Judge Questions DOGE Constitutionality
The unorthodox non-agency agency run by no one in particular may violate the basic rules of our system.
NYT (“Judge Questions Constitutionality of Musk’s Cost-Cutting Operation“):
A federal judge in Washington said on Monday that the way the Trump administration set up and has been running Elon Musk’s so-called Department of Government Efficiency may violate the Constitution.
The skepticism expressed by the judge, Colleen Kollar-Kotelly, did not come as part of a binding ruling, but it suggested that there could be problems looming for Mr. Musk’s organization, which is also known as the U.S. DOGE Service.
Sadly, these days I am always compelled to look up a judge to see which President appointed them given the presumption that they’re all partisan actors. In the case of Kollar-Kotelly . . . it’s complicated.
Judge Kollar-Kotelly was appointed to the United States District Court in May 1997. She received a B.A. in 1965 from The Catholic University of America and a J.D. in 1968 from Columbus School of Law, The Catholic University of America. Following law school, she served as law clerk to Judge Catherine B. Kelly of the District of Columbia Court of Appeals. From 1969 to 1972, Judge Kollar-Kotelly was an attorney in the Criminal Division of the U.S. Department of Justice and then served as the chief legal counsel to Saint Elizabeths Hospital until 1984. She was appointed Associate Judge of the D.C. Superior Court in October 1984, and served as Deputy Presiding Judge of the Criminal Division from 1995 until her appointment to the federal bench. Judge Kollar-Kotelly has been a Fellow of the American Bar Association, a founding member of the Thurgood Marshall Inn of Court, an adjunct professor at Georgetown University School of Medicine in a joint teaching program on mental health and the law, and chair of the Board of the Art Trust for Superior Court. Judge Kotelly was appointed by Chief Justice Rehnquist to serve as a member of the Judicial Conference Committee on Financial Disclosure from June 2000 through May 2002, and in May 2002 Chief Justice Rehnquist appointed Judge Kotelly to serve as Presiding Judge of the United States Foreign Intelligence Surveillance Court , which is a 7-year appointment.
So, she clerked for a Johnson-appointed judge, served in Nixon’s Justice Department, was appointed to the federal bench by Reagan, received numerous prestigious secondary appointments by Rehnquist, and elevated to the Court of Appeals by Clinton. It’s hard to get more nonpartisan than that! (And, yes, she’s been around a bit: she graduated college the year I was born.)
“Based on the limited record I have before me, I have some concerns about the constitutionality of U.S.D.S.’s structure and operations,” Judge Kollar-Kotelly said at a hearing in Federal District Court in Washington. She expressed particular concern that it violated the appointments clause of the Constitution, which requires leaders of federal agencies to be nominated by the president and confirmed by the Senate. Mr. Musk was neither nominated nor confirmed.
Judge Kollar-Kotelly’s remarks about the Musk operation were part of a civil case brought by two labor unions and a group representing millions of American retirees. They are seeking an injunction that would bar the Musk team from accessing sensitive records maintained by the Treasury Department.
Last week, a federal judge in Manhattan, entertaining a similar legal issue, banned Mr. Musk’s cost-cutting group from regaining access to the Treasury Department’s payment and data systems until the conclusion of a separate lawsuit claiming that its access to the records is unlawful.
The suits are among several challenging Mr. Musk’s wide-ranging efforts to scrutinize government spending and slash the federal work force, which have spawned dueling directives from Mr. Musk and the heads of various federal agencies, as well as termination notices that were quickly rescinded.
Some of the suits have directly questioned the constitutionality of the Musk operation. But Judge Kollar-Kotelly was the first federal judge handling one of the cases to hint at how she might rule on that critical issue.
The judge also indicated that she had serious concerns about how the organization is being run. Her concerns emerged from unresolved questions about who is in charge of the U.S. DOGE Service and what role Mr. Musk plays in its operations.
At the hearing, Judge Kollar-Kotelly repeatedly asked a lawyer for the government, Bradley Humphreys, to identify the service’s administrator. He was unable to answer her.
Judge Kollar-Kotelly also asked Mr. Humphreys what position Mr. Musk holds. Mr. Humphreys responded that Mr. Musk was not the DOGE Service’s administrator, or even an employee of the organization, echoing what a White House official had declared in a separate case challenging the powers of the group.
When the judge pressed him on what Mr. Musk’s job actually was, Mr. Humphreys said, “I don’t have any information beyond he’s a close adviser to the president.”
That exchange seemed to irk Judge Kollar-Kotelly, who signaled her skepticism about the organization’s structure and powers.
