I’d grumbled to Lambert about the lack of discussion among self-styled Trump resisters of litigation to counter some of the obvious lawbreaking initiatives Trump planned, with DOGE, intended to serve as a scorched-earth austerity exercise, at the top of the list. But the truly serious opposition was beavering away quietly. Four groups filed suits hard on the heels of Trump officially taking office. Three have overlapping claims, about how the organization and governance (such as it is) of DOGE violates key provisions of the Federal Advisory Committee Act (“FACA”), which stipulates how bodies consisting of non-government employees must be constituted to act in an advisory capacity.1 Here is are links to the filing with Public Citizen as lead plaintiff, the one led by American Public Health Association, and by and by the National Security Counselors (with Jerald Lentini as lead plaintiff).
The defendants differ across the filings. For Public Citizen, they are Trump and the OMB. For the American Public Health Association, they are the OMB, the Acting Director of the OMB, and DOGE. The National Security Counselors’ pleading targets DOGE, the OMB, the Office of Personnel Management, the Executive Office of the President, Elon Musk, Vivek Ramaswamy, and the directors of the OMB and OPM.
The causes of action and remedies also vary a bit across filings. Curiously, the Public Citizen suit does not call for injunctive relief (ie, making DOGE stop in its tracks) but American Public Health Association does. Only the the American Public Health Association suit does, filing claims under the Administrative Procedures Act and arguing it was entitled to seek a writ of mandamus. The National Security Counselors documents cites “FACA/Mandamus” for four of its causes of action, “FACA/APA” for the fifth and “FACA/DJA” for the sixth. It calls not for injunctive relief but among other things to permanently enjoin DOGE Musk, Ramaswamy, and “all DOGE subunits” from holding meetings or conducting any DOGE business, and permanently enjoining the defendants from relying on any DOGE report or recommendation.
It is over my pay grade, but one has to assume that the defendants will want to consolidate these cases into one, and it is not clear if the differences in the named defendants and claims will prevent that.
The Public Citizen suit has an interesting angle in that Public Citizen and its fellow plaintiffs had organization members apply to be members of DOGE and got no answer.
The fourth suit, from the Center for Biological Diversity, per Politico “…seeks all records from the Office of Management and Budget relating to DOGE. ”
By way of background, from Lambert’s write-up of DOGE’s dodgy game plan from earlier this month:
Of all the strange creatures engendered during the interregnum between Trump’s election and his inauguration, the strangest of all must be DOGE[1] (the Department of Government Efficiency): Nobody (including Grok) seems to know what it is!….
And here is the official announcement, on November 12:
President-elect Donald Trump named tech billionaire Elon Musk and conservative activist Vivek Ramaswamy[3] on Tuesday to head up a new Department of Government Efficiency, fulfilling a campaign pledge to give Musk sweeping oversight of government spending.
Trump said Tuesday that the new department would exist ‘outside of Government,’ giving advice to those in the White House about overhauling federal agencies. The arrangement would also be likely to allow Musk and Ramaswamy to continue working in the private sector and serve without Senate approval.
(A “department” that exists “outside of Government” is a lot like a fish that swims “outside of water.”)…
In this section, I have curated — artisanally, I hasten to add — links to articles in which the press struggles to name what sort of enity DOGE is, from November 12 up to the present.
11/12/2024, WaPo: “a new commission”; 11/12/2024, WaPo: ” a new government spending commission; 11/12/2024, The Hill, “an advisory group”; 11/13/2024, Vox: “presidential advisory commission or task force”; 11/13/2024, MSNBC, “quasi-governmental group”; 11/13/2024, Fortune: “a newly created entity ….not a real department”; 11/13/2024, CBT News: “the department will operate outside of traditional government structures”; 11/14/2024, Independent, “the new office”; 11/14/2024, The Register: “a commission in everything but name”; 11/14/2024, CBS: “not an official government department”; 11/21/2024, Associated Press: “nascent organization”; 11/22/2025, Politico: “an advisory commission outside government”; 11/24/2024, WaPo: “an advisory panel”; 12/5/2025, Roll Call, “unofficial advisory panel”; 12/5/2024, Daily Mail: “agency”; 12/6/2024, Fortune: “advisory board”; 12/6/2024, Gibson Dunn: “an entity”; 12/6/2024, CNN: “advisory board”; 1/6/2025, Forbes: “an advisory commission”; 1/7/2025, Scientific American: “more an advisory group, really”; 1/7/2025, The Hill: “mythological… pure legal fiction”; 1/8/2025, CBS: “group… not an official federal department”; 1/8/2025, FOX: “a blue-ribbon committee”; 1/9/2025, NBC: “budget-cutting effort”; 1/9/2025, Common Dreams: “so-called Department”; 1/9/2025, CNBC: “a new advisory body”; 1/10/2025, Daily Mail: “a private entity”; 1/10/2025, Reuters: “the department”; 1/10/2024, @doge_eth_gov: ” a community run project and is no way associated with any government agency”; and 1/11/2025, Decrypt: “a new U.S. government initiative.”
And the following take DOGE’s nature as entirely unproblematic, and simply use the acronym: 12/24/2024, Daily Mail; 1/3/2024, Responsible Statecraft; 1/7/2025, Cato Institute; 1/10/2025, The New Republic.
