No Personal Liability For DOGE Yet, But With Two More Lawsuits We Get Closer

I'm going to keep pounding the drum for personal liability against Musk and DOGE, partly to scare them into backing off from their unlawful seizure of our government, and eventually to compensate us for the immense harm they've caused. So far it doesn't seem like anyone has tried to personally sue them for damages, but several lawsuits are taking what might be a predicate step to establish the lawlessness of their claimed power, upon which liability claims would later be based. In addition to the AFGE litigation against OPM we already wrote about, which also names OPM itself for it wrongfully giving DOGE access to its systems, and the states' lawsuit against the Treasury department for giving DOGE access to theirs, now we have (at this writing at least) two more lawsuits. But while those lawsuits were directed at specific agencies and the wrongfulness of Musk and DOGE's misuse of power at these agencies, these new lawsuits come gunning for Musk and DOGE and their illegal seizure of power generally.

Although the lawsuits have some differences-including in plaintiffs, with one being filed by 14 states and the other by 26 current and former USAID employees and contractors-they both make the same argument: the power that Musk and DOGE have been wielding is constitutionally impossible for them to wield.

They both base this argument on the Appointments Clause of the Constitution, but we'll use the states' New Mexico v. Musk complaint to illustrate how. As it sets forth:

The Founders of this country fought for independence from the British monarchy due in no small part to the King's despotic power to create an unlimited number of governmental offices and to fill those offices with the King's supporters. In fact, this practice so severely undermined the Founders' freedoms that it is a listed grievance in the Declaration of Independence. Informed by that history, the Framers of the Constitution crafted the Appointments Clause to protect against such tyranny in our system of government. The Appointments Clause was designed to buttress the separation of powers in two ways: first by requiring that Congress create an office before the President can fill it, and second by requiring that the Senate confirm a nominee to an office created by law. These limitations on the President's power make executive appointments accountable to Congress and make the Senate's confirmation decisions accountable to the people. See United States v. Arthrex, 594 U.S. 1, 12 (2021). In this way, the Appointments Clause serves a vital role in curbing Executive abuses of power.

Yet here we have Musk wielding a shocking amount of power, the complaint continues:

Mr. Musk's seemingly limitless and unchecked power to strip the government of its workforce and eliminate entire departments with the stroke of a pen or click of a mouse would have been shocking to those who won this country's independence. There is no office of the United States, other than the President, with the full power of the Executive Branch, and the sweeping authority now vested in a single unelected and unconfirmed individual is antithetical to the nation's entire constitutional structure.

We have an Appointments Clause for this very reason, the complaint reminds, because it prevents one branch from aggrandizing its power" or dispensing it too freely . . . to inappropriate members of the Executive Branch." It explains that there are three types of personnel that can work for the Executive Branch, Principle Officers," Inferior Officers," and employees. The last category doesn't require Senate confirmation, but it also isn't endowed with the sort of executive power that Musk has been claiming. The other categories are, which is why they require nominations by the President and Senate approval, unless Congress has already passed a law foregoing that process. But Congress can only do that for inferior officers, it has not done so here, and in any case Musk is acting more like a Principle Officer anyway.

Furthermore, even for Principle Officers the President simply can't make up a job with such power and appoint someone to it. And even Justice Thomas agrees! The complaint cites what he wrote less than a year ago in Trump v. US:

Importantly, the Appointments Clause only grants the President the power to nominate officers to offices that Congress has already established by Law." U.S. Const. art. II, 2, cl. 2. If Congress has not reached a consensus that a particular office should exist, the Executive lacks the power to unilaterally create and then fill that office." Trump v. United States, 603 U.S. 593, 650 (2024) (Thomas, J., concurring). By keeping the ability to create offices out of the President's hands, the Founders ensured that no President could unilaterally create an army of officer positions to then fill with his supporters. Instead, our Constitution leaves it in the hands of the people's elected representatives to determine whether new executive offices should exist." Id. at 646 (Thomas, J., concurring).

Yet here we are, with Trump having done exactly what Justice Thomas said he could not, for the very reasons Justice Thomas himself said he could not.

The complaint then takes 30 pages to document Musk and DOGE's unlawful rampage through executive branch agencies, in what is surely only scratching the surface of the full depth of how he has abused his unlawful power, and still continues to abuse it.

