The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
When The Resistance Tail Catches The DOGE
The Resistance sues a non-existent entity based on an irrelevant statute.
Mere moments after President Trump his oath, a group of progressive public interest groups filed suit to challenge DOGE. Of course, DOGE had not yet been created. It wasn't even clear what DOGE was. And who has standing to challenge a non-existent entity? But Resistance demands being the first to file.
The complaints assumed that DOGE would be some sort of advisory committee outside the aegis of the federal government. These committees may be subject to the Federal Advisory Committee Act (FACA). In 1993, a federal district court found that the President's Task Force on National Health Care Reform, chaired by Hillary Clinton violated FACA. However, the D.C. Circuit reversed that decision, finding that the task force was not subject to FACA. (This is a rare case where Judge Silberman reversed Judge Lamberth.)
But there's a problem for the Resistance. DOGE is not an advisory committee. It is not subject to FACA. The President's order explains that DOGE will be housed within the Executive Office of the President:
Sec. 3. DOGE Structure. (a) Reorganization and Renaming of the United States Digital Service. The United States Digital Service is hereby publicly renamed as the United States DOGE Service (USDS) and shall be established in the Executive Office of the President.
(b) Establishment of a Temporary Organization. There shall be a USDS Administrator established in the Executive Office of the President who shall report to the White House Chief of Staff. There is further established within USDS, in accordance with section 3161 of title 5, United States Code, a temporary organization known as "the U.S. DOGE Service Temporary Organization". The U.S. DOGE Service Temporary Organization shall be headed by the USDS Administrator and shall be dedicated to advancing the President's 18-month DOGE agenda. The U.S. DOGE Service Temporary Organization shall terminate on July 4, 2026. The termination of the U.S. DOGE Service Temporary Organization shall not be interpreted to imply the termination, attenuation, or amendment of any other authority or provision of this order.
(c) DOGE Teams. In consultation with USDS, each Agency Head shall establish within their respective Agencies a DOGE Team of at least four employees, which may include Special Government Employees, hired or assigned within thirty days of the date of this Order. Agency Heads shall select the DOGE Team members in consultation with the USDS Administrator. Each DOGE Team will typically include one DOGE Team Lead, one engineer, one human resources specialist, and one attorney. Agency Heads shall ensure that DOGE Team Leads coordinate their work with USDS and advise their respective Agency Heads on implementing the President's DOGE Agenda.
DOGE will be within the government, and be staffed by government employees. There may be "Special Government Employees," such as Elon Musk. But that is not a FACA issue.
How embarrassing for the Resistance. Will any of these groups explain to their donors how they sued a non-existent entity based on a completely irrelevant statute? I hope the Resistance takes it easy. It will be a long four years.
