Some of Musk's DOGE damage can't be undone
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.
https://www.heraldnet.com/opinion/comment-some-of-musks-doge-damage-cant-be-undone/
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