State of New Mexico v. Musk

• Court: District Court, District of Columbia
• Decided: May 27, 2025
• Docket: Civil Action No. 2025-0429
• Status: Published

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

STATE OF NEW MEXICO, et al.

Plaintiffs,

v. Civil Action No. 25-cv-429 (TSC)

ELON MUSK, et al.

Defendants.

JAPANESE AMERICAN CITIZENS LEAGUE, et al.

v. Civil Action No. 25-cv-643 (TSC)

MEMORANDUM OPINION

The Constitution divides and balances power across the three branches—the Executive,

Legislature, and Judiciary—as a vital check against tyranny and to promote effective

governance. The Appointments Clause embodies this foundational compromise. The

Constitution grants Congress the power to create federal offices and agencies. The President

shall then appoint individuals to fill such offices, subject to Senate confirmation. And the

Judiciary may decide whether the Legislature and Executive acted in accordance with their

constitutional prerogatives.

The Constitution does not permit the Executive to commandeer the entire appointments

power by unilaterally creating a federal agency pursuant to Executive Order and insulating its

Page 1 of 42 principal officer from the Constitution as an “advisor” in name only. This is precisely what

Plaintiffs claim the Executive has done.

President Trump created the U.S. Department of Government Efficiency Service

(“DOGE”) and U.S. DOGE Service Temporary Organization by Executive Order on January 20,

2025. Exec. Order No. 14,158, 90 Fed. Reg. 8441 (Jan. 20, 2025) (“DOGE EO” or “DOGE

Executive Order”). Since then, several federal agencies have been dismantled, thousands of

federal employees have been terminated or placed on leave, sensitive data has been haphazardly

accessed, edited, and disclosed, and federal grants and contracts have been frozen or terminated.

Plaintiffs allege that DOGE and its leader, Elon Musk, are behind these actions.

Fourteen states, represented by their Attorneys General, sued Musk, DOGE, U.S. DOGE

Service Temporary Organization, and President Trump, alleging violations of the Appointments

Clause of the U.S. Constitution, U.S. Const., Art. II, § 2, cl. 2, and conduct in excess of statutory

authority. Compl. ¶¶ 253–72, ECF No. 2. Defendants move to dismiss for lack of subject matter

jurisdiction under Federal Rule of Civil Procedure 12(b)(1) and failure to state a claim under

Federal Rule of Civil Procedure 12(b)(6). Defs.’ Mem. of L. in Supp. of Mot. to Dismiss at 6,

ECF No. 58 (“MTD”). For the following reasons, the court will DENY Defendants’ motion as

to Musk, DOGE, and DOGE Service Temporary Organization, and GRANT Defendants’ motion

as to President Trump.

I. BACKGROUND

Defendants currently face lawsuits across the country. 1 Several decisions in those actions

are legally or factually related to this action. See, e.g., Am. Fed’n of Gov’t Emps., AFL-CIO v.

1 See, e.g., AFL-CIO v. Soc. Sec. Admin., --- F. Supp. 3d ----, 2025 WL 868953 (D. Md. Mar. 20, 2025); Citizens for Resp. & Ethics in Wash. v. U.S. DOGE Serv., No. 25-cv-511 (CRC), 2025 WL 863947 (D.D.C. Mar. 19, 2025); Does 1–26 v. Musk, --- F. Supp. 3d ----, 2025 WL 840574

Page 2 of 42 Trump, --- F. Supp. 3d ----, 2025 WL 1358477, at *23 (N.D. Cal. May 9, 2025) (granting

temporary restraining order preventing “orders by DOGE to agencies to cut programs or staff”

based on ultra vires challenge).

A. Establishment of U.S. Department of Government Efficiency

Shortly after his inauguration, President Trump renamed the U.S. Digital Service, Compl.

¶¶ 54–55, 2 an office situated within the Office of Management and Budget (“OMB”), as the U.S.

Department of Government Efficiency. 3 Within DOGE, President Trump created a subsidiary

organization—the DOGE Service Temporary Organization—“dedicated to advancing the

President’s 18-month DOGE agenda” and scheduled to terminate on July 4, 2026. See DOGE

EO § 3(b). The DOGE Service Temporary Organization is headed by the DOGE Administrator,

who reports to the White House Chief of Staff. Id. President Trump created the DOGE Service

Temporary Organization pursuant to the temporary organization statute, 5 U.S.C. § 3161, which

defines a “temporary organization” as a “commission, committee, board, or other organization

. . . established by law or Executive order for a specific period not in excess of three years for the

(D. Md. Mar. 18, 2025); New York v. Trump, --- F. Supp. 3d ---, 2025 WL 573771 (S.D.N.Y. Feb. 21, 2025); Alliance for Retired Ams. v. Bessent, --- F. Supp. 3d ----, 2025 WL 740401 (D.D.C. Mar. 7, 2025); AFL-CIO v. Dep’t of Lab., --- F. Supp. 3d ----, 2025 WL 542825 (D.D.C. Feb. 14, 2025). 2 States’ Complaint provides sources for certain allegations in footnotes, including citations to Executive Orders, publicly available news reports, social media posts, and federal agencies’ websites. The court omits the States’ sources when citing to the Complaint. 3 President Obama created the U.S. Digital Service within OMB in 2014 “to apply technology in smarter, more effective ways that improve the delivery of federal services, information, and benefits.” Beth Corbert, Steve Vankroekel, & Todd Park, Delivering a Customer-Focused Government Through Smarter IT, The White House: President Barack Obama (Aug. 11, 2014), https://perma.cc/R2RX-GKYQ. Congress previously appropriated funds for U.S. Digital Service through the Information Technology Oversight Reform Account, which is controlled by the OMB Director, and in the American Rescue Plan Act of 2021, Pub. L. No. 117-2, § 4010 (2021). See, e.g., Budget of the U.S. Gov’t App’x at 1142–43, Off. of Mgmt. & Budget (Mar. 28, 2022), https://perma.cc/EPV7-AUZD.

Page 3 of 42 purpose of performing a specific study or other project” that terminates “upon the completion of

the study or project.” 5 U.S.C. § 3161(a); see DOGE EO § 3(b). President Trump did not

identify any statutory authority for the umbrella DOGE organization. See DOGE EO § 3(a).

President Trump instructed the DOGE Administrator to “commence a Software

Modernization Initiative to improve the quality and efficiency of government-wide software,

network infrastructure, and information technology (IT) systems.” Id. § 4(a). To achieve that

goal, President Trump ordered the highest-ranking official at each federal agency to “take all

necessary steps . . . to ensure [DOGE] has full and prompt access to all unclassified agency

records, software systems, and IT systems” and displaced all prior executive orders and

regulations that “might serve as a barrier to providing [DOGE] access to agency records and

systems.” Id. § 4(b), (c). He also ordered the establishment of “DOGE Team members” within

each agency “in consultation with the [DOGE] Administrator.” Id. § 3(c). The DOGE

Executive Order identified no statutory authority for these actions. See DOGE EO §§ 3–4.

From January 20 to February 26, President Trump signed five additional Executive

Orders expanding DOGE’s role and authority. See Reforming the Federal Hiring Process and

Restoring Merit to Government Service, Exec. Order No. 14,170, 90 Fed. Reg. 8621 (Jan. 20,

2025); Implementing the President’s “Department of Government Efficiency” Workforce

Optimization Initiative, Exec. Order No. 14,210, 90 Fed. Reg. 9669 (Feb. 11, 2025); Ending

Taxpayer Subsidization of Open Borders, Exec. Order No. 14,218, 90 Fed. Reg. 10581 (Feb. 19,

2025); Ensuring Lawful Governance and Implementing the President’s “Department of

Government Efficiency” Deregulatory Initiative, Exec. Order No. 14,219, 90 Fed. Reg. 10583

(Feb. 19, 2025); Implementing the President’s “Department of Government Efficiency” Cost

Efficiency Initiative, Exec. Order No. 14,222, 90 Fed. Reg. 11095 (Feb. 26, 2025).

Page 4 of 42 Those Executive Orders authorized DOGE to provide “advice and recommendations” on

the implementation of a federal hiring plan, Exec. Order No. 14,170 § 2(d); ordered agency

heads to consult DOGE regarding hiring decisions and prohibited agencies from filling vacancies

that the “DOGE Team Lead assesses should not be filled, unless the Agency Head determines

the positions should be filled,” Exec. Order No. 14,210 § 3(b); instructed the OMB Director and

the DOGE Administrator to “identify all other sources of Federal funding for illegal aliens,” and

recommend actions to “prohibit[] illegal aliens from obtaining most taxpayer-funded benefits,”

Exec. Order No. 14,218 §§ 1, 2(b); instructed agency heads to coordinate with “DOGE Team

Leads” and the OMB Director on a “process to review all regulations . . . for consistency with

law and Administration policy” and to “consult with their DOGE Team Leads . . . on potential

new regulations,” Exec. Order No. 14,219 §§ 2, 4; and required agencies to work with DOGE to

track, review, and, where appropriate, terminate discretionary spending through “Federal

contracts, grants, loans, and related instruments,” Exec. Order 14,222 §§ 2(d), 3(b).

B. Elon Musk’s Role

Elon Musk’s role, authority, and conduct within the federal government is a central issue

in this case. Defendants formally classify Musk as a “special Government employee.” Compl.

¶ 25 (citing 18 U.S.C. § 202(a)); see also Decl. of Joshua Fisher ¶¶ 3–4, ECF No. 24-1. Plaintiff

States allege that Musk leads DOGE and directs the actions of DOGE personnel. Compl. ¶¶ 51,

59. Specifically, they claim that the “statements and actions of President Trump, other White

House officials, and Mr. Musk himself indicate that Mr. Musk has been directing the work of

DOGE personnel since at least January 21, 2025.” Id. They allege that, in this role, Musk

“exercise[es] virtually unchecked power across the entire Executive Branch, making decisions

about expenditures, contracts, government property, regulations, and the very existence of

federal agencies.” Id. ¶ 67. Page 5 of 42 To substantiate that allegation, States point to public statements by President Trump,

Musk, and other White House personnel. For instance, on February 1, Musk called U.S. Agency

for International Development (“USAID”) officials and “pressured” them to provide DOGE

personnel access to the USAID building. Compl. ¶ 94. He “threatened to call federal marshals”

when USAID personnel attempted to block secure areas of the building. Id. ¶ 95. The following

day, Musk posted on X that “We spent the weekend feeding USAID into the woodchipper.” Id.

