In the first months of 2025, the Department of Government Efficiency announced the termination of contracts worth billions of dollars and obtained access to sensitive federal data and payment systems, according to the court record. A watchdog group asked a simple question: under the law, is DOGE an agency whose records the public can request?

On October 13, 2026, the Supreme Court agreed to decide that question. It will be the Court’s second intervention in a case that began as an ordinary Freedom of Information Act request.

A FOIA Request That Became a Constitutional Fight

In January 2025, Citizens for Responsibility and Ethics in Washington (CREW) submitted FOIA requests to the Office of Management and Budget and to the U.S. DOGE Service (USDS), seeking basic information about DOGE such as organizational charts and financial disclosures. The government processed the OMB request but refused to process the DOGE one, arguing that USDS is not subject to FOIA at all, according to CREW’s brief to the Supreme Court.

The legal question turns on a 1971 D.C. Circuit decision, Soucie v. David. FOIA covers the Executive Office of the President by its terms, but courts exempt units there that “solely advise and assist the President” and do not wield “substantial independent authority.” If DOGE is an advisory body, it is outside the law. If it exercises real authority over the government, it is inside.

CREW sued. In March 2025, Judge Christopher Cooper found that DOGE was “likely” covered by FOIA, and wrote that “the public would be irreparably harmed by an indefinite delay in unearthing the records CREW seeks” (NBC News). In CREW’s account of his ruling, he found DOGE “likely exercising substantial independent authority much greater than other EOP components held to be covered by FOIA,” and noted that the executive order creating it gave it authority to “implement” the DOGE agenda, “not just to advise the President in doing so” (CREW brief, above).

The government did not appeal that ruling. Instead it moved for summary judgment, backed by a declaration from DOGE’s Acting Administrator, Amy Gleason. In CREW’s description, her declaration said DOGE Teams were controlled by each agency and that USDS was a separate advisory entity with no authority of its own, contrary to publicly available information (CREW brief). Judge Cooper allowed limited discovery to resolve the factual dispute, including a deposition of Gleason (CBS News).

June 2025: The First Intervention

The government sought a writ of mandamus from the D.C. Circuit, which denied it, then went to the Supreme Court. Solicitor General D. John Sauer argued that the discovery order “offends the separation of powers” (SCOTUSblog), and warned that treating a presidential advisory body as an agency based on the force of its recommendations would open “opening season” for FOIA requests on the president’s advisers (CBS News).

On June 6, 2025, the Court issued a two-page unsigned order (No. 24A1122). It stayed the discovery order, treated the application as a petition for certiorari, granted it, vacated the D.C. Circuit’s ruling and sent the case back. The Court held that the parts of the order requiring disclosure of internal Executive Branch DOGE recommendations were “not appropriately tailored,” and wrote that “separation of powers concerns counsel judicial deference and restraint in the context of discovery regarding internal Executive Branch communications” (SCOTUSblog). Justices Sotomayor, Kagan and Jackson would have denied the application, without explanation.

The Court did add a line that did not favor the government: any inquiry into whether an entity is covered by FOIA “cannot turn on the entity’s ability to persuade” (quoted in CREW’s brief; see also the SCOTUSblog case page). It sent the case back for the D.C. Circuit to narrow the discovery.

The Second Round

CREW responded to the remand by withdrawing every request for intra-executive recommendations, which was the part the Court had objected to. The D.C. Circuit granted mandamus as to those withdrawn requests and otherwise denied it, in an unpublished decision. The government petitioned again (No. 25-1103), and on October 13, 2026, the Court granted the petition (PBS/AP).

According to CREW’s brief opposing review, the questions the government presented are:

  1. Whether the D.C. Circuit abused its discretion in denying the “extraordinary remedy of mandamus.”
  2. Whether narrow discovery can ever be appropriate to determine whether an Executive Office entity exercises substantial independent authority.

The administration says DOGE is a presidential advisory body and so exempt from FOIA, and that the D.C. Circuit ignored the Supreme Court’s direction to weigh separation-of-powers concerns, as the AP summarized it. CREW says the lower court did what the justices told it to do. The Court is expected to rule by the end of June (NBC News). The reporting I found does not give a vote on the grant.

What CREW still wants is narrow. Its lawyers say the records concern DOGE’s guidance to workers on canceling contracts and firing government employees, and that none of its requests seek White House communications (NBC News). In a statement, CREW lawyer Nikhel Sus said: “We will continue to pursue transparency for the American people, who deserve to know.”

The Loophole at the Center of It

CREW argues the stakes go beyond DOGE. In its brief, it says the government’s proposed rule would “allow the executive to establish hugely consequential entities like USDS, while sidestepping an important sunshine law, simply by placing those entities in EOP and obscuring the precise nature of their delegated authority.”

That is the real question. FOIA exists, in the words the brief quotes from a Supreme Court decision, “to ensure an informed citizenry, vital to the functioning of a democratic society.” If a president can build an organization that terminates billions in contracts and reshapes agencies, and then escape FOIA by describing it as an adviser, the law’s reach depends on what the executive says about itself. CREW says courts have already found false the government’s assertion that DOGE exercised no authority through its agency teams.

CREW also argues the case is a poor vehicle for the question the government wants decided, because the case reaches the Court as a challenge to the denial of mandamus, a standard under which the government has to show it is “indisputably correct” (CREW brief). The justices decided to hear it anyway.

Why This Is a Court Reform Story

The Court acted before there was a record. In June 2025, the justices put a hold on discovery into whether DOGE was an agency, before any discovery had occurred. Discovery was the tool the district court chose to test the government’s own declaration. The Court’s order said agency status cannot turn on an entity’s ability to persuade, but it also put the fact-finding on hold.

The pattern is the same as in other emergency-docket cases. As in the Pike case and the political ad-rates case, the first decision came on the emergency docket, in a short unsigned order. The full argument comes later, after the interim ruling has already shaped the case.

A Court that demands openness from others should offer it. The justices will now decide how far the public’s right to know reaches into the White House. The same Court has made its own staff sign nondisclosure agreements, and its justices decide for themselves, with no explanation, when to step aside from cases. Public confidence in the Court is at record lows, with Gallup measuring approval at 33% in July (Gallup). A decision to expand executive secrecy would land on a Court that asks for deference on its own.

The merits of the FOIA question are real, and the Court may rule either way. But the way to earn trust when ruling on secrecy is to be open about how you got there: written reasons, public argument, and no hidden hand on the scale before the facts are in.

Sources