President-elect Donald Trump listens to Elon Musk as he arrives to watch SpaceX’s mega rocket Starship lift off for a test flight from Starbase in Boca Chica, Texas, Nov. 19, 2024 (Brandon Bell/Pool via AP, File).
The Trump administration on Friday implored the U.S. Supreme Court to sidestep lower courts and grant the Department of Government Efficiency (DOGE) access to Americans’ personally identifying information stored by the Social Security Administration (SSA).
In a 33-page application for a stay, the U.S. Department of Justice, represented by Solicitor General D. John Sauer, launched an attack on one of the government’s favorite bugbears: a national injunction.
“This emergency application presents a now-familiar theme: a district court has issued sweeping injunctive relief without legal authority to do so, in ways that inflict ongoing, irreparable harm on urgent federal priorities and stymie the Executive Branch’s functions,” the application reads.
The dispute at the heart of the matter is simple enough: DOGE wants access to massive amounts of sensitive data inclusive of Social Security numbers, medical records, and financial information stored by the SSA; a group of two labor unions and one retiree association sued to stop Elon Musk and his team from accessing said data; and two courts have barred DOGE from obtaining the requested access.
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Now, on a dual-pronged track, the Trump administration hopes the nation’s high court will rule in their favor, at least temporarily.
The government has fashioned its application as a request for a permanent and administrative, or emergency, stay, asking Chief Justice John Roberts to quickly pause the injunction issued in late April by U.S. District Judge Ellen Hollander, a Barack Obama appointee, while the justices mull over lengthy relief.
On Wednesday, the full U.S. Court of Appeals for the 4th Circuit upheld the district court’s injunction. In a 9-6 en banc ruling, the majority ruled the “bedrock” principle of the SSA keeping data confidential “has been flouted by the sudden grant to DOGE of unfettered access to SSA system of records.”
Now, describing DOGE’s purpose as advising the government “how to streamline government, eliminate waste, ferret out fraud, and modernize outdated systems that let malfeasance and inefficiency go undetected,” Sauer says the group is performing a “critical government effort” that necessitates immediate action because of DOGE’s purportedly limited “18-month” duration.
“The district court’s flawed injunction forecloses the Executive Branch from carrying out the pressing priorities of modernizing government information systems and ferreting out fraud, waste, and abuse,” the application goes on. “The district court has now blocked these time-sensitive efforts for over a month, without any legal basis for doing so. In these circumstances, an administrative stay is warranted while this Court assesses the government’s entitlement to a stay.”
The legal battle in the case has ping-ponged back and forth between various courts for months.
The district court first issued a temporary restraining order barring DOGE from accessing non-anonymized personal data as well as demanding that they “disgorge and delete” any personally identifying data in their possession and remove any software or code the Musk-led group may have installed or altered on SSA computer systems.
The government appealed the restraining order to the 4th U.S. Circuit Court of Appeals but was rejected. The plaintiffs then moved for a preliminary injunction to maintain the privacy controls and won, with Hollander allowing the government to request a stay on appeal. That effort flamed out earlier this week, and now the matter is simultaneously back before the district court, where the merits have yet to be decided with finality, and the Supreme Court.
“This case justifies this Court’s intervention, because the district court made glaring legal errors in the course of halting high-priority functions within a key agency,” Sauer argues. “To start, respondents — two labor unions and an advocacy organization whose members have submitted their personal information to the government — lack Article III standing.”
The government essays an iteration of what is widely understood by legal scholars as “conservative standing doctrine.”
This judicial theory was created in two cases from the 1920s by conservative judges who sought to restrain the use and limits of constitutional redress. In other words, standing doctrine was created — and has over time been honed and sustained — to limit citizens from suing the government over perceived violations of their rights. While technically procedural in nature, as opposed to relying on underlying arguments in a dispute, standing arguments are fact-intensive.
Here, Sauer says the plaintiffs in the case cannot, in the parlance of standing doctrine, show they suffered an “injury in fact,” which is a necessary component to sustaining a lawsuit against the government.
“Respondents’ members furnished their information with the understanding that government employees could access it for a number of purposes, as those employees are permitted to do pursuant to various exceptions in the Privacy Act of 1974,” the application goes on. “Respondents cannot plausibly claim any concrete injury from having particular agency employees — i.e., members of the SSA DOGE team — access their information when those employees are subject to the same legal and ethical obligations against further dissemination that bind all agency employees. Respondents do not suffer any concrete injury based on which SSA employees have access to their data subject to those safeguards.”
In other words, the government argues, because the DOGE teams assigned to the SSA are necessarily made up of, at least in part, some extant SSA employees, the requested access to personal data is not a problem.
So far, however, courts have rejected this line of argument.
“If receiving a single unwanted text message or phone call is sufficiently offensive to constitute concrete harm for standing purposes, in the context of intrusion upon seclusion, as several Circuits have determined, then providing the DOGE Team with access to the medical records and sensitive financial information of millions of people, if unauthorized, or without adequate need, is surely sufficiently offensive so as to constitute concrete harm,” Hollander wrote in her latest opinion. “Such unrestricted access to [personally identifying information] that SSA provided to the DOGE Team would be highly offensive to an objectively reasonable person.”
Roberts, for his part, is not acting with any haste. In response to the government’s emergency request, he gave the plaintiffs in the case until the afternoon of May 12 to file their response.
