After this day, the more than a few blue state that sued Elon Musk and DOGE will lobby for an order against the Trump Administration. If granted, the temporary restraining order, or TRO, did quickly halt the leader and the federal agencies ‘ ongoing efforts to cut waste, scams, and the integrated members of the administrative resistance. And unlike the various TROs entered into force in other cases that were merely paper nuisances, a TRO freezing out Musk and DOGE would be devastating both to our constitutional structure and the president’s agenda.
On Thursday, fourteen states filed a lawsuit against Elon Musk, DOGE ( the Department of Government Efficiency ), and President Donald Trump in a federal district court in Washington, D. C. The lawsuit, New Mexico v. Musk, alleged Musk,” an unelected, unconfirmed government official, is exercising unprecedented executive authority in violation the Appointments Clause of the Constitution”.
Soon after, the Plaintiff States filed for an urgent TRO, requesting the court to immediately enjoin Musk, DOGE, from accessing any information from the various federal agencies, freezing or canceling any federal grants or contracts, or attempting to fire or put employees on administrative leave.
Federal Judge Tanya S. Chutkan held a hearing on the states ‘ request for a TRO on Friday. Following the hearing, Chutkan, the Barack Obama appointee, issued an order directing the states to redraft and narrow their proposed TRO by 5:30 p.m. on Saturday, suggesting that the judge intended to quickly enjoin the Trump Administration. He refused to do so following the Supreme Court’s decision regarding presidential immunity.
The Trump Administration also had this sentiment when it responded to the states ‘ proposed TRO within hours, asking the court to hold a hearing on Monday morning to “give Defendants sufficient time to submit a fuller response” if “is inclined to grant the States ‘ request”. On Sunday, apparently acquiescing to the brief delay, Judge Chutkan entered an order setting an 11: 00 a. m. hearing on the case.
While the Trump Administration’s weekend response was, by necessity, abbreviated, it nonetheless concisely established why no injunction — much less the overbroad and legally unsupported version sought by the blue states — should be granted.
Indeed, the TRO the Plaintiff States proffered to the Court on Saturday would ban Musk, DOGE,” and their agents, officers, and employees, or anyone acting in active concert with them”, from accessing data systems and information at a variety of federal agencies, including the Office of Personnel Management and the Departments of Education, Labor, Health and Human Services, Energy, Transportation, and Commerce. The proposed TRO would further prohibit Musk, DOGE,” and their agents, officers, and employees, or anyone acting in active concert with them”, from firing, furloughing, or otherwise placing on leave any employees working for those same agencies.
The language is so “exceedingly broad” that, as it is written, it would even prohibit the President and Senate-confirmed officials from obtaining data or firing federal employees if they collaborate with Musk or DOGE in the decision-making process, as the Trump Administration put it in its Saturday night response. More fundamentally, the Trump Administration’s response continued, the proposed injunction was completely disconnected to the Plaintiffs ‘ legal theories.
The Trump Administration’s weekend filing already hammered the two fatal flaws underlying the states ‘ request for injunctive relief: The Plaintiff States have failed to establish a likelihood of success on their underlying legal claims or an imminent injury brought on by the Defendants ‘ allegedly illegal conduct, while the Court will undoubtedly benefit from a more comprehensive response from the government before it rules on the TRO.
The Trump Administration concentrated on the legal claims that the Plaintiff States made in their complaint. The states allege two distinct charges, one of which was based on an alleged violation of the Constitution’s Appointments Clause, and the other of which claimed DOGE acted outside its statutory authority.
” Both claims — the constitutional one, and its statutory counterpart”, the Defendants stressed, are premised on Musk and DOGE having the “authority to make decisions for the U. S. government”.
” That premise is of course wrong”, the Trump Administration countered, explaining that the theory “rests entirely on conflating influence and authority”.
Said otherwise, Musk and DOGE lack any independent “authority” to carry out the actions the Plaintiff States demand, such as halting or terminating federal employees, while they have influence on both the president and the various agencies and their Senate-confirmed heads. In fact, the Trump Administration claimed in its Saturday filing that” the States do not actually cite a single instance where Elon Musk ( or anyone at]DOGE ] has been given formal authority to exercise the sovereign power of the United States. The only tangible action even affecting the States is a single paused grant from USAID, according to the government, but according to the records, “nowhere is there any governmental action taken in the name of [DOGE].”
