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"That said, Plaintiffs raise a colorable Appointments Clause claim with serious implications. 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.” United States v. Arthrex, Inc., 594 U.S. 1, 12 (2021) (citation omitted); Compl. ¶ 64; TRO Mot. Hr’g Tr. 29:07–22 (Feb. 17, 2025), ECF No. 27. Bypassing this “significant structural safeguard[] of the constitutional scheme,” Edmond v. United States, 520 U.S. 651, 659 (1997), Musk has rapidly taken steps to fundamentally reshape the Executive Branch, see Compl. ¶¶ 66–76; Pls.’ Reply at 1–3, ECF No. 21. Even Defendants concede there is no apparent “source of legal authority granting [DOGE] the power” to take some of the actions challenged here. Accepting Plaintiffs’ allegations as true, Defendants’ actions are thus precisely the “Executive abuses” that the Appointments Clause seeks to prevent. Edmond, 520 U.S. at 659.

But even a strong merits argument cannot secure a temporary restraining order at this juncture. 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. In these circumstances, it must be indisputable that this court acts within the bounds of its authority. Accordingly, it cannot issue a TRO, especially one as wide-ranging as Plaintiffs request, without clear evidence of imminent, irreparable harm to these Plaintiffs. The current record does not meet that standard. In some circumstances, constitutional violations may constitute irreparable injury. See Mills v. District of Columbia, 571 F.3d 1304, 1312 (D.C. Cir. 2009). Plaintiffs have not identified, and the court is unaware of, any case granting a TRO based on an Appointments Clause violation. And the D.C. Circuit has recently held that at least certain Appointments Clause violations are “not, without more, an injury that necessitates preliminary injunctive relief.” Alpine Sec. Corp. v. FINRA, 121 F.4th 1314, 1332–33 (D.C. Cir. 2024) (collecting cases)."

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