¶ 98. Musk stated that he personally discussed shutting down USAID with President Trump—“I

actually checked with [President Trump] a few times [and] said ‘are you sure?’ The answer was

yes. And so we’re shutting it down.” Id. ¶ 100. On February 2, Musk responded to a post on X

that the “DOGE team” was “rapidly shutting down [] illegal payments” to Lutheran Family

Services. Id. ¶ 86. On February 3, White House Press Secretary Karoline Leavitt represented

that “President Trump tasked Mr. Musk with starting up DOGE, and he already has done that

. . .” Id. ¶ 60. On February 4, Department of Labor (“DOL”) leadership allegedly told

employees that when Musk and his team arrive “do whatever they ask,” and instructed them “not

to push back,” “worry about any security protocols,” or “ask questions.” Id. ¶ 178. On February

7, “Musk’s aides” entered the Consumer Financial Protection Bureau (“CFPB”) headquarters and

began reviewing “sensitive personnel and financial records.” Id. ¶ 146. That afternoon, Musk

posted on X “CFBP RIP.” Id. On February 8, 2025, President Trump told reporters that he

“instructed [Musk] to go check out Education, to check out the Pentagon,” and to go through

“‘just about everything’ at the Defense Department.” Id. ¶¶ 72, 151. And, on February 11,

Musk and President Trump “jointly addressed the public from the White House Oval Office.”

Id. ¶ 75.

Page 6 of 42 States also rely on parallels between Musk’s past business practices and recent events

within the Executive Branch as indications of Musk’s involvement. Specifically, they allege that

Musk “exerted direct control” over a January 28 email sent by the Office of Personnel

Management (“OPM”) to more than 2.3 million federal employees and contractors regarding a

“deferred resignation program” (hereinafter, the “Fork in the Road Email”). Id. ¶¶ 116–20. The

email offered federal employees “pay and benefits through September 2025 if they resigned by

February 6th.” Id. ¶ 117. States allege Musk sent an “identically titled” email with a similar

offer to company employees upon his acquisition of X, then known as Twitter. Id. ¶ 118.

C. DOGE and Musk Activities

States claim that DOGE, with Musk at the helm, “has inserted itself into at least 17

federal agencies” and exercises “significant authority” across the Executive Branch. Id. ¶¶ 70,

200. They identify the following categories of allegedly unauthorized actions by DOGE and

Musk:

• Controlling Expenditures and Disbursements of Public Funds: States allege that DOGE obtained “full access” to payment systems at multiple agencies and used that access to halt payments. Id. ¶¶ 78–79, 85, 127–30. For instance, after the acting-Secretary at U.S. Department of Treasury refused to “halt” payments, DOGE personnel threatened the acting Secretary with “legal risk [] if he did not comply with DOGE.” Id. ¶ 84. Then, on February 2, DOGE obtained “full access” to Treasury’s Bureau of the Fiscal Services payment systems, which disburses funds for social security benefits, veteran’s benefits, childcare tax credits, Medicaid and Medicare reimbursements, federal employee wages, federal tax refunds, and facilitates state recovery of delinquent state income taxes. Id. ¶¶ 78–79, 85. That day, Musk posted on X that “[t]he @DOGE team is rapidly shutting down these illegal payments,” in response to a post by a non-profit organization receiving funds pursuant to government contracts. Id. ¶ 86.

• Terminating Federal Contracts and Exercising Control over Federal Property: States allege that Musk and DOGE asserted responsibility for terminating federal contracts across the Executive Branch. Id. ¶ 203–04. DOGE reported the cancellation of “104 contracts related to diversity, equity, inclusion and accessibility (DEIA) at more than a dozen federal agencies” on January 31, id. ¶ 205; of “thirty-six contracts across six agencies” on February 3, id. ¶ 206; of “twelve contracts in the GSA and the Department of Education” on February 4, Page 7 of 42 id. ¶ 207; and “cuts of $250 million through the termination of 199 contracts” on February 7, id. ¶ 208. States also allege that DOGE and Musk exercise control over federal property by demanding access to secure facilities and threatening intervention by U.S. Marshals when agency officials refuse, id. ¶¶ 94–95; by “push[ing]” high-ranking officials out of their offices at agency headquarters, id. ¶¶ 164–66, by terminating leases for federal property, id. ¶ 206, and by announcing plans to “liquidate as much as half of the federal government’s nonmilitary real estate holdings,” id. ¶ 160.

• Binding the Government to Future Financial Commitments without Congressional Authorization: States point to the Fork in the Road Email, which offered federal employees pay and benefits through September 2025 if they resigned by February 6, as entering into binding financial commitments. Id. ¶¶ 116–20, 212.

• Eliminating Agency Regulations and Entire Agencies and Departments: States allege that DOGE personnel took steps to dismantle USAID and CFPB. On February 3, DOGE personnel allegedly “handed” USAID’s acting leadership “a list of 58 people, almost all senior career officials, to put on administrative leave.” Id. ¶ 102. The next day, USAID placed “nearly its entire workforce on administrative leave.” Id. ¶ 103. When “USAID contract officers emailed agency higher-ups” for authorization to cancel programs, DOGE personnel responded directly. Id. ¶ 101. Musk posted on X “CFBP RIP” on the same day that Musk’s aides “set up shop . . . at CFPB’s headquarters” and CFPB’s website was taken down. Id. ¶¶ 146–47. Three days later, CFPB’s acting Director Russell Vought told all employees to “[s]tand down from performing any work task” and “not come into the office.” Id. ¶ 148.

• Directing Action by Agencies: States allege that Musk and DOGE obtain compliance from agency officials and employees by threatening action by U.S. Marshals, legal risks, or termination. Id. ¶ 84 (threatening acting-Treasury Secretary with “legal risk”); id. ¶ 95 (threatening USAID personnel blocking access to facility with action by U.S. Marshals); id. ¶¶ 176–178 (DOL employees told to comply or “face termination”). States claim that if agency officials object or raise concerns, Musk and DOGE ignore or override the agency and place on administrative leave or otherwise remove non-compliant individuals. Id. ¶¶ 84– 85 (acting-Treasury Secretary “placed on administrative leave” after refusing to halt payments); id. ¶ 110 (DOGE “gained full and unfettered access to OPM systems over the existing CIO’s objection”); id. ¶¶ 137–38 (DOGE representative was “installed” as the Department of Energy’s (“DOE”) “chief information officer” after DOE’s general counsel’s office and chief information office opposed DOGE’s access to DOE’s IT system); id. ¶ 166 (DOGE personnel “pushed” the “highest-ranking officials” at the Department of Education (“ED”) “out of their own offices”).

• Acting as a Principal Officer Unsupervised by Heads of Departments: States allege that Musk acts and directs DOGE’s conduct without supervision by agency

Page 8 of 42 heads. For instance, States allege that Musk and his team sent the Fork in the Road Email “via a custom-built email system . . . without consultation with other advisers to the President or OMB officials,” id. ¶ 120; that DOGE personnel at agencies do not “interact at all with anyone who is not part of their team,” id. ¶ 165; and that Musk “reports only to President Trump,” id. ¶ 71.

• Obtaining Unauthorized Access to Secure Databases and Sensitive Information: States allege that Musk and DOGE personnel obtained access to secure databases and systems at Treasury, id. ¶ 85, USAID, id. ¶ 95, OPM, id. ¶ 110, the Department of Health and Human Services, id. ¶ 127, DOE, id. ¶ 137, ED, id. ¶¶ 164, 167, DOL, id. ¶¶ 177–78, National Oceanic and Atmospheric Administration, id. ¶ 190, Federal Emergency Management Agency, id. ¶ 194, and Small Business Association, id. ¶ 198.

D. Procedural History

States brought this action for declaratory and injunctive relief on February 13, 2025.

ECF No. 1. They immediately moved for a TRO, seeking to enjoin Musk and DOGE from (1)

accessing, copying, or transferring any data systems, and (2) terminating or otherwise placing on

leave any officers or employees at certain federal agencies. New Mexico v. Musk, No. 25-cv-429

(TSC), 2025 WL 520583, at *2 (D.D.C. Feb. 18, 2025). The court denied that motion because

States failed to provide clear evidence of imminent, irreparable harm, and ordered the parties to

propose a schedule for further proceedings. Id. at *4. States declared their intention to seek

expedited discovery to support a forthcoming preliminary injunction motion, while Defendants

planned to move to dismiss. Proposed Briefing Schedule at 1–2, ECF No. 32. The court

permitted both parties to proceed along their preferred paths—scheduling briefing for States’

expedited discovery motion, Defendants’ motion to dismiss, and States’ motion for preliminary

injunction. Order at 1–2, ECF No. 36. States moved for expedited discovery on February 24,

2025, and briefing concluded on March 3, 2025. ECF Nos. 45, 48, 51. Then, Defendants moved

to dismiss on March 7, 2025, and briefing concluded on March 19, 2025. ECF Nos. 58, 64, 67.

On March 12, 2025, while briefing on Defendants’ motion to dismiss was ongoing, the

court granted in part and denied in part States’ request for expedited discovery. New Mexico v.

Page 9 of 42 Musk, No. 25-cv-429 (TSC), 2025 WL 783192 (D.D.C. Mar. 12, 2025). The court ordered

Defendants to respond to the discovery requests by April 2, 2025. Id. at *7. Defendants sought

an emergency stay and writ of mandamus quashing the court’s discovery order from the D.C.

Circuit. Pet. for Writ of Mandamus, In re Musk, No. 25-5072 (D.C. Cir. Mar. 18, 2025). The

Circuit granted the stay on March 26, 2025, concluding the court should decide the motion to

dismiss before allowing discovery. Order, In re Musk, No. 25-2072 (D.C. Cir. Mar. 26, 2025).

The court stayed discovery, Mar. 26, 2025 Min. Order, and now rules on Defendants’ motion to

dismiss.

II. LEGAL STANDARD

Defendants move to dismiss under Federal Rule of Civil Procedure 12(b)(1) for lack of

subject matter jurisdiction. Fed. R. Civ. P. 12(b)(1). The law presumes that “a cause lies outside

[the court’s] limited jurisdiction” unless the plaintiff establishes otherwise. Kokkonen v.

Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994) (citing Turner v. Bank of North Am., 4

U.S. 8, 10 (1799)). When deciding a Rule 12(b)(1) motion, the court must “assume the truth of

all material factual allegations in the complaint and ‘construe the complaint liberally, granting

plaintiff the benefit of all inferences.’” Am. Nat’l Ins. Co. v. FDIC, 642 F. 3d 1137, 1139 (D.C.

Cir. 2011) (quoting Thomas v. Principi, 394 F. 3d 970 (D.C. Cir. 2005)). “[T]he court need not

accept factual inferences drawn by plaintiffs if those inferences are not supported by facts

alleged in the complaint, nor must the Court accept plaintiff’s legal conclusions.” Disner v.

United States, 888 F. Supp. 2d 83, 87 (D.D.C. 2012) (quoting Speelman v. United States, 461 F.

Supp. 2d 71, 73 (D.D.C. 2006)). The court “may consider materials outside the pleadings in

deciding whether to grant a motion to dismiss for lack of jurisdiction.” Jerome Stevens Pharm.,

Inc. v. Food & Drug Admin., 402 F.3d 1249, 1253 (D.C. Cir. 2005) (citation omitted).

Page 10 of 42 Alternatively, Defendants move to dismiss under Federal Rule of Civil Procedure

12(b)(6) for failure to state a claim. Fed. R. Civ. P. 12(b)(6). A Rule 12(b)(6) motion “tests the

legal sufficiency of a complaint.” Browning v. Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002). To

survive such a motion, a “complaint must contain sufficient factual matter, accepted as true, to

‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)

(quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). In other words, the plaintiff

must plead “factual content that allows the court to draw the reasonable inference that the

defendant is liable for the misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556).

“Threadbare recitals of the elements of a cause of action, supported by mere conclusory

statements” are insufficient. Id. (citing Twombly, 550 U.S. at 555).

III. ANALYSIS

A. Standing

Defendants first seek dismissal for lack of subject matter jurisdiction, arguing that States

lack Article III standing. MTD at 6. “Article III of the Constitution confines the federal judicial

power to ‘Cases’ and ‘Controversies.’” United States v. Texas, 599 U.S. ---, ---, 143 S.Ct. 1964,

1969 (2023). For there to be a case or controversy under Article III, a plaintiff must have a

“personal stake” in the case—in other words, standing. Biden v. Nebraska, 600 U.S. ---, ---, 143

S.Ct. 2355, 2365 (2023) (quoting TransUnion LLC v. Ramirez, 594 U.S. ---, ---, 141 S.Ct. 2190,

2203 (2021)). Standing is “a bedrock constitutional requirement” that “safeguard[s] the

Judiciary’s proper—and properly limited—role in our constitutional system.” Texas, 143 S.Ct.

at 1969. When a plaintiff lacks standing, the court lacks jurisdiction. Ariz. Christian Sch.

Tuition Org. v. Winn, 563 U.S. 125, 131 (2011); Dominguez v. UAL Corp., 666 F.3d 1359, 1361

(D.C. Cir. 2012).

Page 11 of 42 To demonstrate standing at the motion to dismiss stage, plaintiffs must allege (1) an

injury in fact—meaning a concrete, particularized, and actual or imminent harm to a legally

protected interest; (2) that is fairly traceable to the defendants’ challenged behavior; and (3)

likely to be redressed by a favorable ruling. See, e.g., New Jersey v. EPA, 989 F.3d 1038, 1045

(D.C. Cir. 2021); Lujan v. Defs. of Wildife, 504 U.S. 555, 560–61 (1992). Plaintiffs must

demonstrate standing at all stages of litigation, “with the manner and degree of evidence

required” at each juncture. Lujan, 504 U.S. at 561. At the motion to dismiss stage, “general

factual allegations of injury resulting from the defendant’s conduct” suffice. Id. at 562. When

evaluating standing, the court assumes plaintiffs would succeed on the merits of their claims.

New Jersey, 989 F.3d at 1045. “If at least one plaintiff has standing, the suit may proceed.”

Nebraska, 143 S.Ct. at 2365.

i. Injury in Fact An injury in fact is “an invasion of a legally protected interest which is (a) concrete and

particularized, . . . and (b) actual or imminent, not conjectural or hypothetical.” Lujan, 504 U.S.

at 560 (citations and internal quotation marks omitted). To evaluate the concrete harm

requirement, courts “assess whether the alleged injury to the plaintiff has a ‘close relationship’ to

a harm ‘traditionally’ recognized as providing a basis for a lawsuit in American courts.”

TransUnion, 141 S.Ct. at 2204 (quoting Spokeo, Inc. v. Robins, 578 U.S. 330, 341 (2016)).

Traditional tangible harms readily qualify—“[i]f a defendant has caused physical or monetary

injury to the plaintiff, the plaintiff has suffered a concrete injury in fact under Article III.” Id.

Intangible harms, such as “reputational harms, disclosure of private information, and intrusion

upon seclusion,” as well as constitutional harms may also suffice. Id. To be particularized, “the

injury must affect ‘the plaintiff in a personal and individual way’ and not be a generalized

grievance.” Food & Drug Admin. v. All. of Hippocratic Med., 602 U.S. ---, ---, 144 S.Ct. 1540,

Page 12 of 42 1556 (2024) (quoting Lujan, 504 U.S. at 560). The actual or imminent component requires an

injury that has “already occurred” or is “likely to occur soon.” Id. (citing Clapper v. Amnesty

Int’l USA, 568 U.S. 398, 409 (2013)). When plaintiffs seek prospective relief such as an

injunction, as States do here, they must also “establish a sufficient likelihood of future injury.”

Id. (citing Clapper, 568 U.S. at 401).

States allege several possible injuries—financial harm based on loss of federal funds,

programmatic harm based on dismantling federal agencies upon which States rely to administer

programs, increased strains on States’ resources based on reductions in enforcement activities by

federal agencies, and unauthorized access and increased security risks to States’ data at federal

agencies. Compl. ¶¶ 227–50. Guided by binding precedent, the court concludes that at least two

states—New Mexico and Washington—allege sufficient injuries for Article III standing.

a. Financial and Programmatic Harm

Defendants concede that States allege financial harm based on loss of federal funding.

MTD at 11 (conceding allegation that “Defendants have halted payments from USAID to public

universities” is a financial harm that “could support Article III standing”). The court agrees—

States sufficiently identify financial harms, which “readily qualify as concrete injuries” under

Article III. TransUnion, 141 S.Ct. at 2204.

States provide at least two clear examples. First, their public universities have been

unable to obtain funds awarded by USAID. Compl. ¶ 231. For instance, Washington State

University expected to receive $9,508,761 from USAID, but “received Suspension/Stop Work

Orders from either USAID or the prime award recipients” in early January. Decl. of Leslie Anne

Brunelli ¶¶ 6–7, ECF No. 6-8. As of February 12, 2025, the day before States filed their

Complaint, Washington State University had not received the expected funds from USAID. Id.

Page 13 of 42 ¶ 12. Second, New Mexico’s Mining and Minerals Division (“MMD”) has been unable to obtain

its federal funding. MMD operates the Coal Mine Reclamation Program and Abandoned Mine

Lands Program, programs created and organized pursuant to the federal Surface Mining Control

and Reclamation Act, to manage the environmental impacts of coal mining, enforce regulations,

and reclaim abandoned mines pursuant to federal standards. Decl. of Albert S. Chang ¶¶ 2–5,

ECF No. 6-6. MMD was awarded $6,036,936 in federal funding for fiscal year 2025. Id. ¶ 21.

In January 2025, MMD “was unable to access any of its federal funding for any of its programs”

and, as of February 10, 2025, it remained unable to access grants awarded under the federal

Bipartisan Infrastructure Law (“BIL”). Id. ¶¶ 12–15. MMD depends on the federal funds to

“safeguard . . . thousands of abandoned mines and associated hazards located across New

Mexico,” including “safeguarding the public from falling into deep mine shafts, preventing

ground subsidence from causing large sinkholes . . . and extinguishing coal fires.” Id. ¶¶ 18–19.

This kind of financial harm—or “pocketbook injury”—is “a prototypical form of injury

in fact.” Collins v. Yellen, 594 U.S. ---, ---, 141 S.Ct. 1761, 1779 (2021) (citation omitted); see

also Aids Vaccine Advoc. Coal. v. U.S. Dep’t of State, --- F. Supp. 3d ----, ----, 2025 WL 752378

(D.D.C. Mar. 10, 2025). The Supreme Court has repeatedly held that states have standing based

on financial harm inflicted by the federal government. See, e.g., Nebraska, 143 S.Ct. at 2366

(Missouri’s estimated loss of “$44 million a year in fees that it otherwise would have earned

under its contract with the Department of Education . . . is an injury in fact . . .”); Dep’t of

Comm. v. New York, 588 U.S. 752, 768 (2019) (States have shown “they will lose out on federal

funds that are distributed on the basis of state population. That is a sufficiently concrete and

imminent injury to satisfy Article III.”); Clinton v. City of New York, 524 U.S. 417, 430 (1998)

(State “suffered an immediate, concrete injury the moment that the President used the Line Item

Page 14 of 42 Veto to cancel” a provision relieving New York of retroactive tax liabilities). States’ loss of

federal funding based on Defendants’ allegedly unconstitutional conduct therefore qualifies as an

injury in fact.

Because States seek prospective relief, past financial harm alone is insufficient; they must

identify a risk of future harm that is “sufficiently imminent and substantial.” TransUnion, 141

S.Ct. at 2210. Defendants argue that States’ financial harms are “speculative, not actual or

imminent.” MTD at 9. The court disagrees. Accepting States’ allegations as true, their public

universities and agencies remain unable to access federal funds. Compl. ¶ 231; Brunelli Decl.

