Trump/Musk Administration Faces First Pushback from the Courts

Lawsuits to restrain the lawless.

WITH ELON MUSK RUNNING THE EXECUTIVE BRANCH alongside Donald Trump and a sycophantic Republican party controlling Congress, it has sometimes seemed that there is no one left to stop the ravaging of the federal government that began minutes after Trump’s inauguration. But there is a way to slow things down: litigation.

Thursday brought news of a trio of rulings that may somewhat slow the Trump/Musk takeover of our constitutional order. They’re an important reminder that the federal courts, at least, are still functioning and capable of standing up for the Constitution and the rule of law.

The first of these rulings was filed in federal court in Washington, D.C. Three unions representing active and retired federal employees sued Trump’s treasury secretary, Scott Bessent, for allowing Musk full access to the personal and financial information of millions of Americans. The plaintiffs managed to force the Trump administration to stipulate that only two people from Musk’s DOGE team—Tom Krause and Marko Elez—can access payment records. Krause is CEO of Citrix and related tech companies under the Cloud Software Group umbrella. Elez is a 25-five-year-old programmer. Both are purportedly “special government employees” from DOGE detailed to the Treasury—or were anyway: later in the day on Thursday, Elez resigned from DOGE after the Wall Street Journal broke the news of his history of racist posts on social media.

In the stipulated order, which was signed by U.S. District Judge Colleen Kollar-Kotelly, the Trump administration also agreed that the DOGE staff’s access will be “read only”—meaning Musk’s people cannot manipulate any of the records until the judge rules on the plaintiffs’ request for a preliminary injunction. A hearing is set for February 24.

The lawsuit alleges that Musk’s invasion of the financial transactions of the federal government spans income taxes and refunds, government services, back pay loans, Social Security retirement and disability payments, veterans’ benefits, and wages for federal workers—along with the associated names, Social Security numbers, birth dates and places, home addresses, telephone numbers, email addresses, and bank account information maintained in the Treasury Department records. It’s an enormous amount of private information. If you’ve ever received a tax refund by electronic transfer, Musk’s team has had access to your bank account. There’s no telling what’s been done with that information from the time Bessent gave Musk access until the order was signed on Thursday.

The plaintiffs allege that Musk’s penetration of Treasury’s financial database violates the Administrative Procedure Act or “APA” (which requires agencies to make decisions carefully, deliberately, based on a factual record and in compliance with the law); the Privacy Act (which protects individual records unless the person involved consents to their disclosure or Congress makes an exception); and the Internal Revenue Code (which prohibits the disclosure of tax return information to private individuals like Musk absent compliance with very detailed procedural systems).

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THE SECOND CASE, filed by three government unions in federal court in Massachusetts, challenges Musk’s “Fork in the Road” memo that went out to 800,000 federal workers via the Office of Personnel Management on January 28, 2025. It purports to offer a “deferred resignation program,” giving employees a little over a week—that is, until February 6—to either resign and supposedly retain pay and benefits until September 30 or risk losing their jobs through downsizing or other restructurings.

U.S. District Judge George A. O’Toole Jr. issued an order barring the Trump administration from imposing the Friday midnight deadline until he holds a hearing on Monday.

The suit again cites the APA, claiming that the memo was haphazard and full of conflicting and incomplete information, and also alleges that it violates the Constitution’s Appropriations Clause and the Antideficiency Act to the extent that it promises payment of wages before Congress has appropriated the money. (The current funding, which is pursuant to a continuing resolution, expires in March.) The complaint also charges that by promising workers that accepting the buyout won’t hurt their chances of getting alternative employment, the email violates federal ethics regulations limiting outside employment for certain federal employees without prior approval or compliance with other criteria.

The “Fork in the Road” email does not appear to bind the federal government to anything, so the plaintiffs further argue that employees are grossly unprotected. Given that some agencies need to staff up, what the administration is really trying to do, the unions claim, is “reduce the size of the government . . . so that they can replace career federal employees with individuals ideologically aligned with the Administration.”

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THIRD, TWO FEDERAL JUDGES, one in Maryland and the other in Washington state, issue nationwide injunctions barring Trump’s executive order attempting to undo, in one of the judge’s words, the Fourteenth Amendment’s “fundamental constitutional right” to birthright citizenship. Shockingly, Drew Ensign, a deputy assistant attorney general, argued on behalf of the Justice Department that a reading of the Fourteenth Amendment that does not condition citizenship-by-birth on “allegiance [to] the country” is “demonstrably and unequivocally incorrect.” It was Ensign’s argument that was effectively rejected in 1898, however, in a settled case called United States v. Wong Kim Ark.

The Trump-Musk administration understands that the tsunami of illegalities lurking in these and countless other executive actions thus far makes it difficult—if not impossible—to litigate them all in a reasonable timeframe. It also understands that, when some of these cases inevitably make their way to the U.S. Supreme Court, the Court’s Trump-friendly right-wing justices will side with the president regardless of what the Constitution says—as they did in manufacturing constitutional criminal immunity for him in Trump v. U.S. last summer.

Still, as millions of Americans are gripped with feelings of fear and helplessness while this unprecedented takeover of our institutions unfolds, it’s comforting to know that one branch—for now—still cares about the rule of law.