“It does seem to me if you have people that are not authorized to carry out some of these functions that they’re carrying out that does raise an issue,” she said. “I would hope that by now we would know who is the administrator, who is the acting administrator and what authority do they have?”
That has been the tradition in previous administrations, yes.
I must say, though, that the Appointments Clause seems to me a thin reed here. Another Presidentially-appointed, Senate-confirmed officer (say, Kash Patel, who only heads two agencies currently) could be named the Acting Director.
More fundamental is whether any official should have such enormous power. DOGE is taking actions that even Presidents have never claimed to have the authority to take, at least not in peacetime.
As far as I can tell, the Musk bandits have violated at least 2 federal laws outright, unless they’re already lying to the court about the nature of the group. By my count, Musk is impersonating a federal agent by sending tweets and threatening employees despite being simply an advisor (what kind of pussy-ass president isn’t big enough to even write down these edicts, but lets his advisor spew whatever he wants?), and his goons have illegally accessed secure information, knowing that they were not entitled to access it. (You could also make an argument that DOGE endangered nuclear stockpiles through a hoax. Always fun to find these buried codes.)
Musk himself is legally liable for claiming to speak for the crown. If we had a functioning Justice Department, any federal employee could register a viable complaint against his abuse of a non-position and his representation to make employment decisions on behalf of the Chief Executive.
And if he does have a government position, the story is even worse, since he’s been claimed not to in court documents, and his actions are riddled with violations of conflict of interest laws. Shit, he hasn’t even taken the requisite oath.
Once again, Trump’s corrupt and dishonest approach to the presidency bulldozes the norms that have kept the government running since the late 18th century. Hopefully there will be more judges who won’t tolerate the now corrupt DOJ’s mendacity in pleadings and the courtroom. Judge Ho holding Emil “There’s no quid pro quo” Bove in contempt would be a good start.
@ptfe: With all the mucking around with access to the federal data systems, what are the odds of penetration by the offensive cyber operations of Russia, China, Iran, North Korea, Israel, France and others? Are our systems now completely compromised?
@Scott: Yes. They are all compromised.
Banking, investment firms, etc. will need to change their security procedures going forward. Reliance on “secrets” is a strategy that works only as long as the secret is kept secret.
In the meantime, you should enable 2-factor authentication anywhere it is offered. Cell phone texts are good, but 2-factor apps from large, reputable companies are better, where supported.
My credit report has been completely locked down with all three agencies for a decade, and I highly recommend that approach as well. Plus I haven’t received a junk, pre-approved credit card offer in the mail in years.
Lastly, watch your County Assessor’s website at least monthly to assure no liens or filings have happened with regard to your home. Fraudulent quit-claims seem possible when the data is so freely available.
@Tony W:
I’ve locked down my credit through all three agencies for years and I still get 2-5 offers a day. I think you are just lucky!
TBH I don’t mind. Every couple of years I obtain a new credit card with a 1- or 2-year period of 0% and use it to finance large projects. I did a 6-figure renovation through three 0% cards. Paid not a dime in interest and walked away with a near-perfect credit score. This is the one and only way so far I have figured out how to make ‘the system’ work for me. Now, every credit card junk envelope is a potential new addition to our house.
@Neil Hudelson:
My wife and I have been the opposite, to the point where it’s amusing. We have one credit card account that we run everything through. The cards are marked “Member since 1987.” It’s a joint account, but their software lists her as the primary and me as the secondary. Now that she’s in memory care, I tried to get that order changed. Customer care was polite (and clearly not working from a menu) but said it couldn’t be done. Over the years I have found that complaining to investor relations often makes things possible, so I sent them a letter (paper). I got a call from a troubleshooter at the corporate office, who explained the details about why it couldn’t be changed. The exception is when my wife dies.
I may get to test that soon. She has become much less responsive in the last few weeks. The doctors all seem to agree that we’re into the weeks/months kind of time before enough of her brain fails that she dies. I won’t be commenting much while I get through that.
@Tony W:
Absolutely. For an unknown amount of time going forward, as well. Long ago, when I used to lecture SVPs about network security, one of the points I always made was that once you let the bad guys put their own hardware/software inside the wall, all security bets were off and likely to remain off. DOGE has been allowed to bring unvetted systems inside the walls.
@Michael Cain: I’m so sorry to hear that.
@Michael Cain:
I’m really sorry to hear that you and your family have some incredibly tough days ahead of you. It always feels that anything that could be said in these moments will ring hollow–the pain and sorrow cannot be diminished by the right words. But, know that you, your wife, and everyone who she’s touched, everyone who will feel a hole in their heart from her passing, are in my thoughts. I hope you both find peace and comfort.