¶ 12; Chang Decl. ¶¶ 12–15. States “made plans and allocated funding for staffing based on the

anticipated receipt of [federal] funds.” Brunelli Decl. ¶ 7.; see also Chang Decl. ¶ 20 (MMD

“made plans and allocated funding for staffing, regulatory initiatives, engineering design, and

construction work based on already awarded dollars.”). The continued inability to draw down

funds is an ongoing and future injury. See, e.g, New York, 588 U.S. at 767 (future loss of federal

funds qualified as injury in fact); Nat’l Fam. Plan. & Reprod. Health Ass’n, Inc. v. Gonzales,

468 F.3d 826, 828–29 (D.C. Cir. 2006) (discussing how “[a]n actual withdrawal of funding from

the association’s members would clearly qualify” as an injury in fact but association did not

“suggest that any such withdrawal has occurred”); Nat’l Council of Nonprofits v. Off. of Mgmt. &

Budget, No. 25-cv-239, 2025 WL 597959, at *6 (D.D.C. Feb. 25, 2025).

Moreover, Defendants ignore the programmatic and public harms stemming from the

abrupt loss of federal funding. MMD depends heavily on federal funding—the Abandoned Mine

Lands Program is “fully federally funded,” Chang Decl. ¶¶ 8–9—and without access to the grant

funding, it cannot provide vital safety services. For instance, mine shafts will be left open,

sinkholes will expand, and coal fires will advance toward infrastructure, posing wildfire risks.

Page 15 of 42 Id. ¶ 20. The financial harm to grant recipients “directly harms the State[s]” by interfering with

“performance of its public function[s].” See Nebraska, 143 S.Ct. at 2368; see also New Jersey,

989 F.3d at 1046 (“[E]xacerbated administrative costs and burdens imposed by the Rule on

petitioner constitute a concrete and particularized injury.”). 4

b. Unauthorized Access to Private Information and Data

The court also finds New Mexico’s allegations that Defendants gained unauthorized

access to its private and proprietary information sufficient to allege an injury in fact at the motion

to dismiss stage. Compl. ¶ 241; Decl. of Sarita Nair ¶¶ 25–26, ECF No. 6-4 (discussing

proprietary data provided to DOL); Decl. of Wayne Propst ¶ 19, ECF No. 6-11 (discussing

proprietary data provided to Treasury). Intangible harms, such as “disclosure of private

information, and intrusion upon seclusion,” may be sufficiently concrete under Article III.

TransUnion, 141 S.Ct. at 2204. In TransUnion, the Supreme Court determined that plaintiffs

whose credit reports containing a misleading OFAC alert “were disseminated to third-party

businesses” suffered a concrete injury because the dissemination bore a “‘close relationship’ to a

harm traditionally recognized as providing a basis for a lawsuit in American courts . . . the tort of

defamation.” Id. at 2208. Plaintiffs whose credit reports contained misleading information, but

which were not disseminated to third parties, lacked a concrete injury, however, because

defamation requires publication. Id. at 2209.

4 In light of the health and safety implications, the court’s conclusion is bolstered by Supreme Court and D.C. Circuit precedent granting states a “special solicitude in our standing analysis” when “protecting [] quasi-sovereign interests.” Massachusetts v. EPA, 549 U.S. 497, 520 & n.17 (2007); New Jersey v. EPA, 989 F.3d 1038, 1045 (D.C. Cir. 2021) (State “is ‘entitled to special solicitude’ in our standing analysis because it has ‘quasi-sovereign interests’ in reducing air pollution.”).

Page 16 of 42 Defendants contend that TransUnion supports their position because States do not allege

“public disclosure.” MTD at 14. But that reads TransUnion too narrowly. As another court in

this district recently explained, “TransUnion does not require that Plaintiffs’ injury be analogous

to defamation or reputational harm; it requires that Plaintiffs’ injury ‘has a close relationship to a

harm traditionally recognized as providing a basis for a lawsuit in American courts.’” All. for

Retired Ams., 2025 WL 740401, at *15 (quoting TransUnion, 141 S.Ct. at 2204). Unauthorized

access to private information “has a close relationship to the harm to privacy vindicated by the

common-law tort of intrusion upon seclusion,” which TransUnion recognized “is an intangible

injury sufficiently ‘concrete’ to satisfy Article III.” Id. (quoting TransUnion, 141 S.Ct. at 2204).

Intrusion upon seclusion occurs when a defendant intentionally interferes “upon the

solitude or seclusion of another or his private affairs or concerns” in a manner “that would be

highly offensive to a reasonable [person].” Restatement (2d) of Torts § 652B. Under D.C. law,

“examining a plaintiff’s private bank account” is an “invasion intrinsic in the tort of intrusion

upon seclusion.” Wolf v. Regardie, 553 A.2d 1213, 1218–19 (D.C. 1989). New Mexico

provided private and sensitive information, including bank account information, taxpayer

identification numbers, and financial account numbers, to Treasury and DOL. Probst Decl. ¶ 17;

Nair Decl. ¶ 25. States allege that Defendants obtained access to DOL’s “system without regard

to security protocols” and to Treasury’s “BFS payment systems,” which Treasury IT personnel

identified as “the single greatest insider threat risk” BFS “has ever faced.” Compl. ¶¶ 85, 89,

177. In some circumstances, Defendants allegedly obtained access to systems “by threatening,

ignoring, and overriding any objections or concerns raised by agency heads and staff.”. Id.

¶ 221. Using threats or undue pressure to access States’ private financial information would

likely be highly offensive to a reasonable person. At the motion to dismiss stage, this suffices as

Page 17 of 42 an injury analogous to intrusion upon seclusion. See All. for Retired Ams, 2025 WL 740401, at

*16 (“Plaintiffs’ alleged injury—the disclosure of their private information to third parties

without a lawful right to access it—bears a close relationship to the harm essential to an intrusion

upon seclusion at common law.”); cf. Trump, 2025 WL 573771, at *12 (finding States have

“standing to seek injunctive relief where inadequate cybersecurity measures put their

confidential information at risk of disclosure”); Univ. of Cal. Student Assoc. v. Carter, No. 25-

cv-354-RDM, 2025 WL 542586, at *4 n.3 (D.D.C. Feb. 17, 2025) (leaving standing for another

day but noting plaintiff’s “theory of standing—including its contention that its members face an

imminent threat of injury analogous to that protected by the common law tort of intrusion upon

seclusion—is [not] so implausible that the Court lacks authority” to consider the TRO).

The court is aware that another court has concluded access to sensitive information

without disclosure failed to satisfy Article III’s injury requirement. See AFL-CIO, 2025 WL

542825, at *1 n.1 (Plaintiffs fail to establish “a substantial likelihood of standing” based on

“insufficient evidence and argument that any information has been or will be shared

unlawfully.”). That decision addressed a request for injunctive relief—a Temporary Restraining

Order—which requires a “substantial likelihood of standing.” Id. The bar is not so high at the

motion to dismiss stage. At this juncture, a plaintiff need only “state a plausible claim” to

standing. Humane Soc’y of the U.S. v. Vilsack, 797 F.3d 4, 8 (D.C. Cir. 2015).

c. Reduced Enforcement Activities

Finally, reduced enforcement efforts by federal agencies, namely eliminating CFPB

consumer protection efforts, likely do not qualify as an injury in fact under United States v.

Texas, 599 U.S. ---, 143 S.Ct. 1964 (2023), in which the Supreme Court held that Texas and

Louisiana lacked standing to challenge the “Executive Branch’s exercise of enforcement

Page 18 of 42 discretion over whether to arrest or prosecute.” Id. at 1970. The Court identified but did not

“analyze” a hypothetical scenario that “might change” the “standing calculus” if the “Executive

Branch wholly abandoned its statutory responsibilities to make arrests or bring prosecutions.”

Id. at 1974. States’ allegations come close to this hypothetical scenario. But because the court

concludes that States sufficiently allege an injury in fact based on financial and programmatic

harm and unauthorized access to private information, it need not break new ground regarding “an

extreme case of non-enforcement.” Id.

ii. Causation and Redressability Once an injury in fact is sufficiently alleged, “a plaintiff must demonstrate . . . that the

injury likely was caused or will be caused by the defendant, and [] that the injury likely would be

redressed by the requested judicial relief.” All. for Hippocratic Med., 144 S.Ct. at 1555.

Because the causation and redressability requirements “are often ‘flip sides of the same coin,’”

id. (quoting Sprint Comms. Co. v. APCC Servs., Inc., 554 U.S. 269, 288 (2008)), the court will

consider them together. “If a defendant’s action causes an injury, enjoining the action or

awarding damages for the action will typically redress that injury.” Id. To establish causation,

“the plaintiff must show a predictable chain of events leading from the government action to the

asserted injury.” Id. at 1558. “[T]he relevant inquiry is whether the plaintiffs’ injury can be

traced to ‘allegedly unlawful conduct’ of the defendant.” Collins, 141 S.Ct. at 1780 (quoting

Allen v. Wright, 468 U.S. 737, 751 (1984)). The “‘links in the chain of causation’ . . . must not

be too speculative or too attenuated.” All. for Hippocratic Med., 144 S.Ct. at 1557 (quoting

Allen, 468 U.S. at 759; then citing Clapper, 568 U.S. at 410–411). When a plaintiff “is an object

of the action it seeks to challenge, causation and redressability are usually easy to demonstrate.”

Ohio v. EPA, 98 F.4th 288, 300 (D.C. Cir. 2024). If causation rests on actions taken by third

parties not before the court, “plaintiff[s] must show that the ‘third parties will likely react in

Page 19 of 42 predictable ways’ that in turn will likely injure the plaintiffs.” Id. (quoting California v. Texas,

593 U.S. ---, ---, 141 S.Ct. 2104, 2117 (2021)).

Defendants argue that, even if States suffered some harm, that harm is not traceable to

Defendants, as opposed to independent third parties at the underlying agencies. MTD at 11–12.

The court disagrees and finds that States allege “a predictable chain of events leading from”

Defendants’ actions to the asserted injuries. See All. for Hippocratic Med., 144 S.Ct. at 1558.

