State of New Mexico v. Musk
Not available in provided text (2025)
Rule of Law:
The Constitution's Appointments Clause requires individuals who occupy continuing positions established by law and exercise significant authority on behalf of the United States to be constitutionally appointed, and the Executive Branch acts ultra vires when its actions lack express or implied authorization from Congress or the Constitution.
Facts:
- On January 20, 2025, President Trump issued Executive Order No. 14,158, creating the U.S. Department of Government Efficiency (DOGE) by renaming the U.S. Digital Service, and simultaneously created the DOGE Service Temporary Organization within DOGE, set to terminate on July 4, 2026.
- President Trump instructed the DOGE Administrator to commence a 'Software Modernization Initiative' and ordered federal agencies to grant DOGE full and prompt access to their unclassified records, software, and IT systems, overriding existing barriers.
- Through subsequent Executive Orders, President Trump expanded DOGE's authority to advise on federal hiring, prohibit agencies from filling certain vacancies, identify federal funding for 'illegal aliens,' review regulations, and terminate discretionary spending.
- Elon Musk, formally classified as a 'special Government employee,' allegedly leads DOGE, directs DOGE personnel, and 'exercise[s] virtually unchecked power' across the Executive Branch, making decisions about expenditures, contracts, government property, regulations, and the existence of federal agencies.
- Musk publicly stated intentions to 'shut down' or 'woodchip' agencies like USAID and CFPB, and DOGE personnel allegedly halted federal payments, cancelled hundreds of federal contracts, placed numerous federal employees on administrative leave, and obtained unauthorized access to secure agency databases.
- As a result of DOGE's actions, Washington State University did not receive over $9 million in expected USAID funds, and New Mexico's Mining and Minerals Division was unable to access its $6 million in federal funding for critical safety programs, leading to direct financial and programmatic harm to the states.
Procedural Posture:
- On February 13, 2025, fourteen states, led by New Mexico, filed an action for declaratory and injunctive relief in the U.S. District Court for the District of Columbia against Elon Musk, DOGE, U.S. DOGE Service Temporary Organization, and President Trump.
- The states immediately moved for a Temporary Restraining Order (TRO) to enjoin Musk and DOGE from accessing data or terminating federal employees, which the District Court denied on February 18, 2025, finding insufficient evidence of imminent, irreparable harm.
- The District Court permitted both parties to proceed with discovery motions and motions to dismiss, scheduling briefing for States' expedited discovery motion and Defendants' motion to dismiss.
- On March 7, 2025, Defendants (Musk, DOGE, U.S. DOGE Service Temporary Organization, and President Trump) filed a motion to dismiss for lack of subject matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1) and failure to state a claim under Federal Rule of Civil Procedure 12(b)(6).
- On March 12, 2025, the District Court granted in part and denied in part the States' request for expedited discovery, ordering Defendants to respond by April 2, 2025.
- Defendants sought an emergency stay and writ of mandamus from the D.C. Circuit Court of Appeals to quash the discovery order.
- On March 26, 2025, the D.C. Circuit granted the stay, concluding the District Court should decide the motion to dismiss before allowing discovery.
- The District Court then stayed discovery and proceeded to rule on Defendants' motion to dismiss.
Premium Content
Subscribe to Lexplug to view the complete brief
You're viewing a preview with Rule of Law, Facts, and Procedural Posture
Issue:
Does the complaint plausibly allege that the President's creation of the U.S. Department of Government Efficiency (DOGE) and the appointment of Elon Musk as its leader, who allegedly exercises significant authority over federal agencies and funds, violate the Appointments Clause of the U.S. Constitution or constitute actions in excess of statutory authority, thereby overcoming a motion to dismiss?
Opinions:
Majority - Tanya S. Chutkan
No, the President's creation of DOGE and the alleged actions of Elon Musk as its leader plausibly violate the Appointments Clause and constitute actions in excess of statutory authority, thus the motion to dismiss is denied for Musk, DOGE, and DOGE Service Temporary Organization. The court found that the plaintiff states adequately alleged Article III standing based on financial harm (loss of federal funds to state universities and agencies, like New Mexico's MMD and Washington State University) and unauthorized access to private information (New Mexico's sensitive data provided to federal agencies). These harms were concrete, particularized, actual or imminent, and directly traceable to Defendants' actions and redressable by judicial relief. Regarding the Appointments Clause claim, the court reasoned that special government employees are not automatically exempt from Appointments Clause requirements. It found that Musk's alleged position as DOGE's leader plausibly qualifies as a 'continuing and permanent' office, not 'occasional or temporary,' given DOGE's lack of a termination date and Musk's pervasive alleged influence. The court rejected Defendants' argument that an office must be 'established by law' by Congress to trigger the Appointments Clause, calling it a 'perverse reading' that would allow the Executive to evade review by acting without legislative authority. The court further concluded that States plausibly alleged Musk 'exercises significant authority' by controlling federal expenditures, contracts, property, and the existence of federal agencies, possessing significant discretion, and reporting only to the President, without meaningful supervision. The court distinguished Andrade v. Regnery, noting that the case at bar alleges Musk directs duly appointed officials through threats, rather than being a staff member carrying out policies of appointed officials. For the ultra vires claim, the court applied a refined version of the Leedom v. Kyne test, requiring plaintiffs to show that (1) equitable review is not expressly precluded, (2) there is no apparent alternative review procedure, and (3) the Executive plainly acts in excess of delegated powers and contrary to law. The court found no express preclusion, and that President Trump attempted to insulate DOGE from APA review, leaving no apparent alternative. It concluded that States adequately alleged Musk and DOGE's conduct exceeds the authority granted by the temporary organization statute (5 U.S.C. § 3161), which is limited to 'performing a specific study or other project' and grants no substantive delegation of powers to the overarching DOGE entity, nor is there other statutory or constitutional authority for DOGE's broad actions. The court cited Youngstown Sheet & Tube Co. v. Sawyer, emphasizing that presidential power must stem from Congress or the Constitution, not unilateral presidential policy.
Analysis:
This case significantly reinforces the constitutional separation of powers, particularly regarding the Appointments Clause and limits on executive authority. It clarifies that the Executive cannot circumvent constitutional appointment requirements by designating individuals as 'advisors' or 'special government employees' if they de facto occupy continuing positions exercising significant authority. Furthermore, the ruling emphasizes that the President cannot unilaterally create federal agencies or assign them powers beyond statutory or constitutional authorization, preventing an unchecked expansion of executive power and ensuring judicial review of such actions. This decision provides a crucial check on presidential attempts to restructure the federal government without legislative consent, safeguarding the integrity of the constitutional scheme.
