A group of states, led by New Mexico, sued Elon Musk and DOGE last week, arguing that Musk's position violates the Appointments Clause and that DOGE is acting without statutory authority. The states moved for a temporary restraining order. The court heard arguments today, and it reportedly did not go so well for the plaintiffs. The ruling should come soon. (The full docket is here.)

The plaintiff-states argued that Musk is exercising officer-like authority, without an officer appointment under the Appointments Clause. According to the motion for a TRO:

Mr. Musk's de facto position–i.e., the position commensurate with the authority the evidence strongly suggests he is in fact exercising–is subject to the Appointments Clause, because he is acting with at least officer-level authority, in a continuing position. Without Congressional creation of that position and Senate confirmation, his actions violate the Appointments Clause for two reasons: first, his authority is at least as broad as a principal officer's, because he reports to no one but the President; therefore, his position requires Congressional creation and Senate confirmation. Second, even if he could be considered an "inferior officer," his position was not created by Congress under the Exceptions Clause and he has not been confirmed by the Senate.

They also argued that DOGE is acting without statutory authority:

Mr. Musk and DOGE's actions are not authorized by statute. The temporary organization statute, 5 U.S.C. Sec. 3161, cited in the President's Executive Order creating DOGE, does not provide Mr. Musk or DOGE with the authority it purports to exercise.

In response to a court question at today's hearing, Musk filed a notice arguing that he's just a presidential advisor, not an officer with any legal authority (and therefore not subject to the Appointments Clause), and that DOGE isn't ordering any actions on the part of Executive Branch agencies (and therefore can't be acting outside any statutory authority):

Elon Musk "has no actual or formal authority to make government decisions himself"–including personnel decisions at individual agencies. He is an employee of the White House Office (not USDS or the U.S. DOGE Service Temporary Organization); and he only has the ability to advise the President, or communicate the President's directives, like other senior White House officials. Moreover, Defendants are not aware of any source of legal authority granting USDS or the U.S. DOGE Service Temporary Organization the power to order personnel actions at any of the agencies listed above. Neither the President's Executive Orders regarding "DOGE" contemplate–much less furnish–such authority.