For States’ financial and programmatic harm, they allege that Musk ordered and oversaw the

dismantling of USAID, which provides funds to States’ public universities, see supra Part I.B–C;

Compl. ¶ 98 (Musk posted on X “[t]ime for [USAID] to die” and “[w]e spent the weekend

feeding USAID into the woodchipper.”); that DOGE cancelled hundreds of contracts at federal

agencies, id. ¶¶ 205–08 (DOGE posted on X “that it had eliminated 104 contracts related to

diversity, equity, inclusion and accessibility (DEIA) at more than a dozen federal agencies” on

January 31, “that it had canceled thirty-six contracts across six agencies” on February 3, and that

it terminated “199 contracts” across 35 agencies on February 7); and that Musk “has been

directing the work of DOGE personnel,” id. ¶ 59. Accepting these allegations as true, the court

finds that States sufficiently allege that Defendants caused their financial and programmatic

harm by halting funding and cancelling contracts. Defendants are also the source of harm to

States’ privacy interests because they allegedly obtained unauthorized access to States’ private

and sensitive information.

Even if other employees or officials at agencies technically pushed the button to halt

payments or provided Defendants with data access, States’ allegations permit an inference that

the third parties “‘react[ed] in predictable ways’ to the defendants’ conduct.” Murthy v.

Missouri, 603 U.S. ---, ---, 144 S.Ct. 1972, 1986 (2024) (quoting New York, 588 U.S. at 768).

Page 20 of 42 States allege that Defendants obtained compliance from agencies by threatening “legal risk,”

Compl. ¶ 84; “threaten[ing] to call federal marshals” to remove physical obstruction, id. ¶ 95;

and “push[ing] [officials] out of their own offices,” id. ¶ 166. Individuals who continued to

object or resist were quickly placed on administrative leave or terminated. See id. ¶ 85 (acting-

Treasury Secretary placed on administrative leave after objecting to DOGE’s instructions to stop

payments); id. ¶ 102 (“DOGE personnel approached [USAID’s] acting leadership and handed

them a list of 58 people, almost all senior career officials, to put on administrative leave.”); id.

¶ 137 (DOE’s chief information officer was replaced by a “DOGE representative” after opposing

DOGE’s access to DOE’s IT system). It is true that, as Defendants note, “independent acts” by

third parties typically break any causal link for standing purposes. MTD at 11; see also Murthy,

144 S.Ct. at 1986 (“[I]t is a bedrock principle that a federal court cannot redress ‘injury that

results from the independent action of some third party not before the court.’” (citation omitted)).

But acts obtained through threats are not independent. Therefore, whether or not third parties at

agencies also contributed to States’ injuries, they did so at Defendants’ direction, and the causal

nexus is clear.

In the context of an Appointments Clause violation, causation is satisfied when the injury

“was a result of the constitutional infirmity to which [plaintiffs] object.” Andrade v. Lauer, 729

F.2d 1475, 1495 (D.C. Cir. 1984). In Andrade, former federal employees challenged their

termination by government officials who they alleged occupied their offices in violation of the

Appointments Clause and therefore “were constitutionally disqualified from exercising power

over them.” Id. at 1480–81, 1495. The same is true here. The Executive may validly access

data or terminate funding or contracts, but States allege that Defendants “had no constitutional

[or statutory] authority” to do so. See id.; cf. Seila Law LLC v. CFPB, 591 U.S. ---, ---, 140 S.Ct.

Page 21 of 42 2183, 2196 (2020) (“In the specific context of the President's removal power, we have found it

sufficient that the challenger sustains injury from an executive act that allegedly exceeds the

official's authority.” (citation and internal quotation marks omitted))

Assuming States will prevail on the merits for the purposes of assessing standing, their

claims are redressable. If the court finds that Defendants’ past actions lack lawful authority and

enjoins any future unlawful conduct, including interference with States’ funding and access to

their data, their injuries will be redressed. See Andrade, 729 F.2d at 1495 (“[I]f the appellants

are granted the relief they seek—a declaration and injunction against [Defendants] improperly

exercising the powers of office against them—their injury will be redressed.”); L.M.-M. v.

Cuccinelli, 442 F. Supp. 3d 1, 22 (D.D.C. 2020) (holding plaintiffs had standing to challenge

actions by government officials on the ground that the official invalidly held office because court

may determine actions “shall have no force or effect”).

In sum, at the motion to dismiss stage and accepting States’ allegations as true, States

have standing to seek declaratory and injunctive relief for Defendants’ Appointments Clause

violations and ultra vires actions.

B. Appointments Clause Claim

i. Constitutional Framework States allege that Musk’s actions, including actions taken at his direction by DOGE

personnel, violate the Appointments Clause because Musk has not been constitutionally

appointed. Article II of the Constitution provides: “The executive Power shall be vested in a

President of the United States of America,” who must “take Care that the laws be faithfully

executed.” U.S. Const., Art. II, § 1, cl. 1; id. § 3. “Because no single person could fulfill that

responsibility alone, the Framers expected that the President would rely on subordinate officers

for assistance.” Seila Law, 140 S.Ct. at 2191. Individual officials exercising “power on behalf

Page 22 of 42 of the President in the name of the United States” acquire “legitimacy and accountability to the

public through ‘a clear and effective chain of command’ down from the President, on whom all

the people vote.’” United States v. Arthrex, Inc., 594 U.S. ---, ---, 141 S.Ct. 1970, 1979 (2021)

(quoting Free Enter. Fund v. Pub. Acct. Oversight Bd., 561 U.S. 477, 498 (2010)); see also Seila

Law, 140 S.Ct. at 2203 (“[I]ndividual executive officials will still wield significant authority, but

that authority remains subject to the ongoing supervision and control of the elected President.”).

Although individual executive officials may assist the President, the “President ‘cannot delegate

ultimate responsibility or the active obligation to supervise that goes with it.’” Seila Law, 140

S.Ct. at 2203 (quoting Free Enter. Fund, 561 U.S. at 496–97).

The Appointments Clause states that the President

shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.

U.S. Const., Art. II, § 2, cl. 2. By distributing the power to fill government offices between the

Executive and Legislative Branches, separation of powers principles are “embedded in the

Appointments Clause.” Freytag v. C.I.R., 501 U.S. 868, 882 (1991). The Founders sought to

remedy “one of the American revolutionary generation’s greatest grievances against executive

power”—the “manipulation of official appointments.” Id. at 883 (quoting G. Wood, The

Creation of The American Republic 1776–1787, 79 (1969)). The nomination and appointment

power “guarantees” the President’s “accountability for the appointees’ actions” and “adds a

degree of accountability in the Senate.” Arthrex, 141 S.Ct. at 1979. The President retains

“primary responsibility for nominations,” ensuring that the “blame of a bad nomination [] fall[s]

upon the president singly and absolutely,” but the Senate’s advice and consent serves as “an Page 23 of 42 excellent check upon a spirit of favoritism in the President and a guard against the appointment

of unfit characters.” Fin. Oversight & Mgmt. Bd. for Puerto Rico, v. Aurelius Inv., 590 U.S. ---, -

--, 140 S.Ct. 1649, 1657 (2020) (citations omitted). “The Senate’s advice and consent power is a

critical ‘structural safeguard [] of the constitutional scheme.’” NLRB v. SW Gen., Inc., 580 U.S.

288, 293 (2017) (quoting Edmond v. United States, 520 U.S. 651, 659 (1997)). Appointments

Clause challenges also implicate “the strong interest of the federal judiciary in maintaining the

constitutional plan of separation of powers.” Freytag, 501 U.S. at 879. “The structural interests

protected by the Appointments Clause are not those of any one branch of Government but of the

entire Republic.” Id. at 880.

To state an Appointments Clause violation, a plaintiff must allege that an “Officer[] of

the United States,” U.S. Const., Art. II, § 2, cl. 2, has not been constitutionally appointed. See,

e.g., Lucia v. SEC, 585 U.S. 237, 244–46 (2018). Defendants do not argue that Musk has been

constitutionally appointed, but dispute whether he qualifies as an officer subject to the

Appointments Clause. Defs.’ Reply at 11, ECF No. 67. “In the constitutional context, an

‘officer’ is someone who ‘occup[ies] a continuing position established by law’ and who

‘exercis[es] significant authority pursuant to the laws of the United States.’” Al Bahlul v. United

States, 967 F.3d 858, 869 (D.C. Cir. 2020) (quoting Lucia, 585 U.S. at 245). Officers are then

subclassified as principal or inferior officers. Whether an officer is a principal or inferior officer

“‘depends on whether he has a superior’ other than the President.” Arthrex, 141 S.Ct. at 1980

(quoting Edmond, 520 U.S. at 662). An inferior officer is “directed and supervised at some level

by others who were appointed by Presidential nomination with the advice and consent of the

Senate.” Edmond, 520 U.S. at 663. A principal officer is directed and supervised only by the

President. Id. The President must appoint, with the advice and consent of the Senate, all

Page 24 of 42 principal officers. Arthrex, 141 S.Ct. at 1979. For inferior officers, the “‘default manner of

appointment’ is also nomination by the President and confirmation by the Senate,” but Congress

may authorize the President, a federal court, or the head of a department to appoint inferior

officers without Senate involvement. Id. at 12 (quoting Edmond, 520 U.S. at 660). Non-officer

employees, “the broad swath of ‘lesser functionaries’ in the Government’s workforce,” serve in

an “occasional or temporary” capacity and “the Appointments Clause cares not a whit about who

named them.” Lucia, 585 U.S. at 245 (quoting Buckley v. Valeo, 424 U.S. 1, 126, n.162 (1976)).

ii. Continuing Position Established by Law Defendants’ primary argument against States’ Appointments Clause claim is that States

fail to allege, and even concede, that “Musk ‘does not occupy an office of the United States.’”

MTD at 18 (quoting Compl. ¶¶ 6, 25). They argue that because Musk does not occupy an office

vested with formal powers by Congress, he is insulated from the Appointments Clause. But

constitutional safeguards are not so easily evaded.

States allege that Musk is a “special Government employee.” Compl. ¶ 25 (quoting 18

U.S.C. § 202(a)); Reply at 17–18. Defendants argue that a special government employee can

never qualify as an officer because the position is “necessarily time-limited.” MTD at 30. The

court disagrees for two reasons.

First, the plain text of the statute defining special government employees confirms such

individuals may qualify as officers. See 18 U.S.C. § 202(a). Congress defined “special

Government employee” in the conflict-of-interest provisions of Title 18 as

an officer or employee of the executive or legislative branch of the United States Government . . . who is retained, designated, appointed, or employed to perform, with or without compensation, for not to exceed [130] days during any period of [365] consecutive days, temporary duties either on a full-time or intermittent basis.