@Michael Cain: I’ll be thinking of you and your wife. It is tough going.
@Michael Cain:
I’m very sorry for this and the difficult times to come.
One thing that I’m happy everyone in the country now, at long last, sees through is the fake both-sidesing that Republicans do.
Joe Biden did not bring in George Soros to fire everyone at the FAA, to end the anti-scam police [the CFPB], to fire every government employee who has been working under 2 years at their job. That didn’t happen. Oh, sure, Faux News is doing their best to lie [as always] but the dogs aren’t eating the dogfood this time.
Joe Biden’s white house didn’t tweet a picture of him wearing a crown calling himself king.
It needs to be pointed out that this [ending social security, ending worker rights, ending civil rights etc] has been the entire Republican agenda since forever. Because of this, Musk&Trump speedrunning the demonstration of why R policies are trash is actually clarifying to non-political people who have refused to believe the objective reality of who Republicans are as people and the policies they actually support.
@Michael Cain: Very sorry to hear that, Michael, we’ll be thinking of you!
@Michael Cain: Even if you’re not commenting here, we’ll be thinking of you, wishing you the best that’s possible under these difficult circumstances.
@Michael Cain: If you need a place to rail or just unload, we’ll be here.
@Michael Cain:
My deepest sympathies. Everyone here is with you in spirit. Check in with us when you feel able to do so.
@Gavin:
Over at FOX right now, SCOOP: FCC to brief lawmakers on George Soros investigation in closed-door meeting. Based on comments, I’d have to say a lot of dogs are still eating the dogfood.
The hilarious thing is they’re after Soros for buying radio stations. In the age of Sinclair and iHeart they’re worried Soros, or his son, is going to take over the radio stations.
@gVOR10: Of course they are worried about Soros taking over radio stations. That’s competition! Republicans are the party of free speech and free enterprise. They can’t stand competition!
My sense is that this issue of DOGE’ authority is going to works its way up the courts. My further sense is that any position that says the Executive does not have the right to appoint agents is thin gruel. Perhaps more powerful might be access to information objections.
I think its unfortunate that the unwarranted hyperbole continues. “Slash” the workforce. As of this writing it still stands at 30,000 or 1.5% It may double.
I took a look at some BOLabor stats. 1.5MM people are laid off each month. 2024 corporate layoffs were quoted at 150K. Tech at 140K. Interestingly, TV, entertainment etc only 15K.
Acting as if every layoff in the government sector is a crime against humanity is to live in a fantasy world, unless all animals are equal, its just that government animals are more equal. That appears to be the stance on this blogsite.
I’d ask. Who speaks for the taxpayer, don’t they count? Who speaks for the looming financial disaster if we don’t change the debt path we are on?
@gVOR10:
You know they have nothing or they wouldn’t be hiding behind closed doors.
Soros is the biggest boogie-man they have. Stephen King couldn’t imagine anything as scary as the right wing has fabricated in Soros.
@Daryl:
Spam. Maybe with a side of phishing.
You know, smarter and more purposeful than our regular Russian troll bots.
@Connor: the government carries out activities that cannot be done by the private sector. If Musk and his cronies get rid of my Constitutionally-mandated agency, who is going to do the work we do? Nowhere outside the government does anyone get the training and experience we have. We are unique and necessary for the continuation of patent and trademark rights. Or are you interested in getting rid of intellectual property in the U.S.?
And if you were really interested in the deficit, you’d be screaming bloody murder about Trump’s proposed extension of the tax cuts, which benefit the top 0.1% and no one else.
@Connor: My sense is that even if the courts were to rule against Trump, he would ignore the orders to cease and the Connors of the nation will say “damn straight, thin greuel; it’s about time one of us* wuz in charge.”
*How a millionaire who was passed over for the failson role in the family for his alcoholic older brother is “one of us” is beyond me, but…
@Connor:
Which explains why these clowns are racing to re-hire their dumbest firings. National Nuclear Security Administration employees whose job it is to oversee the country’s nuclear weapons stockpile. Food and Drug Administration’s medical devices division Employees who oversee x-ray machines and cardiac implants. U.S. Department of Agriculture accidentally fired “several” employees who are working on the federal government’s response to the H5N1 avian flu outbreak.
In addition…Our Natl Parks are notoriously understaffed and have already been understaffed for years. Since 2010, staffing to operate national parks has declined by 20% and during the same time there’s been a 16% increase in visitation.
On the other side of the ledger the Natl Parks contribute billions of dollars to the economy each year, and the economic impact extends beyond the parks themselves. In 2023, visitors spent $26.4 billion in gateway regions surrounding national parks.
