Late Tuesday, a federal judge denied a temporary restraining order (TRO) sought by 14 Democratic state attorneys general against the Department of Government Efficiency (DOGE) and its leader, Elon Musk. The TRO sought to prevent DOGE from canceling contracts, furloughing federal employees, editing regulations, accessing confidential agency data, and other actions.

However, U.S. District Judge Tanya Chutkan said the attorneys general sought a “prophylactic TRO,” without actually providing evidence that DOGE’s activities had caused irreparable harm. “On the record before it, the court cannot conclude that Plaintiffs satisfy the ‘high standard for irreparable injury,’” she wrote. “The ‘possibility’ that Defendants may take actions that irreparably harm Plaintiffs ‘is not enough.’”

The more politically attuned reader may recognize Chutkan as no friend of President Trump. “You’ll remember Judge Chutkan as the Obama appointee who presided over Biden DOJ special counsel Jack Smith’s 2020 election-interference case against Donald Trump,” wrote former federal prosecutor Andy McCarthy. “Her hostility to the now-president was evident throughout those proceedings.”

In this case, “it seems apparent that Chutkan’s heart is with the Democratic state attorneys general,” McCarthy continued. “The judge has expressed sympathy for the blue states’ pose of alarm over Musk’s access to the sensitive government records and has treated as serious the states’ claims that DOGE is making personnel decisions about government employees.”

But even Chutkan’s strong personal feelings could not resurrect the DOA request brought by the attorneys general of “New Mexico, Arizona, Michigan, California, Connecticut, Hawaii, Maryland, Massachusetts, Minnesota, Nevada, Oregon, Rhode Island, Vermont and Washington.”

“To grant such an application, no matter how temporarily, would be tantamount to saying the chief executive may not study the inner workings of executive agencies and officers for whose activities he is accountable,” mused McCarthy. “That would be absurd and counter-constitutional.”

The best Chutkan could do was tip her cap to the “colorable Appointments Clause claim” the lawsuit raised, namely that “Musk has not been nominated by the President nor confirmed by the U.S. Senate, as constitutionally required for officers who exercise ‘significant authority pursuant to the laws of the United States.’”

“Plaintiffs legitimately call into question what appears to be the unchecked authority of an unelected individual and an entity that was not created by Congress and over which it has no oversight,” Chutkan argued. “In these circumstances, it must be indisputable that this court acts within the bounds of its authority.”

Without shedding her partisan preferences, Judge Chutkan has apparently switched from a pass offense to a run offense, preferring a final victory over the Trump administration to an immediate one. Better to control the ball for 10 minutes and end with a touchdown than lose possession by trying to force a risky play. To switch metaphors, after watching squirrely cases against Trump get chucked off the mountainside by the higher court, Chutkan has apparently resolved to stick doggedly to the rails.

For, truth be told, Chutkan smelled weakness in the U.S. Department of Justice (DOJ) defense: an unexplained vagueness of what the role of DOGE is, precisely, and what authority it has. In a footnote to her opinion, she pointed out an apparent contradiction in the government’s statements and reminded them “of their duty to make truthful representations to the court.” A sworn statement made to the court declared that DOGE did not have authority over personnel decisions in various agencies, while the text of the executive order suggested that they did.

Related to this is a lack of clarity about the nature of Elon Musk’s role. “Musk has been described by the administration as a ‘special government employee,’ a ‘non-career special government employee,’ and a ‘senior adviser to the president,’” McCarthy listed. He noted that Musk provides leadership over DOGE, even though he is technically not a member of the DOGE staff.

“Bottom line: Is Musk exercising real authority, or is he just a consultant to agency heads — federal officers who are subject to confirmation, or who’ve assumed their positions only upon satisfying statutory qualifications?” McCarthy asked. “The issue is straightforward: If an executive branch official exercises important powers without supervision, then that official is an officer of the United States. Such an officer’s appointment must either be subject to Senate confirmation or pursuant to a statute.”

I’ve had the same question for the past month, and it isn’t clear that the White House has a good answer.

As lawsuits continue to pile up, the White House is going to need a good answer if it’s going to solidify DOGE’s much-needed reforms. On Friday and Monday, two other federal judges denied requests to block DOGE access to files in multiple other government agencies. And another lawsuit was just filed by “current or recently terminated employees or contractors of the U.S. Agency for International Development (‘USAID’),” who have a better claim to standing than state attorneys general.

With the asteroid field of lawsuits growing thicker by the day, the White House, DOGE, and Musk will need the piloting skills of Han Solo to emerge unscathed. DOGE has performed seemingly invaluable work so far by bringing much-needed transparency to opaque, unaccountable corners of the federal bureaucracy. But such transparency naturally enrages established powers in Washington, D.C., who can smother DOGE in a dogpile of lawsuits.

If DOGE’s changes are going to stick, the White House will need to provide ironclad clarity about DOGE’s role, authority, and legitimacy.