Page 25 of 42 Id. (emphasis added); see also Assoc. of Am. Physicians & Surgeons, Inc. v. Clinton, 997 F.2d

898, 914–15 (D.C. Cir. 1993) (noting special government employees are defined in 18 U.S.C.

§ 202(a)). As the D.C. Circuit recently explained in addressing an Appointments Clause

challenge in Al Bahlul v. United States, 967 F.3d 858 (D.C. Cir. 2020), “Congress generally uses

the word ‘officer’ to refer to principal and inferior officers who must be appointed in accordance

with the Appointments Clause.” Id. at 869; see also Steele v. United States, 267 U.S. 505, 507

(1925) (explaining that it is usually “true that the words ‘officer of the United States,’ when

employed in . . . statutes . . . have the limited constitutional meaning”). If a special government

employee could never qualify as an officer in the constitutional sense, Congress easily could

have omitted “officer” from the definition. Defendants do not identify a single case, statute,

regulation, executive order, or other persuasive authority that concludes that special government

employee and Officer of the United States are mutually exclusive positions. See MTD at 30;

Reply at 17–18.

Second, even necessarily time-limited positions may require appointment. An individual

may qualify as a constitutional officer even though their position is “temporary” and created

“essentially to accomplish a single task, and when that task is over the office is terminated.”

Morrison v. Olson, 487 U.S. 654, 672 (1988) (holding temporary independent counsel was “an

‘inferior’ officer in the constitutional sense”). Accordingly, individuals designated as special

government employees have been subject to the appointment process when placed in positions

that exercise significant authority. See In re Khadr, 823 F.3d 92, 96–97 (D.C. Cir. 2016)

(explaining that Department of Defense has designated civilian judges nominated by President

and confirmed by Senate to serve on U.S. Court of Military Commission Review as “‘special

government employees’ under the relevant government employment statutes” (citation omitted)).

Page 26 of 42 Defendants may not circumvent the Appointments Clause by designating individuals as special

government employees. Cf. Assoc. of Am. Physicians & Surgeons, Inc., 997 F.2d at 915

(agencies may not “simply appoint 10 private citizens as special government employees for two

days” to avoid Federal Advisory Committee Act).

That does not end the court’s inquiry. Having concluded that special government

employees are not automatically exempt from the Appointments Clause, the court must assess

whether Musk’s particular position is “sufficiently ‘continuing’ to constitute an office.” United

States v. Donziger, 38 F. 4th 290, 296 (2d Cir. 2022), cert denied, 142 S.Ct. 868 (2023). In

doing so, the court takes a holistic approach, focusing on a position’s “tenure, duration,

emolument, and duties,” and whether the duties are “continuing and permanent, not occasional or

temporary.” United States v. Germaine, 99 U.S. 508, 511–12 (1878); The Test for Determining

“Officer” Status Under the Appointments Clause, 49 Op. O.L.C. __, slip op. at 3 (Jan. 16, 2025)

(“[T]he Supreme Court’s approach to assessing the ‘continuing’ nature of a position has been a

holistic one that considers both how long a position lasts as well as other attributes of the

position that bear on continuity.” (citations omitted)). Positions that do not qualify are “transient

or fleeting,” “personal to a particular individual,” and assigned merely “incidental” duties.

Donziger, 38 F.4th at 296–97 (citation omitted).

Special government employee describes Musk’s formal classification within the federal

government, but not necessarily the position he holds. See In re Khadr, 823 F.3d at 96 (special

government employees served as civilian judges); Assoc. of Am. Physicians & Surgeons, Inc.,

997 F.2d at 900–01 (special government employees served on “President’s Task Force on

National Health Care Reform”); Physicians for Social Resp. v. Wheeler, 956 F.3d 634, 640 (D.C.

Cir. 2020) (special government employees served on EPA scientific advisory committees).

Page 27 of 42 States allege that Musk is DOGE’s leader. Compl. ¶¶ 59–60, 224. The court finds that

States have sufficiently pleaded that this position qualifies as “continuing and permanent, not

occasional or temporary,” Germaine, 99 U.S. at 511–12. The subsidiary DOGE Service

Temporary Organization has a termination date of July 4, 2026, but there is no termination date

for the overarching DOGE entity or its leader, suggesting permanence. See Compl. ¶¶ 52–58;

Pls.’ Opp’n to Defs.’ MTD (“Opp’n”) at 27–28, ECF No. 64; DOGE EO § 3(a)–(b); MTD at 31

(conceding “neither” Musk nor USDS “are temporary organizations”). Even if the DOGE entity

and all affiliated positions terminated alongside the DOGE Temporary Service, that does not

defeat an Appointments Clause claim. See Morrison, 487 U.S. at 672; Donziger, 38 F.4th at 297

(“Although the special prosecutors’ duties terminate upon performance, the positions are not

transient or fleeting.”). President Trump may instruct another individual to lead DOGE and, if

he does, States’ Appointments Clause claim may also lie against that individual. Thus, the

position is not personal to Musk. And, as discussed in greater detail below, infra Part III.B.iii,

Musk’s duties are not incidental. States allege that Musk influences the operations of at least 17

agencies, the existence of federal programs, employment terms for millions of individuals,

federal funding decisions, and data usage practices. Compl. ¶¶ 24, 70, 98–100, 200, 228. Those

duties are central, as opposed to incidental, to the regular operations of government. Pursuant to

the DOGE Executive Order, and subsequent Executive Orders further clarifying and expanding

DOGE’s authority, see supra Part I.C, the leader of DOGE performs duties that are “continuing

and permanent, not occasional or temporary.” Germaine, 99 U.S. at 511–12.

Defendants focus on the requirement that constitutional offices “be established by law,”

U.S. Const., Art. II, § 2, cl. 2, in a left-field effort to dismiss States’ claim. MTD at 18–22. They

advance a circular reading of the Appointments Clause that would allow the President to

Page 28 of 42 restructure the entire federal government without legislative authority and to evade judicial

review. According to Defendants, the Appointments Clause “turns exclusively on the de jure—

not de facto—authority that a person wields as a matter of law.” MTD at 18. Under this theory,

for a violation to occur, there must first be an office lawfully established and imbued with formal

authority. Id. at 18–20. But if the President creates a position without Congressional authority,

there is no violation. Essentially, Defendants argue, so long as the Executive acts without

Congressional authority, the court cannot review its conduct. Under this reasoning, the President

could authorize an individual to act as a Prime Minister who vetoes, amends, or adopts

legislation enacted by Congress, as an Ultimate Justice who unilaterally overrules any decision

by the Supreme Court, as a King who exercises preeminent authority over the entire nation, or

allow a foreign leader to direct American armed forces without violating the Appointments

Clause. See MTD at 15.

Defendants appear to sanction unlimited Executive power, free from checks and

balances, but the Constitution prohibits unilateral control over “official appointments” by

“dividing the power to appoint the principal federal offices . . . between the Executive and

Legislative Branches.” Freytag, 501 U.S. at 883–84. It has been accepted since the first

Congress that “the legislature gets to ‘create[ ] the office, define[ ] the powers, [and] limit[ ] its

duration.’” Seila Law, 140 S.Ct. at 2227 (Kagan, J., concurring in part and dissenting in part)

(alterations in original) (quoting 1 Annals of Cong. 582 (1789)); see, e.g., United States v.

Maurice, 26 F. Cas. 1211, 1213 (C.C.D. Va. 1823) (“[T]he general spirit of the constitution []

seems to have arranged the creation of office among legislative powers[.]”); Cochnower v.

United States, 248 U.S. 405, 407 (1919) (“Primarily we may say that the creation of offices and

the assignment of their compensation is a legislative function.”); Myers v. United States, 272

Page 29 of 42 U.S. 52, 130 (1926) (“[T]he power of appointment and removal cannot arise until Congress

creates the office and its duties and powers, and must accordingly be exercised and limited only

as Congress shall in the creation of the office prescribe.”); Buckley, 424 U.S. at 138 (“Congress

may undoubtedly under the Necessary and Proper Clause create ‘offices’ in the generic

sense[.]”); Weiss v. United States, 510 U.S. 163, 184 (1994) (Souter, J., concurring) (“Framers

came to appreciate the necessity of separating at least to some degree the power to create federal

offices (a power they assumed would belong to Congress) from the power to fill them[.]”); Seila

Law, 140 S.Ct. at 2227 (Kagan, J., concurring in part and dissenting in part) (“The President, as

to the construction of his own branch of government, can only try to work his will through the

legislative process.”); Trump v. United States, 603 U.S. ---, ---, 144 S.Ct. 2312, 2349 (2024)

(Thomas, J., concurring) (“If Congress has not reached a consensus that a particular office

should exist, the Executive lacks the power to unilaterally create and then fill that office.”).

The fact that President Trump purports to create a position and assign it powers by

Executive Order does not preclude review under the Appointments Clause. Cf. Metro. Wash.

Airports Auth. v. Citizens for the Abatement of Aircraft Noise, Inc., 501 U.S. 252, 266 (1991)

(holding that creation by state enactments is not enough to immunize an agent of the federal

government from separation-of-powers review). The court cannot close its eyes to “positions

extant in the bureaucratic hierarchy.” Tucker v. Comm’r of Internal Revenue, 676 F.3d 1129,

1133 (D.C. Cir. 2012). No branch may aggrandize its own appointment power at the expense of

another and no branch may abdicate its Appointments Clause duties. Weiss, 510 U.S. at 184

(Souter, J., concurring). And the Judiciary has a duty to maintain “the constitutional plan of

separation of powers.” Freytag, 501 U.S. at 879 (citation omitted). Consequently, the court will

reject Defendants’ perverse reading of the Appointments Clause.

Page 30 of 42 iii. Exercises Significant Authority States sufficiently allege that Musk exercises significant authority pursuant to the laws of

the United States. The “significant authority” test, established in Buckley, 424 U.S. at 126, and

consistently reaffirmed by the Supreme Court, see, e.g., Lucia, 585 U.S. at 246–47; Freytag, 501

U.S. at 881, focuses on the “extent of power an individual wields in carrying out his assigned

functions,” Lucia, 585 U.S. at 245. The relevant factors are “(1) the significance of the matters

resolved by the officials, (2) the discretion they exercise in reaching their decisions, and (3) the

finality of those decisions.” Tucker, 676 F.3d at 1133.

