It is possible that the last 72 hours have witnessed Elon Musk’s DOGE team overextend itself and grasp so far beyond its reach that it may well have sealed its own fate, one in which its very existence and every decision made to date is threatened. DOGE may be done, at least as litigation initiated by weekend events moves along.
After President Donald Trump encouraged Musk to “get more aggressive” on Saturday morning, Musk used the Office of Personnel Management (OPM) in such a way to unleash an email to 2.2 million federal employees, one that requested that the recipient list approximately five accomplishments from the previous week, and respond by Monday, February 24, at 11:59 p.m. ET. Musk tweeted that a failure to respond would be considered a resignation. The move was so rushed in appearance, so amateur in utility, and so useless in scope (Who was going to read 2.2 million emails?) that it sent shockwaves through the government that spilled out into social media, earning an immediate backlash, one so intense that it’s conceivable that the federal judiciary may shut the entire enterprise down as unconstitutional. After all, Musk’s email was haphazard such that some were sent to employees in the Judiciary branch, outside of Musk’s reach, including being sent to at least one federal judge. Emailing the federal judiciary isn’t just a mistake, it’s not just symbolic, it is also critical evidence.
There will be lawsuits filed on Monday against this very action. The most critical suits will be brought by organizations that can afford one of the power firms and their lawsuit will demand far more than protection from having to reply to Musk. These suits will ask the judge to shut DOGE down for good. To that end, the email and its fallout is powerful in what it says about itself – for lack of a better term. An email that asks a federal judge with a lifetime appointment to set out five accomplishments of the last week or be fired, is an email and action that is so arbitrary, so capricious, that it almost has to be ignored. It looks like a phishing attempt!
“This email looks exactly like all of the phishing email examples that federal employees see in training over and over again,” a Commerce Department employee told me. “I’m not responding to it.” https://t.co/rECIPeRqIl
— Daniel Lippman (@dlippman) February 22, 2025
And then there is the fact that many are asking whether Musk was playing “hide the ball” in the language used in the email itself and the contemporaneous tweet (And I might add, why was he tweeting a thing to begin with? If you are a professional and doing something professionally, you don’t tweet it out to all your fanboys.) An eyebrow raising point is made here by Stein:
Seriously, this seems like a major problem here. Elon's tweet said that if federal workers didn't respond it will be "taken as a resignation." But the actual emails don't say that. Which means that unless you saw the tweet you could be… screwed.
— Sam Stein (@samstein) February 22, 2025
Now, normally the judiciary gives the executive nearly complete autonomy in how to run the government – the principles of federalism in action. Judges are not the elected managers. To the extent that the judiciary will ever step in to protect someone’s rights (Outside the context of civil rights and minority classes), it will only do so to… Here it comes… to protect someone from government action that is clearly both arbitrary, and capricious, or as we used to say in law school, perhaps so arbitrary as to be capricious. If there was ever a government act that meets the test it would be an email that arbitrarily landed in a judge’s account and capriciously threatened his or her job.
Do not think for a second that the judges won’t be worried by what’s going on here. Musk and his cadre have access to the OPM servers, entire histories, including pay scales, bank accounts, all of it. If DOGE accidentally sends an email that should never have been sent, is there any guarantee that your paycheck and bank account are protected even though they should never be touched? Are they professional enough to ensure that their moves protect the finances of young families before they “increase efficiencies”? Or will they just “break it” and clean it up later? The judiciary will notice this and sense some vulnerability, asking how it got wrapped up in this. A good law firm is going to ask the federal judge overseeing their lawsuit to consider how anyone can trust DOGE going forward – or looking back – that it didn’t get just as much arbitrarily wrong, and in just as capricious a manner or result.
