“Judge Chutkan still appears disinclined to legally bar Elon Musk and his allies [from] accessing federal agency data, saying the states didn’t [present] enough concrete facts for the extraordinary emergency relief,” Politico’s Kyle Cheney reports.
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Critically, Cheney adds that Judge Chutkan is “clearly skeptical of DOGE’s operations but said that can be hashed out in further litigation and many of the harms can be addressed later.”
Chutkan “agreed that Musk’s operations” via DOGE “were taking place in troubling secrecy. And she acknowledged that DOGE is operating so swiftly that it is difficult to reach quick conclusions about the legality of its moves,” Cheney reports at Politico.
“DOGE appears to be moving in no sort of predictable and orderly fashion and plaintiffs are obviously scrambling to find out what’s next,” Chutkan said Monday. “I don’t know if that’s deliberate or not.”
MSNBC legal analyst Adam Klasfeld reports on a critical exchange between Judge Chutkan and a government lawyer.
“When asked whether thousands of federal employees were fired last week, a government lawyer responds: ‘I have not been able to look into that independently, or confirm that.'”
“Judge Chutkan responds, incredulously: ‘The firing of thousands of federal employees is not a small or common thing. You haven’t been able to confirm that?'”
Politico also reports that attorneys for the largely blue states “argue that Musk’s influential role in the government violates the Constitution’s appointments clause, which generally requires that powerful officers in the executive branch are formally appointed by the president and confirmed by the Senate. A separate lawsuit federal employees filed in Maryland makes a similar argument.”
Judge Chutkan, Bloomberg News’ Zoe Tillman reports, “scoffed at DOJ’s claim that Musk has no ‘formal’ authority to make gov’t decisions.”
“Nowhere have my friends offered a shred of anything,” a U.S. Department of Justice lawyer said, “nor could they, to show that Elon Musk has any formal or actual authority to make any government decisions himself.”
“I think you stretch too far,” Judge Chutkan replied. “I disagree with you there.”
States are arguing that Elon Musk has effectively been granted “authority to make decisions for the U.S. government,” according to the DOJ’s written argument. MSNBC’s Adam Klasfeld posted a screenshot and highlighted the portion below:
“That premise is of course wrong,” DOJ asserts. “It rests entirely on conflating influence and authority. But 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.”
Klasfeld calls this “a key government defense to the Appointments Clause challenge of DOGE and Elon Musk’s authority.”
“Judge Chutkan’s skepticism on that issue, ultimately, could have more lasting significance than the current battle over the” restraining order.
Cheney adds that “Chutkan said she’ll try to rule within 24 hours. Don’t expect a restraining order, but she has asked for facts from DOJ — details about mass firings that have occurred and may occur in next 14 days — that could lead to an injunction.”
The original lawsuit charged, “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,” as ABC News reported.
