO was needed.

The judge said that in order to issue such an urgent temporary restraining order, the states would have to prove a threat of “extreme” and “imminent harm” that “can’t be undone” — and although having to “scramble to rehire” laid-off employees might be difficult and challenging, it can be done.

“I’m not seeing it so far,” she said of the harms the plaintiffs are claiming.

The judge promised to issue her decision with 24 hours and today, as expected, she denied the request.

U.S. District Judge Tanya Chutkan rejected a request for a temporary restraining order sought by 14 Democrat-led states as they pursue a challenge to Musk’s actions. The states have argued that Musk, who the White House said is categorized as a special government employee, has unchecked authority and is violating the Constitution’s Appointments Clause.

The effort to stop DOGE or at least slow it down by restricting its access to several agencies was one of the biggest ones Democrats have undertaken thus far so today’s decision represents a setback for their efforts.

The decision by US District Judge Tanya Chutkan is an early blow to efforts by a group of Democratic state attorneys general to hamstring Musk and DOGE as they undertake efforts to upend the federal workforce.

The attorneys general sued Musk last week, arguing that his role in the government is a violation of the Constitution’s Appointments Clause, which gives presidents the power to appoint officials who must then be confirmed by the Senate.

As mentioned, the Democratic AGs tried to force the Trump administration to submit Musk’s name to the Senate for confirmation a move which would give them a platform to attack him and be seen opposing him in a very public setting. The lawsuit was led by the AG for New Mexico, Raul Torrez, who announced it with a public Zoom meeting full of the usual whining about an “unelected billionaire” and the “threat to democracy” he represented.

“Empowering an unelected billionaire to access Americans’ private data, slash funding for federal student aid, stop payments to American farmers and dismantle protections for working families is not a sign of President Trump’s strength, but his weakness,” said New Mexico Attorney General Raúl Torrez. “Despite his claim to be operating under a mandate from the American people, the President seems afraid to get Congressional approval for his ‘move fast and break things’ approach to the Presidency.” 

“The founders of this country would be outraged that, 250 years after our nation overthrew a king, the people of this country—many of whom have fought and died to protect our freedoms—are now subject to the whims of a single unelected billionaire,” said Arizona Attorney General Kris Mayes. “Allowing one individual to flout the law without consequence threatens our entire constitutional system. We cannot allow our democratic processes to be hijacked by immense wealth and privilege.”…

“There is no greater threat to democracy than the accumulation of state power in the hands of a single, unelected individual,” said AG Raúl Torrez. “Although our constitutional system was designed to prevent the abuses of an 18th-century monarch, the instruments of unchecked power are no less dangerous in the hands of a 21st-century tech baron.” 

But the Justice Department responded that Musk was not exercising any authority of his own but merely acting as an advisor to President Trump.

Justice Department lawyers wrote in a court filing that the states’ claim that Musk has the authority to make decisions for the government is “wrong,” and “rests entirely on conflating influence and authority.”

“An advisor does not become an officer simply because the officer listens to his advice. And stripped of their lengthy rhetoric, the states do not actually cite a single example of where Elon Musk (or anyone at USDS) has been given formal authority to exercise the sovereign power of the United States,” they wrote, referring to the U.S. DOGE Service, the entity’s formal name.

I suspect Democrats really thought this was going to be a gimme given that they got this lawsuit before Judge Chutkan who previously was in charge of the criminal case Jack Smith brought against President Trump. The New Republic was salivating over the prospect just a few days ago.

Chutkan gained the national spotlight as she refused to accept arguments from Trump’s legal team at nearly every step in the January 6 case. She infuriated Trump when she placed a gag order on him in October 2023 and said that his presidential candidacy did not give him “carte blanche” to vilify public servants “who are simply doing their job.” Trump lashed out at the judge, calling her “the most evil person” as she seemed unwilling to bend to the Supreme Court’s immunity ruling.

Now Chutkan will preside over a pivotal lawsuit that will determine the future of the U.S. government and the second Trump administration. The suit directly attacks Musk as a “21st century tech baron,” claiming that “the scope and reach of his executive authority appear unprecedented in U.S. history.”

Of course this was just the preliminary part of the case involving the TRO. Judge Chutkan could still turn out to be a friend to Democrats in the case itself. We’ll have to wait and see how that plays out.