The six justices comprising the far-right majority on the Supreme Court just radically endorsed a sweeping intrusion into the privacy of hundreds of millions of Americans by the Department of Government Efficiency or “DOGE,” without so much as the pretense of a justification.
One must seriously wonder what their endgame really is, because it’s not about upholding the law.
With the exception of a reference to the Treasury Department, the Constitution says nothing about federal agencies. Congress creates them pursuant to its Article I powers to legislate.
But Congress did not pass any legislation creating the Department of Government Efficiency. It was declared into existence by President Trump via executive order when he took office in January.
What’s more, for the real federal agencies that Congress actually creates, Article II of the Constitution mandates that their officers — the agency heads or “secretaries” — must be appointed with the advice and consent of the Senate. The outgoing “head” of DOGE, Elon Musk, was neither.
Congressionally created agency heads are also confined to the job descriptions established under a governing statute for each particular agency. For DOGE, Trump directed the actual federal agencies to create “DOGE Teams” to “coordinate their work” with Musk and to “advise their respective Agency Heads on implementing the President’s DOGE Agenda.” This kind of uber-power over agencies is constitutionally unprecedented.
The point of mandating Senate confirmation of agency heads is of course to enable elected representatives of the people to gather information about a candidate’s qualifications and possible disqualifying characteristics, such as conflicts of interest that would make it difficult or impossible for an officer to neutrally exercise the duties of their office. According to an April report from Senate Democrats, Musk and his companies faced upwards of $2.37 billion in legal liability stemming from 65 pending or potential federal investigations, regulations and litigation across 11 agencies relating to his companies — including Tesla, SpaceX and Neuralink.
White House Press Secretary Karoline Leavitt reported in February that Musk would simply “excuse himself” if a conflict of interest arose. That cynical strategy failed. In firing tens of thousands of federal employees, including over a dozen inspectors general, Musk managed to muck around with numerous agencies that regulate him — such as the Consumer Financial Protection Bureau, which is now nearly defunct, and the National Highway Traffic Safety Administration. This is grossly inappropriate self-dealing.
A lawsuit filed by the American Federation of State, County, and Municipal Employees complained that Musk’s DOGE team members were violating a slew of federal laws, including the Privacy Act, the Administrative Procedure Act, the Social Security Act, the Tax Revenue Act of 1976 and the Federal Information Security Modernization Act of 2014. The Privacy Act protects citizens’ sensitive data unless government access is “for a necessary and proper purpose” and mandates that “adequate safeguards” be in place “to prevent misuses of this information.” Information cannot even be shared between agencies without the consent of the people whose personal data is implicated.
In April, a federal judge in Maryland agreed that Trump’s unfettered data-collection effort was legally dubious, finding that the pretense that it was necessary to detect “fraud, waste and abuse” was not enough to overcome the myriad statutory protections for individual Americans’ private data. The judge issued an order temporarily enjoining DOGE from harvesting unlimited amounts of information from the Social Security Administration — which may include birth dates, addresses, Social Security numbers, drivers’ license numbers, tax return information, bank account information, credit card numbers, employment and wage histories, citizenship and immigration records, and detailed medical records.
Trump’s executive order requires agencies to give the DOGE teams “full and prompt access to all unclassified agency records, software systems, and IT systems.” The lawsuit is thus a standoff between Trump’s roving DOGE snoops and the rule of law itself.
In a terse order issued without full briefing or oral argument, Chief Justice Roberts — on behalf of the six conservative justices in the majority — sided with DOGE, reversing the district court’s temporary injunction and allowing Musk’s minions to access a treasure trove of personal data while the district court’s decision is on appeal.
Normally, when a district court issues an order, that order holds while it is appealed (absent some finding of exceptional circumstances). In this case, DOGE was positioned to possibly get what it wants down the line, either from the Court of Appeals for the Fourth Circuit or from the Supreme Court in due course, while the case makes its way through the system. In the meantime, the status quo of keeping statutory protections in place for regular Americans would stand — just like it has under every president before Trump.
Instead, Roberts found that it is DOGE — not the American people — that would irreparably suffer if the legal questions are given time to percolate on appeal. DOGE gets the goods immediately. If the plaintiffs manage to secure a ruling affirming the district court on appeal many months from now, thus undoing the Supreme Court’s stay, the damage will already have been done. The data is already breached. There is no longer a remedy.
To justify his decision, Roberts properly cited the four-part test for granting a temporary stay of an injunction: Trump must show that he will likely win under the various federal laws that otherwise protect the data, that he’d be irreparably damaged without a stay, that the stay will not “substantially injure” other parties (like Americans who want their personal data to remain secure) and that a stay is in the broader public interest.
The wrinkle is that Roberts didn’t bother to actually analyze any of these factors. He just summarily concluded they were satisfied. Too bad for the plaintiffs — and too bad for the American people, whose personal data is now in the hands of DOGE and anyone else it cares to share it with. Roberts simply reasoned that the DOGE team must get access to the records “for those members to do their work.”
In a dissenting opinion, Justice Ketanji Brown Jackson noted that “the ‘urgency’ underlying the government’s stay application is the mere fact that it cannot be bothered to wait for the litigation process to play out before proceeding as it wishes.” The majority nonetheless is “jettisoning careful judicial decision-making and creating grave privacy risks for millions of Americans in the process.”
Since the landmark 1803 decision Marbury v. Madison, the Supreme Court’s job has included holding the other branches of government accountable to federal statutes. By baldly eschewing its constitutional role while hiding behind a veneer of legitimacy, today’s conservative majority is much like DOGE, the entity it put above the law: a fake.
Kimberly Wehle is author of the book “Pardon Power: How the Pardon System Works — and Why.”
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