The Trump administration’s own lawyers say that they don’t know who is in charge of the U.S. DOGE Service—or whether an administrator for the organization even exists.
Judge Kollar-Kotelly’s grilling of [Justice Department attorney, Bradley Humphreys] has received significant attention, in part because the lack of information stands in stark contrast to Musk’s claims that DOGE is “maximally transparent.” But the questions posed by the judge also suggest that, as the New York Times puts it, “there could be problems looming for Mr. Musk’s organization.” Specifically, the judge raised doubts about the constitutionality of DOGE’s structure and operations under the Appointments Clause.
[B]elow is an excerpt from the exorbitantly detailed notes I took during the exchange between Judge Kollar-Kotelly and Humphreys.]
JUDGE KOLLAR-KOTELLY …Do you know where in the federal bureaucracy DOGE was located on Jan. 19? Was it a component of OMB?
HUMPHREYS: I do believe that’s correct, Your Honor.
JUDGE KOLLAR-KOTELLY: Okay, and the administrator of USDS [DOGE] at that point was a Schedule C employee?
HUMPHREYS: I don’t know the answer, Your Honor.
JUDGE KOLLAR-KOTELLY: Do you know anything about who was in charge when it was in OMB?
HUMPHREYS: No, Your Honor.
JUDGE KOLLAR-KOTELLY: On Feb. 17, the Justice Department represented to Judge Tanya Chutkan that Mr. Musk is not the administrator of DOGE. Is that correct?
HUMPHREYS: That is correct.
[The judge then lists a number of statements from White House officials and Mr. Musk regarding the latter’s role in DOGE].
JUDGE KOLLAR-KOTELLY: So, if I have to decide at some point what role Mr. Musk has in DOGE, what representation do I provide? He’s not the administrator. He obviously has a role…What is his position? He’s not the administrator and he’s not an employee, as I understand it, of DOGE. But he seems to be speaking on behalf of DOGE. So, can you tell me what his role is?
HUMPHREYS: I don’t believe that issue is presented in the pleadings. But with that caveat, my understanding is that Mr. Musk is a close advisor to the president. However, for our purposes, the inquiry flows from the president to the Secretary of the Treasury, who then oversees Mr. Krause through the [Treasury] chief of staff.
JUDGE KOLLAR-KOTELLY: But where is Mr. Musk in all this?
HUMPHREYS: I don’t have any further information.
JUDGE KOLLAR-KOTELLY: Okay, so, is there an administrator of DOGE at the present time?
HUMPHREYS: I don’t know the answer to that.
JUDGE KOLLAR-KOTELLY: You don’t know whether there is an administrator, is that what you’re saying?
HUMPHREYS: I’m saying I don’t know.
JUDGE KOLLAR-KOTELLY [directing her attention to Humphreys’ co-counsel]: Okay, everybody at the table speak up over there if you know anything else.
[Silence.]
JUDGE KOLLAR-KOTELLY: I mean, I have to say, the government represented to a judge in the Eastern District of Virginia that there is, quote, an “acting USDS administrator.” And obviously the executive order creating DOGE says there’s a USDS [DOGE] administrator. So isn’t there some problem, if there’s no administrator, as to how DOGE functions? Who supervises them, how do they come up with ideas? I mean, if you’ve got employees that are with DOGE, that are working with Treasury, who’s telling them what to do, if there’s no administrator?
JUDGE KOLLAR-KOTELLY: The executive order states that agency heads shall select DOGE team members in consultation with the DOGE administrator. It seems there’s no administrator to consult with. Who did the Treasury Secretary consult with when he hired Mr. Krause? And the executive order states the DOGE administrator shall commence a software modernization initiative. Has the initiative been commenced? By whom? If there’s no administrator, who did it?
Based on the record before me, I have some concerns about the constitutionality, frankly, of DOGE’s structure and operations.
DOGE seems to be taking certain actions, like entering into the payment process engagement plan, which appears to bind a federal agency, the Treasury Department. The Appointments Clause of the Constitution requires that principal officers be nominated by the president and confirmed by the Senate. Employees and inferior officers need to be supervised by principal officers to comply with the Appointments Clause.
I want to ask the few questions that I have about the status of people in DOGE. It appears to me that the people within DOGE could be exercising authority as officers of the United States without complying with the Appointments Clause. I think that’s something that the court should certainly note may be a problem…Maybe it’s not, but on this record we certainly don’t have enough information…
HUMPHREYS: I believe I understand the concern, though not how it relates to these claims.
JUDGE KOLLAR-KOTELLY: Well, if they’re acting unconstitutionally, wouldn’t that be irreparable harm?
HUMPHREYS: No, for many reasons. We can discuss these particular claims…
JUDGE KOLLAR-KOTELLY: Well, wouldn’t it be ultra vires? If they’re taking direction or doing things where they do not have this authority under the Appointments Clause?
Add new comment