In other words, your parroted propaganda is total bullshit.
@Grumpy realist:
He may well be. Hard to say.
There is still a phony job recruiting link on this thread. See Jerry David post.
In the meantime DON’T PUSH THAT BUTTON!
@Michael Cain: Very sad to hear that. My mother and mother-in-law both went through the “long goodbye.”
@Connor:
And by hyperbole, you’re referring to DOGE’s lies, no?
DOGE Quietly Deletes the 5 Biggest Spending Cuts It Celebrated Last Week (New York Times)
Oops. Another day, another example of chaos and incompetence from illegal immigrant Nazi billionare Musk, who the dumbest people in America believe is reducing debt — not by opposing the trillions in tax cuts and welfare received by oligarchs like himself, but with mass layoffs of middle class civil servants.
Imagine deluding yourself into believing you’re the “adult” in the room while defending this reckless scam.
It’s unfortunate there are losers who actually think greedy, lying predators like Trump and Musk care about anything other than their own wealth and power.
@Connor:
Lol you’re full of crap, homie.
You simp for Republican Party prepping right now to blow a $4.5 trillion hole in the deficit by cutting taxes for billionaires like Musk, while also gutting Medicaid.
Acting like you or Republicans care about the debt is to live in a fantasy world.
Acting like Musk — the world’s richest man and biggest welfare queen, recipient of $20+ billion from the government — cares about saving taxpayers money is to live in a fantasy world.
Acting like DOGE’s recklessness, incompetence, mounting errors, and unwarranted layoffs will result in any significant reduction of debt, deficits or spending is to live in a fantasy world.
You are a phony. But you are a Musk-bootlicking Trumper, so that goes without saying. Frauds of a feather, flock together.
@DK:
Not completely though. When Democrats are in the majority, Republicans are all over the topic like bran on brown rice. It’s the main argument they run on.
Or at least it was until keeping “your kind” (racially and otherwise) in “your place” became a topic that “decent” people would broach again.
@DK:
The nazi in chief also has fewer staff to boss around.
Notice all the criticism of those who’ve quit says nothing about their job performance, their skills, or what they did last week. They just tick boxes on their prejudice lists.
@Daryl:
So I take it you disagree.
I do operational turnarounds, and financial restructurings. Its not for the faint of heart.
They can be elegant. They can be brain surgery with a chainsaw. The real issue is: they are unavoidable if the organization is to continue to exist. One can’t hide from reality. You just can’t. Our government has arrived, or nearly arrived, at that point. YMMV, but government has run itself onto a sandbar.
It would appear that you are unsophisticated enough that you must resort to one-off citations of how the turnaround efforts are being conducted (they are generally ugly), and ad hominem attacks on me. Whatever.
We will either change the trajectory of spending, or we will have to debauch the currency.
@DK:
You do realize that the top 10% basically pay half of the income taxes. Right?
There have been years when I paid more than probably 90% of the people on this site will pay in a lifetime. The turnip is running dry. We tried MMT, and we got a brutal 20% price increase; it continues at 3%.
Your huffing and puffing may make you feel better. But serious economic considerations are required right now given the country’s finances. Your observations, IMHO, don’t qualify.
@Grumpy realist:
Of course the government carries out activities that the private sector can’t. And I’ve resigned myself to the fact that I have to pay 3x for them. But that’s not anargument for not rooting out the BS.
You know, Stacey Abrams was given $2B of the (snicker) Inflation Reduction Act funds. Beside filling her pockets, she directed $50MM to the campaign of Harris. Move along; nothing to see here.
@DK:
I agree with you on one point. Tesla is government subsidized. But you guys on the left – and your slavish devotion to green – never raised a peep. Seems to me you are a whore for the issue of the day.
I see the rest of your comment is just infantile ranting about me. Do you have something of substance? I’d be happy to reply.
@DK:
I agree with you on one point. Tesla is government subsidized. I’m no apologist for EV’s. But you guys on the left – and your slavish devotion to green – never raised a peep. Seems to me you are a whore for the issue, or hero, of the day. Then: Musk = hero. Now: Musk = horrible.
I see the rest of your comment is just infantile ranting about me. Do you have something of substance? I’d be happy to reply.
@Connor: Your bloviating about how much money you’ve made is unconvincing when fail at basic addition and subtraction.
Basic math: Republicans firing civil servants and cutting taxes for billionaires while gutting Medicaid is not going to reduce the debt.
Instead, Republicans are trying add at least $4.5 trillion to the deficit. Just like Republicans always do. Unlike Democrats who lower deficits by raising taxes on the rich and growing the economy via investment in the working classes.