States allege that President Trump is the only individual in the Executive Branch who

resolves matters of greater significance than Musk. They claim that Musk decides the continued

existence of federal agencies, the employment terms for millions of federal employees, and

federal funds allocated by grants, contracts, and loans. See Compl. ¶¶ 98–100, 120, 146–47.

Musk’s reach seemingly extends throughout the Executive Branch—“when asked whether there

was anything in the federal government that [] Mr. Musk had been instructed not to touch,”

President Trump stated “we haven’t discussed that much,” but “maybe” matters involving “some

high intelligence or something.” Id. ¶ 70.

In carrying out his assigned functions, Musk possesses “significant discretion” and

receives minimal supervision. See Freytag, 501 U.S. at 882. States allege that President Trump

assigns tasks and duties to Musk directly, Compl. ¶¶ 72, 100, 151, 169, 220, and “Musk reports

only to President Trump,” id. ¶ 71. According to States, Musk briefs President Trump only “as

needed,” id. ¶ 73, and takes actions “without advance consultation with President Trump or

White House staff,” id. ¶ 219.

The last factor is not determinative. An individual may qualify as an officer “even when

their decisions [a]re not final.” Lucia, 585 U.S. at 247. At this stage, States plausibly allege that

Page 31 of 42 Musk makes decisions about “federal expenditures, contracts, government property, and the very

existence of federal agencies.” Opp’n at 26 (citing Compl. ¶¶ 200–25). At a minimum, the

Complaint alleges facts indicating that Musk directs DOGE personnel within seventeen agencies,

and those personnel have accessed and edited sensitive data, terminated contracts, transferred or

cancelled leases, taken down websites, and placed employees on leave. See supra I.C. The

possibility that a decision may be revisited or reviewed within an agency “make[s] no difference

for officer status.” Lucia, 585 U.S. at 249.

Defendants unsuccessfully attempt to minimize Musk’s role, framing him as a mere

advisor without any formal authority. MTD at 26–29. They point to a “longstanding historical

practice” of Presidents relying on close advisors or forming advisory groups “without having to

seek approval from Congress.” Id. at 27; see also id. at 27–29 (discussing advisors or advisory

groups relied on by President Andrew Jackson, President Lyndon Johnson, President Woodrow

Wilson, President Ronald Reagan, President Bill Clinton, and President Barack Obama). But to

conclude that Musk is solely an advisor, the court must ignore, misconstrue, or reject States’

allegations, which it cannot do on a motion to dismiss. Iqbal, 556 U.S. at 678. States do not

allege that Musk serves in a “purely advisory role.” MTD at 29. Rather, they point to facts

supporting an inference that Musk directs actions by other federal employees, including DOGE

personnel, Compl. ¶¶ 60, 70–75, briefs President Trump only “as needed,” id. ¶ 73, and acts

“without advance consultation with President Trump or White House staff,” id. ¶ 219. These

allegations do not describe a mere advisor.

Alternatively, Defendants argue that, even if Musk directed others to take the

“complained-of-actions,” States fail to establish that the actions “were not formally approved by

Page 32 of 42 a relevant agency actor with proper authority.” MTD at 23. Defendants insist Andrade v.

Regnery, 824 F.2d 1253 (D.C. Cir. 1987) thus bars States’ claim. MTD at 24.

In Andrade, the D.C. Circuit held that the termination or demotion of federal employees

under a reduction in force (RIF) program did not violate the Appointments Clause because a duly

appointed officer with the statutory responsibility for demoting or firing employees ratified all

actions taken in connection with the RIF before it went into effect. 824 F.2d at 1255–57. Even

though unappointed staff planned and largely executed the RIF, it “did not abridge the

requirements of the Appointments Clause” because a duly appointed official had “final

authority” on the day it took effect and was “the legal architect” of the RIF. Id. at 1257. The

D.C. Circuit explained that “it is an everyday occurrence in the operation of government for staff

members to conceive and even carry out policies for which duly appointed or elected officials

take official responsibility.” Id.

The D.C. Circuit made that determination following summary judgment proceedings and

with the benefit of a factual record that clearly established a duly appointed official ratified the

contested actions. Id. at 1255–56. At this juncture, the court lacks a factual record and must

accept States’ allegations as true. Iqbal, 556 U.S. at 678. States allege that Musk and DOGE

personnel, not a relevant agency actor with proper authority, took the challenged actions.

Compl. ¶¶ 60, 64–225. The court cannot accept Defendants’ contrary claim that agency actors

signed off on all decisions.

Moreover, Defendants improperly invert Andrade’s holding. They read Andrade to hold

that Musk can lawfully direct actions by agency actors, so long as those actors were duly

appointed. MTD at 22–23. But Andrade addressed the “everyday occurrence” of “staff

members” carrying out policies adopted by “duly appointed or elected officials.” 824 F.2d at

Page 33 of 42 1257. The apt analogy would be an appointed agency head directing Musk to carry out a policy,

not the opposite. States allege that, rather than subordinate himself to duly appointed officials,

Musk “reports only to President Trump,” Compl. ¶ 71, removes agency officials that stand in his

way, id. ¶¶ 84–85, 137–38, or obtains compliance through threats and intimidation, id. ¶ 95.

Andrade did not resolve whether an individual who has not been duly appointed may direct the

actions of appointed officials, and extending its holding to encompass that scenario would be

particularly inappropriate in the face of allegations that agency actors obeyed Musk’s directions

to avoid legal action or termination.

Because States allege that Musk occupies a continuing position established by law and

exercises significant authority pursuant to the laws of the United States without proper

appointment, the Complaint states a claim under the Appointments Clause. Defendants’ motion

to dismiss Count I will therefore be denied.

C. Excess of Statutory Authority Claim

States’ second cause of action charges Musk and DOGE with conduct in excess of

statutory authority—frequently termed an ultra vires claim. Id. ¶¶ 261–72. In general, courts

may review and enjoin illegal executive action. See, e.g., Armstrong v. Exceptional Child Ctr.,

Inc., 575 U.S. 320, 327 (2015); Leopold v. Manger, 102 F.4th 491, 494–95 (D.C. Cir. 2024).

“The power of federal courts of equity to enjoin unlawful executive action is subject to express

and implied statutory limitations.” Armstrong, 575 U.S. at 327. For instance, Congress

prescribed the standard manner and scope for judicial review of agency action in the

Administrative Procedure Act (“APA”), 5 U.S.C. § 701 et seq., and regularly further limits or

defines judicial review over particular agency actions, see, e.g., Armstrong, 575 U.S. at 327

(addressing Congress’s implied intent to preclude private enforcement of a statutory provision in

the Medicaid Act, 42 U.S.C. § 1386a(a)(30)(A)); Changji Esquel Textile Co. Ltd. v. Raimondo, Page 34 of 42 40 F.4th 716, 722 (D.C. Cir. 2022) (addressing preclusion of judicial review under the APA in

the Export Control Reform Act of 2018). Even if a “specific or a general statutory review

provision” does not provide a clear cause of action, a plaintiff “may still be able to institute a

non-statutory review action.” Chamber of Comm. of U.S. v. Reich, 74 F.3d 1322, 1327 (D.C.

Cir. 1996).

Defendants contend that States’ ultra vires claim must satisfy the test derived from

Leedom v. Kyne, 358 U.S. 184 (1958). See MTD at 32 (citing Changji Esquel, 40 F.4th at 722).

Under that standard, a “plaintiff must establish three things: ‘(i) the statutory preclusion of

review is implied rather than express; (ii) there is no alternative procedure for review of the

statutory claim; and (iii) the agency plainly acts in excess of its delegated powers and contrary to

a specific prohibition in the statute that is clear and mandatory.’” Changji Esquel, 40 F.4th at 722

(quoting DCH Reg’l Med. Ctr. v. Azar, 925 F.3d 503, 509 (D.C. Cir. 2019)). The court agrees

that test applies, but it is not as rigid as Defendants suggest.

Leedom, Changji Esquel, and the other cases Defendants cite address ultra vires claims

against administrative agencies for statutory violations when a statute precludes judicial review.

See, e.g., Leedom, 358 U.S. at 184–85 (challenging National Labor Relations Board’s

compliance with Section 9(b)(1) of the National Labor Relations Act); Changji Esquel, 40 F.4th

at 719 (challenging Department of Commerce’s compliance with the Export Control Reform Act

of 2018, 50 U.S.C. § 4813(a)); Fed. Express Corp. v. U.S. Dep’t of Comm., 39 F.4th 756, 759

(D.C. Cir. 2022) (same); Trudeau v. Fed. Trad Com’n, 456 F.3d 178, 188 (D.C. Cir. 2006)

(challenging FTC’s compliance with 15 U.S.C. § 46(f)). Here, States do not claim that

Defendants violated a specific statutory prohibition but argue that Musk and DOGE exceed the

authority granted to temporary organizations by 5 U.S.C. § 3161 and no other statute authorizes

Page 35 of 42 their actions. Compl. ¶¶ 261–72. Conduct in violation of specific statutory limitations “is just

one example of an ultra vires act—not the only example of an ultra vires action.” Leopold, 102

F.4th at 495.

Courts may enjoin federal officials where their actions are not authorized by statute, the

Constitution, or common law. Id. at 495–96 (collecting cases). The history and tradition of

judicial review of executive actions unauthorized by law is well established. See, e.g., Am. Sch.

of Magnetic Healing v. McAnnulty, 187 U.S. 94, 110 (1902) (upholding jurisdiction to review

ultra vires claim “[o]therwise the individual is left to the absolutely uncontrolled and arbitrary

action of a public and administrative officer, whose action is unauthorized by any law”). “When

an executive acts ultra vires, courts are normally available to reestablish the limits on his

authority.” Dart v. United States, 848 F.2d 217, 224 (D.C. Cir. 1988). Absent clear and

convincing evidence that Congress intended to preclude judicial review, courts may ensure the

Executive abides by “the scope of authority granted or [] the objectives specified” by Congress.

Id. (quoting S. Rep. No. 752, 79th Cong., 1st Sess. 26 (1945)). Reading Changji Esquel as

consistent with this Circuit’s ultra vires precedents, a plaintiff must show that: (1) equitable

review is not expressly precluded, (2) there is no alternative procedure for review, and (3) the

Executive plainly acts in excess of its delegated powers and contrary to law. See id. at 224–27;

Reich, 74 F.3d at 1327.

