Judge questions constitutionality of Musk’s DOGE operation

A federal judge in Washington said Monday that the way the Trump administration set up and has been running Elon Musk’s so-called Department of Government Efficiency may violate the Constitution.

The skepticism expressed by the judge, Colleen Kollar-Kotelly, did not come as part of a binding ruling, but it suggested that there could be problems looming for Musk’s organization, which is also known as the U.S. DOGE Service.

“Based on the limited record I have before me, I have some concerns about the constitutionality of USDS’ structure and operations,” Kollar-Kotelly said at a hearing in U.S. District Court in Washington. She expressed particular concern that it violated the appointments clause of the Constitution, which requires leaders of federal agencies to be nominated by the president and confirmed by the Senate. Musk was neither nominated nor confirmed.

Kollar-Kotelly’s remarks about the Musk operation were part of a civil case brought by two labor unions and a group representing millions of American retirees. They are seeking an injunction that would bar the Musk team from accessing sensitive records maintained by the Treasury Department.

Last week, a federal judge in Manhattan, entertaining a similar legal issue, barred Musk’s cost-cutting group from regaining access to the Treasury Department’s payment and data systems until the conclusion of a separate lawsuit claiming that its access to the records is unlawful.

The suits are among several challenging Musk’s wide-ranging efforts to scrutinize government spending and slash the federal workforce, which have spawned dueling directives from Musk and the heads of various federal agencies, as well as termination notices that were quickly rescinded.

Some of the suits have directly questioned the constitutionality of the Musk operation. But Kollar-Kotelly was the first federal judge handling one of the cases to hint at how she might rule on that critical issue.

The judge also indicated that she had serious concerns about how the organization is being run. Her concerns emerged from unresolved questions about who is in charge of the DOGE Service and what role Musk plays in its operations.

At the hearing, Kollar-Kotelly repeatedly asked a lawyer for the government, Bradley Humphreys, to identify the service’s administrator. He was unable to answer her.

Kollar-Kotelly also asked Humphreys what position Musk holds. Humphreys responded that Musk was not the DOGE Service’s administrator, or even an employee of the organization, echoing what a White House official had declared in a separate case challenging the powers of the group.

When the judge pressed him on what Musk’s job actually was, Humphreys said, “I don’t have any information beyond he’s a close adviser to the president.”

That exchange seemed to irk Kollar-Kotelly, who signaled her skepticism about the organization’s structure and powers.

“It does seem to me if you have people that are not authorized to carry out some of these functions that they’re carrying out that does raise an issue,” she said. “I would hope that by now we would know who is the administrator, who is the acting administrator and what authority do they have?”

This article originally appeared in The New York Times.

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