State Plaintiffs Lose A Disappointing Battle, While Musk And DOGE Get Closer To Losing The War

First, the bad news: a court yesterday declined to immediately enjoin Musk and DOGE, as New Mexico and 13 other states had asked it to do. But don’t panic: it was a heavy lift to get what they were asking for, and even though they didn’t get it now, their quest continues.

With this case the plaintiff states are swinging for the fences, asking for one big injunction to knock Musk and DOGE out of every agency.  It’s a strategy we haven’t really seen before, to aim for Musk and DOGE directly and with respect to all of their activities; most of the other litigation brewing seeks to take on their destructive meddling an agency at a time, if not also an activity at a time. Those cases also, although with some exceptions, sue the agency and its heads directly, to challenge the lawfulness of them having effectively handed over the keys to their agencies (and their computer systems) to these shmucks. Whereas this case, notably, was against the shmucks themselves, challenging their presence in government and how much false authority they’ve wielded over its operations (and computer systems). In this case, New Mexico v. Musk, the basic contention is that nothing in the Constitution allows Musk and DOGE to have had the power they’ve wielded, and they need to be made to stop wielding it. And by asking for a temporary restraining order (TRO) as a first step the states were also asking that they be made to stop yielding it asap.

But as the decision declining to grant the TRO notes, a TRO is “an extraordinary remedy,” and the states did not give the court what it needed to be able to award one, namely a showing of immediate, irreparable harm “‘both certain and great, actual and not theoretical, beyond remediation, and of such imminence that there is a clear and present need for equitable relief.'” The “‘possibility of irreparable harm’ is not enough,” but, per the court, that’s all the states managed to show:

On the record before it, the court cannot conclude that Plaintiffs satisfy the “high standard for irreparable injury.” 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 has sympathy for the situation the states find themselves in.

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.

But at the TRO stage the plaintiff states needed to show more than the “‘possibility’ that Defendants may take actions that irreparably harm Plaintiffs.” And it “remains ‘uncertain’ when and how the catalog of state programs that Plaintiffs identify will suffer.”

Of course, to everyone watching the news it doesn’t seem uncertain. But the court was clear that, although it could take judicial notice of the news, “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.’ Courts in these matters have only been granting TROs “[w]hen litigants have identified specific individuals or programs imminently targeted by Defendants,” but not when imminent harm has not been shown. For instance, the court cited the denial of a TRO in the Doe v. OPM case, on the basis that “Plaintiffs have failed to demonstrate that there is a significant risk that their .gov email addresses will be stolen or publicly disclosed in the next 14 days.” That’s the type of imminent specificity the courts need yet did not get here in this case.

But although the TRO was not granted—and on retrospect probably was never going to be, at least in the form that it was sought, given that “one big injunction to knock them out of every agency” the plaintiffs were asking for may inherently lack the specificity needed at the TRO stage (at best the plaintiffs probably could have only gotten a bunch of much narrower injunctions that still left Musk and DOGE free to do everything else not specifically covered by them, although that would still be very useful)—all is not lost.  In fact, the good news is that in many ways the decision denying it was a pretty big win.

For one thing, the decision denying the TRO provides something of a roadmap for all the other litigants who’ve yet to fully litigate their asks for one, to make sure they have the sort of evidence ready that the court wanted to see here, or, when it may be hard to nail down all the declarations needed given the speed that everything is happening, to perhaps forgo asking for one and instead try to expedite moving onto the next stage of the case: briefing for the preliminary injunction, which, with more opportunity to develop the record, may be easier to obtain. It also seems like the door may be left open for these states to try to seek a TRO again if they can identify the sort of imminent, specific harm that the court wanted to see, but it may make more sense to simply move onto briefing for the preliminary injunction as expeditiously as they can.

But the really good news from the case is that the court outright said that it believes the plaintiffs here had a case and that what Musk and DOGE have been doing is likely unconstitutional.

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 Page 9 of 10 Defs.’ Notice at 2. Accepting Plaintiffs’ allegations as true, Defendants’ actions are thus precisely the “Executive abuses” that the Appointments Clause seeks to prevent.

For right now such language is just dicta. But it is extremely persuasive dicta that other courts will give credence to. In fact, some of the good news here is that this decision makes it easier for the next court to echo it because it won’t have to be the first. It is hard for any court to come out with any sort of earthshattering ruling that substantially upends things, even when justice might require it. And in the long run we might not want courts to be so bold – in fact, it’s one of the reasons that so many rulings from judges like Cannon and Kacsmaryk have been so disturbing, not just in their results but in how immodest they were. Although it can be frustrating when the wheels of justice grind slowly, we get better, more sustainable results when courts do what they did here and act conservatively, holding legitimately-aggrieved plaintiffs’ feet to the fire to make sure that every judicial “i” is properly dotted before doing the big thing that will ultimately need to be done. Indeed, it may ultimately be good news that this court has done so here.

And of course it is also good news that it makes potential claims against Musk and DOGE directly more plausible. In fact, this decision should, if they had any sense (and who are we kidding there…), give them pause, because if it is ultimately found that they are acting without lawful authority then they will indeed be facing all sorts of personal liability for what they have been doing, of which the CFAA may be the source for some of it but likely not all, as their behavior manages to offend so many legal prohibitions normally guarding against the immense destruction they have caused to so much.

For right now, however, the illusion that they are a legitimate part of the government has been maintained, but in this decision was another important shot across the bow of their current government lawyers, who, as we saw in Monday’s declaration, for some reason did not seem to know their clients very well, given that they could not attest to what their clients had planned in terms of upcoming firings. As we suggested then, it was a filing that was too cute by half, because not only did it inexplicably fail to answer the judge’s actual inquiry about how many people the defendants (and remember, Trump is also a defendant) were planning to fire in the next two weeks but it was retroactively trying to manufacture a possible defense for Musk and DOGE, where there obviously was not one.

And the court saw what it was doing. Footnote one of the decision denying the TRO may be rendered in a small font but it is of huge implication:

Defendants filed a Notice and Declaration by Joshua Fisher, Director of the Office of Administration, responding to the court’s questions during the February 17, 2025 hearing. Defendants state: “Neither of the President’s Executive Orders regarding ‘DOGE’ contemplate—much less furnish—[] authority” to “order personnel actions at any of the agencies” specified. Defs.’ Notice at 2. Based on the Executive Orders’ plain text, “new career appointment hiring decisions” at each federal agency “shall be made in consultation with the agency’s DOGE Team Lead” and agencies “shall not fill any vacancies for career appointments that the DOGE Team Lead assesses should not be filled, unless the Agency Head determines the positions should be filled.” Exec. Order No. 14,210, 90 Fed. Reg. 9669 (Feb. 11, 2025). At a minimum, this language “contemplates” DOGE’s authority over personnel actions. Defense counsel is reminded of their duty to make truthful representations to the court. Fed. R. Civ. P. 11(b).

In other words, the court caught government lawyers making arguments that were obviously false (that Musk and DOGE had no authority to over federal personnel decisions when the exact opposite had been claimed by their other client, Trump). In this footnote the court basically tells those lawyers that they got away with it this time but they are unlikely to the next. So Musk, DOGE, and Trump may be fine with abusing the DOJ in all sorts of ways, including, in the case of Musk and DOGE, who are effectively private citizens, by having them provide their defense here, but there are limits to what those lawyers can do for them and the courts are going to enforce them.