All of DOGE’s work could be undone as lawsuit against Musk proceeds

Elon Musk must defend himself against a lawsuit alleging that he unlawfully seized too much power as the leader of the Department of Government Efficiency (DOGE), a judge ruled Monday.

According to the plaintiffs, Musk needed Senate confirmation before directing DOGE on drastic actions like eliminating agencies, mass firings, and steep budget cuts. Allegedly going far beyond the authority granted in President Donald Trump’s most expansive DOGE executive orders, Musk took every inch of power granted and then increasingly used it to overreach unlike any presidential advisor who came before, the suit says.

In her opinion partly denying a motion to dismiss, US District Judge Tanya S. Chutkan did not buy the US government’s defense that Musk held no office formally established by law—and therefore did not need Senate confirmation and cannot be alleged to have exceeded his authority under the Constitution’s Appointments Clause.

“Nobody thinks, for instance, that the White House Chief of Staff or White House Counsel are officers in any fashion, despite the fact they may exercise tremendous influence across the government,” the government’s motion to dismiss said.

Chutkan called the defense “disquieting.”

“Defendants appear to make the extraordinary argument that an individual who holds an important office and wields immense power is not subject to the Appointments Clause so long as the office was unlawfully created, and the power was unlawfully seized,” Chutkan said.

“Under that interpretation, the President could evade Appointments Clause scrutiny by (1) usurping Congress’s power to create a principal office and assign it powers, and (2) unilaterally appointing an official to that office without Senate confirmation,” the judge continued. “The court will not countenance such a two-fold attack on Congress’s role in our system of checks and balances,” she wrote, noting that “if the President unilaterally creates a principal office, endows it with unlawful powers, and fills it without Senate confirmation, that is more—not less—reason for Appointments Clause scrutiny.”

Chutkan also declined to view Musk’s influence as akin to that of Trump’s cabinet members, writing that “the alleged powers of the head of DOGE are clearly weighty and important.”

For now, plaintiffs have shown enough to allege that as DOGE’s head, Musk exercised “almost ‘unchecked’ discretion” and received “minimal supervision.” Reporting only to Trump, it seemed plausible that Musk could take any step he wanted, knowing he would get the “rubber stamp” of the president.

At this stage, the judge emphasized that “plaintiffs have adequately pled that the head of DOGE is an officer of the United States” and that the position still unlawfully exists in government. And while DOGE is scheduled for termination on July 4, 2026, “there is no termination date for the overarching DOGE entity or its leader, suggesting permanence,” plaintiffs had noted.

The lawsuit was raised by nonprofits that were allegedly harmed by DOGE’s broad government cuts. Their case was later consolidated with a similar lawsuit brought by a coalition of states led by New Mexico. It was filed in February 2025, before Musk left DOGE in May, and plaintiffs alleged that their claims about Musk’s unchecked power also apply to his successors.

In a loss, every harmful move that DOGE made could possibly be undone.

“If Plaintiffs prevail on their claim that Musk was not constitutionally appointed and therefore lacked authority to exercise the power of a principal officer, the court could vacate Musk-initiated policies or cuts that are causing Plaintiffs ongoing harm,” Chutkan wrote.

Musk may regret X posts bragging about DOGE

Unsurprisingly, Musk’s posts on X were cited in the lawsuit as part of “ultra vires” claims that the executive branch made an “extreme legal error” in allowing him to assume an outsize government role.

On X, Musk made several posts suggesting that DOGE was operating at his direction, plaintiffs alleged in their complaint. That included posts like “USAID is a criminal organization. Time for it to die.” Additionally, Musk posted, “What is this ‘Department of Education’ you keep talking about? I just checked and it doesn’t exist,” prior to Trump confirming he told Musk to look into the department. And perhaps most damning to the government’s defense, in reference to the Consumer Financial Protection Bureau—which senators claimed Musk long wanted to kill off—Musk posted, “CFPB RIP.”