Defendants point to no statute that expressly or impliedly precludes equitable judicial

review here. Instead, they argue that the temporary organization statute, 5 U.S.C. § 3161, does

not contain a private cause of action. MTD at 31. But the D.C. Circuit has “never held that a

lack of a statutory cause of action is per se a bar to judicial review.” Reich, 74 F.3d at 1328.

Therefore, equitable review is not expressly precluded.

Page 36 of 42 There is no apparent “alternative procedure” for States’ claim. Changji Esquel, 40 F.4th

at 722. Defendants argue that “the States could potentially direct their lawsuit at the agencies

pursuant to the [APA].” MTD at 32. But States are not challenging agency action. President

Trump expressly exempted DOGE from the definition of an agency under the APA. See DOGE

EO §§ 2(a) (excluding “the Executive Office of the President or any components thereof” from

the definition of agency under the APA). In doing so, President Trump at least attempted to

insulate DOGE from judicial review as an agency under the APA. And, in a petition before the

Supreme Court, Defendants argue that DOGE is not an agency under another statute—the

Freedom of Information Act. See Appl. to Stay Pending Cert. or Mandamus and Req. for

Immediate Admin. Stay, In re U.S. DOGE Serv., (No. 24A1122). The fact that States may

obtain judicial review of actions by other Executive Branch components does not address

whether States may seek judicial review of DOGE and Musk’s actions—which is the question

before this court.

Actions taken pursuant to Executive Orders are not insulated from judicial review.

Reich, 74 F.3d at 1328. In Reich, plaintiffs challenged an “Executive Order barring the federal

government from contracting with employers who hire replacements during a lawful strike” as

ultra vires. Id. at 1324. The D.C. Circuit held that the President may not use an Executive Order

to “insulate the entire executive branch from judicial review.” Id. at 1328. Rather, it is “well

established that ‘[r]eview of the legality of Presidential action can ordinarily be obtained in a suit

seeking to enjoin the officers who attempt to enforce the President's directive.’” Id. (quoting

Franklin v. Massachusetts, 505 U.S. 788, 815 (1992) (Scalia, J., concurring in part and

concurring in the judgment)). If the President issues an illegal command, “courts have [the]

Page 37 of 42 power to compel subordinate executive officials to disobey” that command. Id. (quoting Soucie

v. David, 448 F.2d 1067, 1072 n.12 (D.C. Cir. 1971)).

Finally, States allege that conduct by Musk and DOGE exceeds the authority granted by

the temporary organization statute, 5 U.S.C. § 3161, and that no other statute authorizes

Defendants’ actions. Compl. ¶¶ 261–72. The Executive Branch is subject to limitations imposed

by Congress and the Constitution. The Constitution allocates power across the three branches—

Legislative, Executive, and Judicial—but “requires cooperation among the three branches in

specified areas.” Aurelius Inv., 140 S.Ct. at 1656. The President’s power to act, and in turn

executive power wielded by officers on behalf of the President, “must stem either from an act of

Congress or from the Constitution itself.” Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S.

579, 585 (1952). When the President “acts pursuant to the powers invested exclusively in him

by the Constitution,” his authority is “conclusive and preclusive”—neither Congress nor the

courts may interfere with the President’s discretion. Trump, 144 S.Ct. at 2327 (citations

omitted). If the Constitution does not grant the President power to act, his authority is limited to

an express or implied authorization from Congress. See Youngstown, 343 U.S. at 588–89; id. at

635–38 (J. Jackson, concurring). And, “[i]f the President claims authority to act” but lacks

authority from Congress or the Constitution, “the courts may say so.” Trump, 144 S.Ct. at 2327.

“[T]he doctrine of separation of powers was established in the Constitution not to promote

governmental efficiency but to prevent arbitrary power.” Nat’l Treasury Emps. Union v. Nixon,

492 F.2d 587, 611 (D.C. Cir. 1974).

Congress alone has the power to create offices and departments. Maurice, 26 F. Cas. at

1213; Myers, 272 U.S. at 130; Trump, 144 S.Ct. at 2349 (Thomas, J., concurring) (“By keeping

the ability to create offices out of the President's hands, the Founders ensured that no President

Page 38 of 42 could unilaterally create an army of officer positions to then fill with his supporters.”). “The

President, as to the construction of his own branch of government, can only try to work his will

through the legislative process.” Seila Law, 140 S.Ct. at 2228 (Kagan, J., concurring in part and

dissenting in part). The only statutory basis for the DOGE Executive Order is the temporary

organization statute, 5 U.S.C. § 3161. That statute contains no substantive delegation of powers.

It merely permits the creation of “a commission, committee, board, or other organization” for

“the purpose of performing a specific study or other project.” Id. § 3161(a). And while it may

authorize the creation of an organization, that organization may only wield executive power

pursuant to statutory or Constitutional authority. See Youngstown, 343 U.S. at 585. Defendants

do not claim that Musk or DOGE’s conduct falls under the President’s express constitutional

powers, and the only comparator they provide—an Executive Order establishing a temporary

organization to facilitate the reconstruction of Iraq, MTD at 33–34—confirms that the DOGE

Executive Order lacks statutory authority. In the comparator Executive Order, President Bush

established a temporary organization known as the “Iraq Transition Assistance Office” pursuant

to the temporary organization statute, 5 U.S.C. § 3161, and the management of foreign affairs

statute, 22 U.S.C. § 2656. Exec. Order No. 13,431, 72 Fed. Reg. 26,709 (May 8, 2007). The

latter statute authorizes the President to assign “matters respecting foreign affairs” to the

Department of State and Secretary of State. 22 U.S.C. § 2656. The DOGE Executive Order

lacks a comparable substantive statutory grant.

Youngstown is particularly informative here. As in Youngstown, the DOGE Executive

Order “does not direct that a congressional policy be executed in a manner prescribed by

Congress—it directs that a presidential policy be executed in a manner prescribed by the

President.” 343 U.S. at 588; DOGE EO § 3(b) (DOGE “dedicated to advancing the President’s

Page 39 of 42 18-month DOGE agenda”). “The Constitution did not subject this law-making power of

Congress to presidential . . . control.” 343 U.S. at 589. The States adequately allege that Musk

and DOGE’s conduct is “unauthorized by any law” and, in doing so, state an ultra vires claim.

McAnnulty, 187 U.S. at 110; see also id. at 108, 110 (“[A]cts of all [a government department’s]

officers must be justified by some law[.] . . . Otherwise, the individual is left to the absolutely

uncontrolled and arbitrary action of a public and administrative officer.”).

Even if the temporary organization statute granted substantive authority to the subsidiary

DOGE Service Temporary Organization, it does not authorize or grant any powers to the

permanent, overarching DOGE organization. The DOGE Executive Order “established in the

Executive Office of the President” the principal DOGE entity, which it defined using the

acronym “USDS”. DOGE EO § 3(a). Defendants concede that the principal DOGE

organization is not a temporary organization. MTD at 31. Within DOGE, President Trump

created the DOGE Service Temporary Organization pursuant to the temporary organization

statute, with a termination date in July 2026. DOGE EO § 3(b). He “dedicated” the DOGE

Service Temporary Organization “to advancing the President’s 18-month DOGE agenda,” but

did not instruct the subsidiary organization to take any specific actions. Id. Rather, President

Trump instructed the principal DOGE entity, which is not a temporary organization or authorized

by any other statute, to consult with agency heads to establish DOGE teams at each agency and

to gain “full and prompt access to all unclassified agency records.” Id. § 4(b) (Agencies shall

“ensure USDS has full and prompt access to all unclassified agency records, software systems,

and IT systems.”); id. § 3(c) (“In consultation with USDS,” agencies “shall establish . . . a

DOGE Team . . .”). The subsequent DOGE related Executive Orders refer to the principal

DOGE organization and do not mention the DOGE Service Temporary Organization. See Exec.

Page 40 of 42 Order No. 14,170 §§ 1–4; Exec. Order No. 14,210 § 2(c); Exec. Order No. 14,218 §§ 1, 2(b);

Exec. Order No. 14,219 §§ 2, 4; Exec. Order No. 14,222 §§ 2–3. Because the DOGE Executive

Order provides no statutory or Constitutional basis for establishing the principal DOGE entity,

States state a claim for ultra vires conduct, and the court will therefore deny Defendants’ motion

to dismiss Count II.

D. President Trump in his Official Capacity

Defendants seek to dismiss President Trump as a defendant because the court may not

enjoin the President in the performance of his official duties. MTD at 35–37; id. at 36 & n.7

(collecting cases). The court agrees. See, e.g., Mississippi v. Johnson, 71 U.S. (4 Wall.) 475,

501 (1866) (holding Court had “no jurisdiction of a bill to enjoin the President in the

performance of his official duties”). States concede the court may not enjoin President Trump

but argue that a declaratory judgment may issue against the President under National Treasury

Employees Union v. Nixon, 492 F.2d 587 (D.C. Cir. 1974). Opp’n at 37–38. That case

recognized a narrow circumstance in which a court may issue a declaratory judgment

recognizing the President’s constitutional duty to perform a “ministerial duty.” 492 F.2d at 608.

For declaratory judgment to be appropriate, the duty cannot be discretionary and must be

“simple, definite[,] . . . arising under conditions admitted or proved to exist, and imposed by

law.” Id. at 608–09. The President’s power to select and nominate officers under the

Appointments Clause is highly discretionary and assigned squarely to the President. Declaratory

judgment against the President, a “coequal branch of government,” pertaining to the Executive’s

exclusive powers under the Constitution “at best creates an unseemly appearance of

constitutional tension and at worst risks a violation of the constitutional separation of powers.”

Swan v. Clinton, 100 F.3d 973, 978 (D.C. Cir. 1996). Consequently, the court will dismiss

President Trump as a defendant. Page 41 of 42 IV. CONCLUSION

For the reasons stated above, the court will DENY Defendants’ motion to dismiss Counts

I and II, but GRANT Defendants’ motion to dismiss President Trump.

Date: May 27, 2025

Tanya S. Chutkan TANYA S. CHUTKAN United States District Judge

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