So your huffing and puffing about serious considerations may make you feel better. But your inability to count, and your refusal to admit nothing Musk is doing will reduce spending, debt, or deficits — shows you’re an unserious blowhard. And a liar who sucks at math.
There’s nothing serious about Musk emailing judicial branch lifetime appointees with dismissal threats. Nothing serious about recklessly firing nuclear staffers, bird flu experts, scientists, air traffic controllers, park rangers, and veterans. Nothing serious about scrambling to reverse some of these firings, because incompetent Trump officials didn’t do due diligence.
There’s nothing serious the slapdash, hacked DOGE website exaggerating the savings found (that hyperbole you pretend to oppose, because you’re as big a fraud as DOGE itself). Nothing serious about quietly editing those savings lies when the scam leaves its perpetrators legally exposed.
A serious person would condemn Trump, Musk, and this useless chaos. A serious party would be going after the billions in corporate welfare given to oligarchs like Musk, instead of attacking the poor and wasting millions sending Trump to sporting events to stroke his bloated ego. And tens of millions on the DOGE chaos that’s eventually going to cost even more money to fix.
You are not serious, and neither is the Republican Party that embraces socialism for oligarchs but layoffs for the middle class. And that’s why Trump’s polls are fading.
@Connor:
I will. I would start by asking noted financial genius Drew what he proposes as a solution. He probably wouldn’t reply to me so instead I’ll ask you Conner sir what should we do to avoid the looming disaster?
I would think this would be pretty big news if it was true but this is the first I’ve heard of it. Do you have any evidence to support your statement?
@Connor:
But you already just replied to me twice. Because I hit a nerve.
You cannot add and subtract. You simp for billionare oligarchs and corporate socialism. You actually believe Musk cares about reducing spending (lol). You actually think the Trump administration is competent (lol). You are incapable of admitting Musk just spent weeks lying to you about DOGE savings. You pretend to care about debt but support MAGA adding $4.5 trillion dollars to the deficit with tax cuts for billionaires. You are dedicated to the lie that Musk’s reckless mass layoffs and DOGE chaos will reduce the deficits. You are dedicated to the lie that the budget must be balanced on the backs of the poor, while Republicans give billions to oligarchs.
You have no substance. Trump, Musk, and Republicans will increase spending, debt, and deficits — and suffering for those who voted them in.
You’re all full of crap. And that’s why this is happening:
Trump’s Historically Bad First Month of Polls Should Terrify Republicans
@Scott O:
As far as I can tell, Stacy Abrams advises one of five groups that collectively received a 2 billion grant in August 2024. I do believe it was publicized back then.
https://thedispatch.com/article/fact-check-stacey-abrams-billions-taxpayers/
@Connor:
It would infantile if I blustered about deficits while voting to add $4.5 trillion to the debt with tax cuts for billionaires.
It would be infantile if I tantrumed about “DEI hires” while recklessly firing nuclear safety staffers and bird flu experts, then scrambled to reverse my dangerous error, struggling to make contact.
It would be infantile if I claimed to be an efficiency genius and built a DOGE website that leaked classified info and was immediately hacked, then posted there lies about billions in DOGE savings, only to backtrack and admit the suffering I’ve created has saved taxpayers nothing.
It would be infantile if I claimed stripping Medicaid from the poor and firing a civil servant making $65k yearly were necessarily tough decisions, while I happily shovel billions in corporate socialism to Jeff Bezos, Mark Zuckerberg, and Elon Musk — and waste millions attending football games and NASCAR races to feed my narcissistic insecurity.
Of course, I’m not responsible for this claptrap. The authors of this chaos are the greedy, incompetent rightwing oligarchs you’re bent over for. Who, like you, are immature, unserious lying phonies who do not care at all about debt, deficits, spending, or the American people.
I’ve always thought Musk was a complete tool. Do I get a cookie?
@Connor: “We will either change the trajectory of spending, or we will have to debauch the currency.”
But we must never never never never never never never raise taxes on billionaires!
Oh, yes, you’re so convincing when you whine about the terrible debt and refuse to even mention the most plausible and constructive remedy.
You’re a whore for MAGA, and no one here will ever take you seriously until you actually speak honestly on any subject. So, never.
Connor, the mean girls really don’t want you to sit at their table.
@Jen: Me too, snickerdoodles all around!
I take some small credit for pointing out to my then-teen son that Musk didn’t have an engineering degree. That, fortunately, was enough for him to research and then come to his own conclusions about that purported tech wizard. The rapid unscheduled disassemblies helped.