Every six hours or so, it seems, some federal judge blocks or unblocks or reblocks some action taken by Elon Musk, DOGE, and the Trump administration: mass firings of government employees, billions of dollars in frozen funding, near-dissolution of an entire government agency, targeted dismissals of departmental leaders and internal watchdogs, emails demanding that federal workers list five accomplishments or else risk either “resignation,” being “semi-fired,” or nothing at all, depending on the day.
Whenever one judge greenlights some DOGE gambit, another court moments later slaps a temporary pause on some other cost-cutting measure. Don’t worry; if you’re confused, that just means you’re paying attention.
How, then, can we understand these dozens of legal disputes as they play out across our federal courts? There’s no magic decoder ring here, no unifying field theory that explains or predicts the decisions as some coherent whole. But it’s not total chaos. (Not in the courts, at least; the executive branch is a tad disheveled at the moment.) We can largely understand the judicial rulings we’ve seen so far, and those that lie ahead, by applying three basic principles.
1.
Technicalities matter.
Eyes glaze when we talk about legalistic formalities like “standing” (does the plaintiff have a dog in the fight?) or “jurisdiction” (can this court hear this case now?). But technicalities can turn outcomes, with massive consequences. For example, many of Trump’s attempts to challenge the 2020 election failed because the plaintiffs lacked standing — meaning they had no direct, tangible stake in the matter. And the abortion medication mifepristone remains widely available because the Supreme Court in 2023 rejected a challenge by anti-abortion medical associations based on lack of standing.
Similarly, some legal challenges to Musk and DOGE have failed because of technical (but fatal) defects. One federal judge, John Bates (a George W. Bush appointee), noted that “the Court harbors concerns about defendants’ alleged conduct” — but temporarily rejected a challenge by labor unions seeking to deny DOGE access to sensitive data because the plaintiffs lacked standing. (A labor union is no substitute for an aggrieved employee and is too far removed from the dispute, the judge found.) Another federal judge in Washington, D.C., the Obama-nominated Christopher Cooper, declined to temporarily block DOGE from firing probationary employees because the law requires certain federal workers first to contest adverse employment actions through administrative hearings. Thus, the judge found, the federal courts lacked jurisdiction to hear the case. Keep these threshold questions in mind as we move ahead. The bar is low, but if challengers can’t clear it, they’re cooked.
2.
It’s not easy being the plaintiff.
To this point, virtually all the cases filed against Musk and DOGE have sought emergency relief — typically a “temporary restraining order” from a court that somebody must stop doing something. But plaintiffs in these cases bear a heavy burden. They must show, even before the case has gotten into fact-specific discovery, that if the disputed action is not blocked, they will suffer “irreparable harm.”
It’s an uphill climb. Two Obama-nominated D.C. federal judges — Randy Moss (not the wide receiver) and Tanya Chutkan (the one and same who presided over the Trump January 6 prosecution, plainly no fan of the president) — rejected challenges to DOGE actions because the plaintiffs could not meet this requirement. Judge Chutkan stressed that the party seeking the “extraordinary” remedy of a restraining order must show some injury that is “both certain and great, actual and not theoretical, beyond remediation, and of such imminence that there is a clear and present need for equitable relief.”
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Despite these setbacks, the majority of challenges to Musk and DOGE have met with early success. We’ve seen judges across the country temporarily block the Trump administration from accessing private data, withholding federal funding, and firing certain executive branch employees. But these wins are temporary; it’s been only 46 days since Trump took office, after all. (I know.) The larger disputes on the merits still lie ahead, and they raise fundamental questions that could shift the foundations of our government.
Which brings us to our third and final principle:
3.
These cases are ultimately about balance of powers.
Take, for example, Trump’s firing of 17 inspectors general. Some have sued because, under a law passed by Congress in 2022, the president must first provide 30 days’ notice to Congress and a “substantive rationale” for any such termination. Trump characteristically skipped the formalities and just straight-up canned them — no notice provided, no reasons given. Similarly, Trump fired Hampton Dellinger, an official in charge of a whistleblower agency, for no particular reason other than he wanted the guy gone. But a law provides that that official can be fired only for performance-related issues.
These might seem like easy cases at first glance. “The law” — actual statutes passed by Congress — says the president must do certain things before he can fire certain employees, and the president did not do those things. Hence the president broke “the law” and the employees should win — right?
Now we’ve come to the crux. The Trump administration maintains broadly that these laws are unconstitutional incursions on the executive branch by Congress and therefore violate separation-of-powers principles. All due respect to the esteemed gentlemen and women up on the Hill, but you simply can’t tell the president what to do inside the executive branch, the argument goes.
Indeed, conservatives — and we’ve got six of them on the Supreme Court at the moment — typically view executive-branch power expansively, and the president’s power within that branch as absolute, or near-absolute. Take, for example, last summer’s criminal-immunity ruling, in which the Court’s conservative majority granted the president astonishingly broad protections against prosecution based on a sweeping view of executive authority. Indeed, according to the “unitary executive theory” popularized in the Federalist Society and other conservative strongholds, the president not only leads the executive branch — he is the executive branch unto himself.
Put it this way. Which five justices do you see ruling that Congress can micromanage how the president handles his business within the executive branch that he was elected to lead? Jon Stewart — no conservative (and, yes, I will cite him for serious legal propositions when he cuts to the heart of the matter) — isn’t buying it. He mocked the technocratic argument against the president’s power to run his own branch of government: “I’m sorry, what? Oh, apparently, you can fire them [inspectors general], but you have to give them 30 days’ notice. Oh, so that’s what we’re upset about? ‘No! You can do it — but not in that font!’”
That’s not to suggest that all the legal challenges to Trump, Musk, and DOGE will fail. Congress (and plaintiffs) stand on stronger constitutional footing in the funding-freeze cases given the Constitution’s explicit grant of the power to tax and spend to the legislative branch. Indeed, on Wednesday, the Supreme Court rejected the Trump administration’s effort to withhold $2 billion in foreign aid that had already been allocated by Congress. The decision was largely procedural, but the practical result, as the four dissenting conservatives noted, is that the disputed money almost certainly will be paid out.
Ultimately, these lawsuits — the ones that clear our aforementioned technical barriers — are about far more than whether the president can fire one particular official or whether a certain pot of money must be spent. As they move through the courts, these cases will test and reshape our constitutional balance of powers. And while the Supreme Court won’t take up every matter, when it does, the smart money is on executive power. Prepare for the ground to shift.
This article will also appear in the free CAFE Brief newsletter. You can find more analysis of law and politics from Elie Honig, Preet Bharara, Joyce Vance, and other CAFE contributors at cafe.com.
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