The Fourth Circuit today stayed a district court preliminary injunction that ordered Elon Musk and DOGE to stop dismantling USAID. The ruling means that Musk and DOGE may continue with whatever actions they took, and are taking, to destroy the agency.
The case, J. Does 1-26 v. Musk, arose when USAID employees sued Musk and DOGE to halt their dismantling of the agency. The plaintiffs argued that Musk's actions violated the Appointments Clause, because Musk acted as the Administrator of DOGE without being properly appointed to that job. They argued that Musk and DOGE violated the separation of powers by dismantling the agency contrary to federal law that established it and funded it.
The district court issued a preliminary injunction halting Musk and DOGE from taking certain further actions to dismantle the agency.
Today, the Fourth Circuit stayed that injunction pending appeal.
The court held that the defendants were likely to prevail on the merits. It said that current evidence "creates a strong likelihood that [Musk] functioned as an advisor to the President . . . not as an Officer who required constitutional appointment," because his decisions were ratified by agency officers and because the district court found that he was "acting without authority." The court also said that current evidence doesn't support that Musk and DOGE were the ones who dismantled USAID; instead, agency officers authorized, or may have authorized, any ultimate decisions.
In other words, the plaintiffs failed to name the right defendants:
The district court identified USAID as authorizing and ratifying all actions complained of except closing the prior USAID headquarters and taking down its website. Yet, neither the Executive nor USAID is named here. Confined to the two allegedly unlawful actions identified by the district court, there is no strong likelihood of success on the merits of a separation of powers claim against a defendant who the district court found to be acting without authority and who the government claims is not an Officer of the United States.
Judge Gregory concurred for the same reason, but had some sharp words about executive unilateral dismantling of a congressionally-created and funded administrative agency.
The court held that other stay factors also favored the defendants.
The court expressly held open the possibility that the plaintiffs might "develop evidence of unconstitutional conduct as the case progresses." But for now, "the record does not support the district court's finding of a likelihood of constitutional violations.