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.
