By Noah Feldman / Bloomberg Opinion
Elon Musk’s Department of Government Efficiency is sowing confusion and chaos, ordering mass firings of government employees and canceling programs despite having no formal legal authority. In a recent decision, Federal District Court Judge Tanya Chutkan noted that Musk’s actions likely violate the Constitution because he has not been appointed by the president nor confirmed by the Senate. Yet the judge rejected a lawsuit to stop DOGE brought by 14 state attorneys general because she held they lacked standing since they had not identified the specific harms their states suffered.
The AGs’ lawsuit, which was filed when Musk was just getting started, can be brought again with more facts to support it. There will also be other lawsuits by individuals who have already lost their jobs and clearly have standing to challenge DOGE’s legality. Some of these lawsuits will likely prevail, and some district court judge, possibly Chutkan, will likely order DOGE to pause its operations in the coming weeks. The Trump administration will appeal, but the irregularity of DOGE is so obvious, legally speaking, that the U.S. Court of Appeals for the D.C. Circuit will almost certainly affirm the lower court. The Supreme Court is likely to let lower court decisions stand, finding DOGE’s actions unlawful.
But the high probability that the courts will halt DOGE’s operations will be only one episode in an arc with a series’ worth of material. Further litigation would be necessary to unwind what DOGE will already have done. That will take time.
Meanwhile, the Trump administration will be able to keep many fired employees out of their jobs. All the president has to do is have duly appointed officials fire them again. The employees may be owed a little back pay for the time between their unlawful DOGE firing and their lawful firing by legitimate administration officials. Still, they won’t be reinstated unless they were career employees whom no one in the administration may fire without good cause.
The legal outcome for the program cancellations DOGE has ordered will likely be similar. Even if the DOGE orders are held unlawful, appointed administration officials can ultimately cancel those programs unless they involve specific congressional appropriations made without room for executive branch discretion.
A roadmap for re-canceling DOGE-eliminated programs already exists. Administration officials have reportedly been re-canceling or re-pausing programs unlawfully paused by Trump’s early executive order freezing most government spending. The courts blocked that initial order, so the administration is trying to achieve the same results by other means. Some courts have attempted to block this strategy, but their actions depend on a technical reading of the court order blocking the initial executive order. Eventually, the administration will find a way to cancel programs that aren’t based on specific congressional appropriations.
The upshot is that many DOGE actions will have lasting consequences, regardless of their illegality when they were first taken. Companies regulated by agencies whose employee ranks have been thinned can expect regulatory enforcement to decrease in proportion to the loss of staff. The same applies to industries that need government approvals to do business: If there are fewer staffers to approve applications, the process will slow accordingly.
Sectors like life sciences or pharmaceuticals that rely on government-funded research will also feel the effects of DOGE and other ongoing cuts. Those cuts can be regularized; effectively, they will likely remain in effect whenever they don’t contradict specific congressional appropriations.
To be sure, specific sectors that require government funds can lobby the Trump administration to reverse or choose not to reaffirm the DOGE cuts. Based on the evidence that lobbying the Trump administration successfully is possible, some of those efforts will doubtless succeed. Those sectors can also lobby Congress to resist DOGE-initiated cuts with specific appropriations bills, although Trump would have to sign those.
What’s more, the obvious lack of strategic planning in the haphazard firings and cuts means that sometimes, the Trump administration will eventually realize that what has been cut was necessary. So, some reversals will be required, even from the administration’s perspective. Once DOGE’s activities are limited by court order, DOGE and Musk won’t be as interested in fighting selective reversals of their actions.
Musk will have good reason to stop actively engaging in DOGE work once the courts catch up and bar its ongoing actions. He will have achieved meaningful influence in government direction without going through the legal formalities of appointment and confirmation. Courts are likely to rule that he must, at a minimum, obey conflict of interest and disclosure rules that he would have no interest in following. His influence on Trump has already demonstrated that he will be able to continue lobbying the president from outside the White House.
What’s more, by receding from day-to-day DOGE action once ordered by a court, Musk may be able to avoid what otherwise looks like unavoidable conflict with Trump. Each man seems to believe he has the upper hand. Both can’t be right. Neither has anything to gain by confrontation with the other.
Musk’s initial DOGE announcement said he planned to leave the job by July 2026. It’s doubtful he will last until then. But the effects of the DOGE experiment will be felt well beyond. They will underscore the limits of the constitutional system in responding quickly to unlawful cuts made by a president happy to act outside the law.
Noah Feldman is a Bloomberg Opinion columnist.
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