The Supreme Court just blessed a new form of government power: all the access, none of the accountability
Within days, the Supreme Court made two decisions about the same entity that together create a blueprint for unaccountable governance. On June 6, the Court extended its block on orders requiring the Department of Government Efficiency to release records about its operations to a watchdog group [1]. Days earlier, in a separate case, the Court permitted DOGE broad access to personal information on millions of Americans in Social Security Administration data systems [1]. The message: DOGE is governmental enough to access your private data, but not governmental enough for you to know what it does with that access.
This isn't a bug in how the Court applied existing law. It's a feature of how DOGE was designed, and a template for how future administrations can build power structures that operate in the gap between public accountability and private secrecy.
How the loophole works
The mechanism is straightforward. The Trump administration argues that DOGE is an "advisory entity" and therefore not subject to the Freedom of Information Act, which requires government agencies to respond to public records requests [1]. District Judge Christopher Cooper disagreed in April, ruling that DOGE likely is a government agency covered by FOIA and ordering it to turn over records to Citizens for Responsibility and Ethics in Washington, a government watchdog organization that sued for access [1]. The D.C. Circuit Court of Appeals declined to pause that order on May 14 [1]. Chief Justice John Roberts then imposed a temporary hold [1], which the full Court extended on June 6 over the dissent of its three liberal justices [1].
The legal question is whether DOGE meets the statutory definition of an agency. But the functional question is simpler: can an entity access government data systems, operate with government authority, and shape government operations while claiming it's merely offering advice? DOGE's structure suggests the answer is yes, as long as you're willing to maintain the fiction.
Elon Musk formally ended his government work on May 30 [1]. Yet DOGE continues operating. That's the tell. The entity was built to outlast its founder's official involvement, to persist as something that looks like a government agency, acts like a government agency, and wields government power, but claims the legal protections of something that isn't one.
The infrastructure gap
This works because oversight systems weren't built for hybrid entities. FOIA, created in 1966, operates on a binary: you're either a government agency subject to transparency requirements, or you're not. The law assumed that anything with government power would be formally governmental, and anything private would lack government access. DOGE occupies the space between those assumptions.
Judge Cooper recognized this, noting that DOGE's operations have been marked by "unusual secrecy" [1]. That phrasing is careful, a federal judge observing that even by the standards of government entities that routinely claim exemptions and delays, DOGE operates with exceptional opacity. Neither DOGE nor the Supreme Court's majority provided public explanation for their positions. The secrecy isn't incidental to the structure; it's the point.
The Social Security data access makes the stakes concrete. Millions of Americans whose information DOGE obtained have no mechanism to learn what was done with that data, who reviewed it, what analyses were performed, or what recommendations resulted. The asymmetry is total: the entity knows everything about you that the government knows, but you can't know what the entity does.
What this creates going forward
If this model survives, it becomes available to future administrations. Call an entity advisory. Give it access to government systems and data. Staff it with people who shape policy and operations. Shield it from FOIA by claiming it merely provides recommendations, not decisions. The structure lets you route government power through an entity that faces none of the transparency requirements government agencies face.
This isn't about whether DOGE's specific policy goals are sound. It's about whether American governance can function when power and accountability are deliberately separated. The three liberal justices thought the answer was no [1]. The majority disagreed, without public explanation.
CREW sued because it couldn't get basic information about how a government-adjacent entity with government access operates [1]. The Supreme Court's decisions mean that for now, it still can't. The precedent is set. The loophole is open. What remains is whether other entities, under this administration or future ones, will use the same architecture to build power structures that operate beyond the reach of the transparency laws that are supposed to make government accountable to the people it governs.