That firm is going to use this weekend as but one example of how crazed DOGE has been acting all along, how many rights have been vaporized, how much damage it has done to lives and to institutional knowledge and structure. The difference being, however, this week’s plaintiff will have far more compelling proof that DOGE cannot even contain the damage to its actual target. It is now a threat to completely innocent bystanders, like judges and court clerks. Again, this feeds directly into the arbitrary and capricious standard. In fact, the threat to “fire” (A default resignation) anyone who didn’t respond is almost surely an illegal act, so much so that it is on the edge of criminality. From a report in The Intelligencer:
Michael Fallings, an attorney specializing in federal employment law, told POLITICO the actions Musk described in the post would be illegal. “I don’t believe it would be legal, and I don’t think he really understands right now how he will even do what he’s threatened to do,” Fallings said. …
[F]ederal employees across the government reacted with fury about the dictate from Musk. A Department of Justice official, granted anonymity to avoid retribution, noted that the email was labeled as coming from an “external,” server, adding they “cannot legally respond to this” because they handle classified material.
And even Grok agreed with me (It already had the information) that the “accident” in sending the email to at least one judge (Likely many more, if not all) will play a role in the coming lawsuits in looking as self-evidently arbitrary and capricious.
The judiciary branch’s accidental inclusion—quickly rebuffed by court officials—further bolsters the case for caprice, showing sloppy execution. Precedents like FCC v. Fox Television Stations (2009) emphasize agencies must justify abrupt policy shifts; this lacks even a baseline policy to shift from. Reversal would follow if DOGE can’t defend its rationale, which, as of February 23, 2025, remains unarticulated beyond Musk’s X post and Trump’s vague efficiency push. Without a legal anchor (e.g., an executive order or regulation), it’s a prime candidate for judicial smackdown.
And so there it is. To be sure, a judge will be reluctant to grab DOGE right out from under Trump and Musk, an order shutting the entire thing down for good would be difficult to get and wouldn’t stop Trump from forming “DOGE II” and just going at it again, perhaps somewhat more carefully. And, as we’ve seen, many of DOGE’s actions are nearly impossible to reverse even in real time, never mind three weeks later. But perhaps not all.
We can’t know the end result of litigation. We only know that this weekend has been the penultimate arbitrary and capricious period for DOGE and that the suits are coming. We only know that a court will have more evidence than ever with which to hang its hat on a TRO, even an order for specific performance, reversing DOGE’s earlier decisions… It is possible. It is also possible – more possible than reversing past action, that a court will shutter the whole DOGE operation until such time as it can put forth its own rules to follow (Usually, agencies have very detailed and very constitutional rules by which they have to operate to take property or life), and prove to the court that it won’t be acting arbitrarily or capriciously in looting people’s time or career. The only way to prove such to a court is to promulgate its own rules… Something one doubts they want to do.
I suspect that a court either shuts DOGE down by Wednesday, or at the very least demands it halt all action until it can put forth some rules by which to operate. If that doesn’t happen, I predict that DOGE will never be contained under Trump and “arbitrary and capricious” is the federal government’s new business plan going forward until someone takes it.
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There is no clean up, they just break it- that’s the only point of DOGE. Not about efficiency.
Agree. They have been terribly efficient in breaking everything in their path.
I think some changes are now afoot. This was unsustainable. In the end, even in the Trump administration, they do at least need their own voters’ tacit support. They’re pretty far afield now even from the red-hat crowd.
jason
I’ve seen very few trumpers comment against Trump or Musk. All the ones I see online are supporting him 100%.
Question: what happens to the China shop when the bull is let in?
DOGE is arbitrary and capricious in its very essence.It is not an officially constituted part of the government, none of it. personnel have any credentials or security clearances or even much of an idea at all of what they are doing, and the reasons they redoing it are arbitrary and capricious as well.
Well said.
jason
RW NOT about INTELLIGENCE or Efficiency. Just do as RW, Fascist Nazi’s say or die, basically!
I think the legal concept of “Falsus in uno, falsus in omnibus” could basically be applied here — it means “false in one thing, false in everything”.
In common law, it is the legal principle that a witness who falsely testifies about one matter is not credible to testify about any matter.
So in other words if if the Trump/Musk/DOGE is capricious about this very huge and very impactful matter, then it you could pretty easily make the case that they have been — and are being — capricious about everything else they have done and are doing.