Trump has made it clear that his administration is reviewing and approuving any suggestions made by Musk and DOGE, and only when the president accepts the recommendations, despite the Plaintiff States highlighting Musk’s public statements and posts on X that claim that he or DOGE have ended programs or funding. That is fatal to the motion for a TRO because without a grant of “authority,” there is no violation of law, coupled with the Plaintiff States ‘ inability to present any specific instance where Musk or DOGE acted with independent authority regarding the decisions they complain.
To elaborate: The States allege Trump violated the Appointments Clause, which governs the President’s appointment of” Officers of the United States”, but that constitutional provision applies only to “officers” and not “employees”. And as the Supreme Court has made clear, to be an “officer”, an individual must ( 1 ) “occupy a’ continuing’ position” that is part of the federal government for constitutional purposes and ( 2 ) “exercis]e ] significant authority pursuant to the laws of the United States”.
Even if Musk and DOGE members can be said to “occupy a’continuing’ position” — something that is debatable — their lack of authority to implement their recommendations makes them “employees” rather than “officers” in the eyes of the Appointments Clause. Accordingly, the states are unable to demonstrate a likelihood of success in their Appointments Clause claim.
Similar to this claim, the Plaintiffs are unlikely to succeed on their second count, which is premised on Musk and DOGE employees acting contrary to the authority that was granted to the agency because that claim also assumes that they have the authority to make decisions for the president or the agencies rather than to provide advice.
Further, the states would still need to demonstrate that their authority caused them any actual or imminent harm, even if the Court were to assume Musk and DOGE had any authority to revoke grants or fire employees. However, the states have to date failed to identify any specific injuries that might have been caused by Musk or DOGE’s alleged exercise of unconstitutional authority in contrast to those that might have been brought on by Trump or the various agency heads. For this added reason, the Court should deny the TRO.
It remains to be seen whether the Court will do so. However, there is also a third option besides granting or denying the requested TRO, which seems likely given what we have seen other district courts do in response to legal challenges to the Trump Administration: a toothless TRO.
We saw that last week when two distinct district courts issued TROs that forbade the Trump Administration from freezing or robbing grants, unless otherwise permitted by law, regulation, or grant conditions. The exception made for in the TRO, as I detailed at the time, was sucked into the rule because federal contracts and grants consistently state that the government has the right to revoke the funding. In other words, the headlines from last week give the impression that the courts were preventing the Trump Administration from cutting funding, but in reality, the terms of the TROs had little to do with how the executive branch operated.
It appears likely that Judge Chutkan is inclined to grant an injunction given that on Friday Judge Chutkan had instructed the Plaintiff States to submit a narrower TRO. However, she will have to struggle to ignore the blatant shortcomings in the blue states case because of the government’s briefing and further argument later this morning. Under these circumstances, she might conclude that the best course of action is to file a TRO that only prohibits Musk and DOGE from terminating employees or from cutting any funding.
There would be no real harm to the Trump Administration, despite the fact that a TRO would still be improper because there is no proof that Musk and DOGE are imminently able to exercise such authority. In contrast, granting the TRO as requested by the Plaintiff States would abruptly end the administration’s work and would significantly erode the president’s Article II authority, making an appellate court hesitant to grant such an order, even for a short time.  ,
Judge Chutkan may be able to infer that from her decision later this morning when she hears further arguments regarding Plaintiff States ‘ motion for a TRO.
Margot Cleveland is an investigative journalist and legal analyst and serves as The Federalist’s senior legal correspondent. Margot’s work has been published at The Wall Street Journal, The American Spectator, the New Criterion, National Review Online, Townhall.com, the Daily Signal, USA Today, and the Detroit Free Press. She is also a regular guest on nationally syndicated radio programs and on Fox News, Fox Business, and Newsmax. Cleveland is a lawyer and a graduate of the Notre Dame Law School, where she earned the Hoynes Prize—the law school’s highest honor. She later served on the Seventh Circuit Court of Appeals as a permanent law clerk for a federal appellate judge for nearly 25 years. Former full-time university professor, Cleveland teaches adjunct occasionally. The New Civil Liberties Alliance also has Cleveland as its attorney. You can follow Cleveland on Twitter at @ProfMJCleveland to learn more about her most cherished accomplishments, including her husband and son. Cleveland’s opinions are those of her personal life in this article.