However, I would submit that a term with as much slop as shown here cannot be treated as unproblematic: A “group,” for example, commonly refers to an NGO, whichi is not the same as a commission, and a commission is not the same as the much more informal panel.
So, as I said in the introduction: Nobody knows what DOGE is. In consequence, nobody knows what authorities DOGE has, or why.
The ways DOGE fails to comply with FACA, to summarize across the filings, includes:
The lack of a charter, which among other things, must stipulate a time frame for operation and the agency or official to whom the committee reports;
Failure to provide that membership is not “fairly balanced in terms of the points of view represented and the functions to be performed by the advisory committee.” There are many supporting requirements here, such a creating a “member balance plan”;
Failure to comply with prior notice and open meeting requirements;
The use of Signal for communications among members, which violates public records requirements (as in ability to FOIA)
There is plenty of information in the press, as these filings show, to confirm that DOGE intends to and would operate in a law-and-procedure flouting manner.
The normal response to a suit like this would be to back up and comply. But the desire to move fast and break lots of things, and to not have any inconveniences like records or opposing views that have some actual say as part of the process, look to be fatal impediments to what Musk and Trump want DOGE to achieve.
It is hard to see how this filing could be knocked out quickly or easily by preliminary motions. If nothing else, the Public Citizen filing should survive a challenge to standing by its plaintiffs being blocked in its pursuit of their missions by being ignored by DOGE. Similarly, the Biological Diversity against the OMB for all records related to its interactions with DOGE critters looks like a straight up FOIA case and should proceed.
Discovery should be highly embarrassing to DOGE, as in great fun.
The problem for Team DOGE is even if its members choose to defy a court ruling against them, a win by the plaintiff would put a deep freeze on cooperation from civil servants, even before them being highly motivated not to cooperate if given adequate legal cover in possible employment suicide and institution whackage. So these actions do have the potential to succeed, not just legally but also practically.
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1 I would have embedded the filing from Public Citizen. Aside from being the first filed, we have a soft spot for Public Citizen, since they did a phenomenal job on beating back the Trans-Pacific partnership and this site was an occasional running buddy in those efforts. However, there’s been a bad tendency in recent years for massively bloated file sizes for even simple and not long pdfs, to the degree that we can’t even shrink them enough to embed them.
Instead of DOGE, Trump should just make DOD pass an audit and account for their spending.
It’s a mystery to me why so few, including alternative media and progressive commentators refuse to demand this.
They’ve been trying for nearly two decades. This clip is from 2006. It goes beyond the budget issue but it worth watching in its entirety for the pleasure of seeing Rumsfeld squirm:
One of our readers was employed as a contractor on the effort. It’s an Augean stable level mess. It’s not fixable. You fight fights you can win. If the records are impossibly bad over long periods of time, there’s no solution.
The problem isn’t so much that the records are this bad for decades.
The problem is that it is intentional (how else can you create slush/of the record funds) and that the people in charge of this know that the correct remedy to their deliberate fouling of the records, that is stop the money flow, will never happen since that would be one of the few things that would get most US citizens to support a coup against whatever congress/senate/president combo was stupid enough to stop funding the military.
‘the press struggles to name what sort of entity DOGE is’
Isn’t that the whole point? To have an opaque organization with muddled lines of authority, with not being able to see who is making critical decisions or how such decisions are being made? Will there ever be a table of organization produced or will it remain an ad hoc organization. I would not be surprised to see them taking a leaf out of a 1940s organization and insisting that critical decisions that are made are never committed to paper or file but remain on a verbal level so that years down the track if they are asked about events here, can claim the fifth.
How low we’ve sunk as a nation when defying court orders becomes normalized.
Contempt of court is a thing, even in civil suits.
And if you’re a white Trump supporter you can fight with cops and get a pardon. What a country!
Some people just want to see the world burn.
A lot of these types were bullied when younger. They have money and can’t see past their own pain.
That sounds like something a bully would say.
Lambert, consolidation or severability of cases (as opposed to, say, jurisdiction, venue or justicability) are more often decided by the nature and content of the claims and material facts alleged than by the parties/defendants involved. [IIRC]
e.g. common question under FRCP 42; various under CRC 3.5000.
Thanks but this is my post, not Lambert’s.
Stupid question but I can’t find anything that clearly states that Musk or the others are getting paid to do this.
All Musk really has to do is to be Trump’s friend and personal adviser and every door not requiring security clearance will be opened for him, government executives will expedite his information requests. No federal employee in their right mind is going to put up roadblocks when the President’s personal adviser and/or his adviser’s personal staff come knocking.
Whatever DOGE legally is, if the framework is dodgy Trump can simply fall back on using Musk as a personal adviser/troubleshooter with Musk’s staff a gray area so long as Musk pays them and not the government.
I think Trump likes to telegraph his moves so that his critic can tip him off as to where his plans are weakest. I don’t think they’re done figuring out how DOGE will work yet and maybe it never will work but no matter what happens Elon Musk will have access so long as Trump likes him and there’s nothing anyone can do about that.
I would say it’s all pro bono publico. Altruism and philanthropy, on the way towards trillionaire-ity.