And so the lawsuit asks for this power to be enjoined so that Musk and DOGE are forced to stop their destruction. In fact, it's also now asked for a temporary restraining order to get Musk and DOGE to stop what they are doing immediately:

[T]he States ask the court to issue a temporary restraining order that immediately and temporarily, until such time as the Court may hear a motion for preliminary injunction, orders Mr. Musk to identify all ways in which any data obtained through unlawful agency access was used, including whether it was used to train any algorithmic models or create or obtain derivative data, orders Mr. Musk to destroy any copies or any derivative data from such unauthorized access in his or DOGE's possession, custody, or control, and bars Mr. Musk and personnel associated with DOGE from:
(a) ordering any change in the disbursement of public funds by agencies;
(b) extending offers on behalf of the United States that would bind the government to an
appropriation that has not been authorized by law;
(c) cancelling government contracts;
(d) disposing of government property;
(e) ordering the rescission or amendment of regulations;
(f) making personnel decisions for agency employees;
(g) taking steps to dismantle agencies created by law or otherwise asserting control over
such agencies, including, e.g., placing employees on administrative leave;
(h) accessing sensitive and confidential agency data, using agency data for other than its
authorized purpose;
(i) altering agency data systems without authorization by law and without taking all
appropriate protections against cybersecurity risks;
(j) engaging in any other conduct that violates the Appointments Clause or exceeds
statutory authority.

But beyond that the complaint also asks for declaratory relief such that a court finally speaks to the unlawful nature of Musk's power (as well as that of its DOGE agency, which, as the complaint explains, is also malformed if it is to claim the sort of supervisory power that it has, which is a power that can only be endowed by Congress):

DOGE has purported to exercise authority of its own, and not merely to have acted as an adviser to the President. Administrative agencies are creatures of statute. They accordingly possess only the authority that Congress has provided." Nat'l Fed'n of Indep. Bus. v. Dep't of Lab., Occupational Safety & Health Admin., 595 U.S. 109, 117 (2022) (per curiam). Congress has not provided any authority to DOGE. The Constitution does not provide any authority to DOGE. The temporary organization statute, 5 U.S.C. 3161, [that Trump claimed in his Executive Order was empowering DOGE] does not provide DOGE with the authority it has purported to exercise. That statute provides that a temporary organization" is defined as an organization established by law or Executive order for a specific period not in excess of three years for the purpose of performing a specific study or other project." 5 U.S.C. 3161(a)(1) (emphasis added). There is no plausible definition of project" that would include DOGE's attempt to remake the entire Executive Branch, as described above, or to destroy agencies, fire personnel, halt funding, or dispose of government property.

In asking for declaratory relief a few things are accomplished. For one thing, it gives those whom Musk and DOGE are bossing around the ability to say no. In fact, if gives them the obligation to say no, because what they are being asked to do would be an unlawful order and thus unlawful for them to do. (Of course, the injunction/TRO would also restrict Musk and DOGE from even making such demands.)

But it also inches us forward to the real prize here: holding everyone involved with DOGE personally liable for the harm they have caused. By establishing that what they have done has been unlawful it provides the predicate basis for potentially all sorts of forms of liability, including the CFAA, which the USAID workers suit also provides more evidence of liability for, including in its allegations that DOGE has exfiltrated USAID data. See page 6-7 of the complaint:*

J. Doe 2 understands that the DOGE personnel had administrative privileges into all the USAID systems and tools and that DOGE personnel took information out of the agency and sent it elsewhere. DOGE's actions have caused J. Doe 2 emotional injury, as J. Doe 2 is aware of the extent of confidential information that has been breached and the privacy laws broken.

And the declaratory judgment would help overcome another legal issue: whether anyone associated with DOGE would be entitled to any sort of governmental immunity for the harm they've caused. This will be an issue to analyze further, because we have, and would normally want to have, some immunity shielding government officials from liability for doing their jobs, if we are going to leave them sufficiently free to do their jobs. But here no one in DOGE actually had a job that would have entitled them to do what they have done. Which is what these 14 states are asking a court to finally and declaratively say.

* Note: since writing this post the court struck the USAID workers' complaint for not complying with local rules. The plaintiffs have seven days to correct it and presumably will. I'm leaving it included in this post here because even if they don't refile, the allegations made by the USAID workers the first time around still need to see the light of day. A hearing was also held on the TRO, with judgment withheld for the moment.