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President-elect Donald Trump listens to Elon Musk as he arrives to watch SpaceX’s mega rocket Starship lift off for a test flight from Starbase in Boca Chica, Texas, Nov. 19, 2024 (Brandon Bell/Pool via AP, File).
The Trump administration on Tuesday asked for — and quickly received — permission to continue with controversial plans over the restructuring of the U.S. Agency for International Development (USAID). But that relief has a quick spoliation date.
In a 16-page filing with the Court of Appeals for the Fourth Circuit, the U.S. Department of Justice requested emergency relief in the form of an immediate administrative stay — as well as a broader stay pending appeal of the underlying case — that would overturn the preliminary injunction issued by a Maryland district court on March 18.
The crux of the matter is a dispute over the authority granted to DOGE head and Tesla CEO Elon Musk and what formal role, if any, he occupies within the current Trump administration.
The plaintiffs claim Musk possesses an inordinate amount of power over oft-expressed efforts to shrink the federal workforce and reduce the size of the federal government, with an eye toward achieving substantial decreases in the federal budget. To that end, Musk’s role is in violation of the U.S. Constitution’s Appointments Clause, the plaintiffs argue.
The government has thoroughly rejected such constitutional arguments, which have been litigated in a variety of Musk- and DOGE-focused cases, out of hand.
In the present case, the Trump administration says the plaintiffs’ arguments have resulted in an injunction that purports to stop the “dismantling” of the agency but, in real terms, “will stop USAID from functioning.”
In his 68-page memorandum opinion, U.S. District Judge Theodore Chuang, a Barack Obama appointee, ordered Musk and DOGE to cease any additional cuts at USAID without the “express authorization” of an authorized agency official. The judge also mused that Musk and DOGE’s extant efforts to diminish the agency’s capacity constitute a “likely unconstitutional shutdown.”
The order further directed USAID to restore access to the agency’s computer systems for employees, including more than 1,000 workers placed on leave since February, allegedly at Musk’s direction.
The government insists Musk was simply one of many people who helped to effectuate President Donald Trump’s broader cost-cutting aims. This, the motion argues, does not meet the tests necessary to establish an Appointments Clause violation.
“Plaintiffs underscore the error of their position when they assert that Musk has more power ‘than a typical presidential adviser,’” the government argues. “Presidents have broad discretion to select and work with advisers. And some presidential advisers can be, in a colloquial and practical sense, extremely powerful.”
Under tests used to make such determinations, courts consider whether a person is an “officer of the United States” — and therefore must be appointed and confirmed by the U.S. Senate. One test asks whether the person in question exercises “significant authority pursuant to the laws of the United States.” Another test asks whether a person occupies “a continuing position established by law.”
Neither test is met here, the DOJ says.
In the application for a stay, government lawyers argue that the district court’s analysis actually proves their points.
“The district court’s acknowledgement that ‘Musk has no formal legal authority to make the decisions at issue’ should be dispositive,” the motion reads. “Plaintiffs do not seriously claim that Musk has any such ‘authority.’ Instead, they describe ways in which Musk might have influenced the government’s ultimate actions, suggesting that his influence may, at times, have been decisive. Plaintiffs tip their hand when they describe a range of USAID actions but decline to state that Musk undertook those actions or had the authority to command those who did.”
And, the government says, the plaintiffs themselves have not made convincing arguments in line with the relevant tests.
“Plaintiffs also allege that at other agencies (not at issue here), Musk ‘intimidated’ officials who may themselves have had authority to act,” the stay application goes on. “Even were that true, it would not mean that Musk can issue binding decisions or otherwise make any significant government decision without someone else’s authorization. That means he holds no office ‘established by law;’ and is not an officer.”
The motion goes on, at length:
Even as to the two discrete actions that the district court believed Musk had himself taken — shutting down USAID’s headquarters and website — plaintiffs seem to admit that Musk was just one of a set of “individuals known to be associated” with those acts. The conclusion that Musk took them is unsubstantiated, and the absence of evidence does not warrant drawing inferences abut Musk’s role. Regardless, plaintiffs do not dispute the district court’s own statement that Musk lacked the “authority” to make these decisions for the government. And that is all that matters.
While the merits of the appeal were not remarked upon, the Fourth Circuit issued a terse stay of the Chuang injunction almost immediately after the Trump administration made the request.
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That stay, however, is not long for this earth; the pause will only last until “the end of business” on March 27, according to the 4th Circuit Court of Appeals. The import of that almost-3-day pause is unclear. The appellate court only issued an administrative, or emergency, stay in the case. On Thursday, the three-judge panel in charge of the appeal could choose to issue a longer stay pending appeal or allow the injunction to take effect.
