SCOTUS review of DOGE FOIA case should hold DOGE accountable and limit presidential evasion of disclosure laws
Source: Shirin Ali. "SCOTUS will get to decide if FOIA applies to DOGE.." October 15, 2026. slate.com
The Gist
The author argues that DOGE acted like a real federal agency, with big powers and taxpayer money, so it should have to answer public records requests. The Trump administration's attempts to dodge FOIA by calling DOGE an 'advisor' look like an effort to avoid scrutiny. The Supreme Court's decision could determine whether presidents can shield powerful offices from public disclosure.
Conclusion
The Supreme Court's review of U.S. DOGE Service v. U.S. District Court should be treated as a critical opportunity to hold DOGE accountable and to establish that presidents cannot bypass federal disclosure laws like FOIA by labeling an entity a mere 'advisory body'. The Trump administration's resistance reflects hostility to transparency rather than sound legal reasoning.
Premises
- DOGE was created by executive order, wielded sweeping power (firing tens of thousands of federal employees, collecting sensitive data, dismantling agencies), and received about $41 million in taxpayer funds.
- A federal district judge found DOGE likely subject to FOIA because it exercises 'substantial authority independent of the President', and the D.C. appeals panel declined to disturb that finding.
- The administration's claim that DOGE is merely a presidential advisory body exempt from FOIA, and its attempt to invoke the Cheney standard, are legally weak: CREW argues the case 'looks nothing like Cheney', and applying it would foreclose discovery contrary to the Court's own prior order.
- The administration has stonewalled CREW's request, resisted even the narrowed disclosure that lower courts allowed, and repeatedly sought Supreme Court intervention to avoid compliance.
- FOIA is a key tool journalists and watchdogs use to expose waste, abuse and ethics violations, and an unaccountable DOGE denies Congress and the public information needed for oversight.
- The administration's stance fits a pattern of hostility toward the press and accountability bodies, and may be motivated by a desire to protect Elon Musk, a major GOP campaign funder.
Assumptions
- Functional criteria (independent authority, funding, operational power) rather than the label the executive gives an entity should determine FOIA coverage.
- Government transparency through FOIA is a strong public good that should be narrowed only with compelling justification.
- The administration's motives are primarily self-protective and political rather than principled separation-of-powers concerns.
- A Supreme Court ruling will set a broad precedent affecting all federal agencies' public obligations.
- The Court's earlier stay indicates a concern with discovery scope, not a rejection of the claim that DOGE is subject to FOIA.