It’s difficult to convey the full magnitude of the legal chaos emanating from the Trump administration. It goes well beyond the violation of individual laws — much of the past month has featured what feels like an assault on the very idea of law as a binding constraint.
This has been especially acute when it comes to personnel, both hiring and firing. For the dozens of high-level officials President Trump has fired in violation of clear legal restrictions, he is likely to be at least somewhat vindicated by a Supreme Court that has been increasingly skeptical of laws limiting the president’s ability to fire at will.
But Mr. Trump is on decidedly shakier ground when it comes to how he has empowered Elon Musk, who is perhaps the most important figure in the new administration based on the efforts taken to reshape the federal government through his Department of Government Efficiency initiative. That’s most likely why the White House has tied itself in knots trying to explain to courts and to the public the nature of Mr. Musk’s role. Presumably, that’s because it seems clear that the Constitution does not allow it.
That’s true at the level of broad constitutional principles — particularly the principle that sovereignty flows from the people and that only officials selected through constitutional methods get to wield power in our name. This insight seems to undergird the growing mobilization against Elon Musk. Protesters at Tesla showrooms who are displaying signs that say “no one voted for Elon Musk” are making, intentionally or not, a constitutionally inflected claim.
Mr. Musk’s power also is squarely at odds with concrete constitutional provisions. While the Constitution is largely silent on removal — Mr. Trump’s arguments that the Constitution gives him limitless power to fire are atextual — the document is quite specific when it comes to appointment.
Supreme Court cases make clear that individuals who serve in “continuing” positions and who exercise “significant authority” on behalf of the United States must be appointed consistent with the Constitution’s Appointments Clause. As far as I can tell, Mr. Musk hasn’t been.
The Appointments Clause — part of Article II, the source of Mr. Trump’s virtually boundless conception of presidential power — sets forth two methods of appointment of what are called “officers of the United States.” “Principal” officers must be nominated by the president and are subject to the advice and consent of the Senate. For “inferior officers,” the Constitution allows Congress to give the appointment power to the president alone — that is, without Senate confirmation — or to the head of a department, or to the courts of law. Inferior officers must be subject to the supervision of someone other than the president; if you report directly to the president, you’re a principal officer.
This means that the individuals who wield the most authority — principal officers — are subject to both the public scrutiny and the check that is supposed to be imposed by Senate confirmation.
Mr. Musk appears to be wielding significant power, as evidenced by his presence at the administration’s first cabinet meeting last week. He was the first to speak after the president’s introduction. He boasted about pushing federal employees to respond to an email about their work, inveighed about the federal deficit and casually disclosed that his team had inadvertently canceled funding for Ebola prevention — an error he claims was quickly rectified, but may not have been. The email he mentioned appears to have been dashed off without advance warning even to the cabinet.
The Supreme Court has found that a range of government workers exercise enough authority that they are officers and must be appointed through one of the methods outlined in the Constitution — including many who exercise far less authority than Mr. Musk appears to. In 2018, for example, the court held that administrative law judges at the Securities and Exchange Commission were officers of the United States. In a more recent decision, the court explained that “thousands of officers wield executive power” on the president’s behalf, power that “acquires its legitimacy and accountability to the public through ‘a clear and effective chain of command’ down from the president.”
Indeed, the main basis on which Judge Aileen Cannon dismissed the classified-documents case against Mr. Trump was that the special counsel Jack Smith was an officer of the United States who had not been constitutionally appointed. The specifics of her conclusion were highly dubious — but she was right that “the Appointments Clause is a critical constitutional restriction stemming from the separation of powers.”
Two legal cases are making the argument that Mr. Musk’s power cannot be squared with the Appointments Clause. They contend that if Mr. Musk is as powerful as he seems to be, he must be appointed consistent with the Constitution — and he’s most likely a principal officer, which means Senate confirmation.
One case, in Maryland, was brought by a group of current and former federal employees and contractors; another, in Washington, D.C., was brought by a number of states. In a hearing last week, the judge in the Maryland case, Theodore Chuang, said that he was “highly suspicious” of the administration’s explanation for Mr. Musk’s role and characterized its insistence that he has no formal role in the Department of Government Efficiency as apparently “factually inaccurate.”
The district judge in the Washington case has made clear that allegations suggest that Mr. Musk has “rapidly taken steps to fundamentally reshape the executive branch,” with no apparent “source of legal authority.” His actions appear to describe “precisely the ‘executive abuses’ that the Appointments Clause seeks to prevent.”
Based on well-settled principles, these claims should succeed in the cases. The decisions are unlikely to invalidate what has been done to the federal government by those involved in Mr. Musk’s initiative — but they should say that Mr. Musk cannot continue to exercise this authority without a constitutionally permissible appointment.
There is no small irony in Mr. Musk’s exercising this amount of extraconstitutional authority. Mr. Trump’s allies have consistently alluded to the principle of democratic legitimacy in their broadsides against the administrative state. When Mr. Musk laid out the principles of DOGE in an opinion essay, written with Vivek Ramaswamy, they said that “most government enforcement decisions and discretionary expenditures aren’t made by the democratically elected president or even his political appointees” but by people who were, they stressed, “unelected” and “unappointed.” This, they said, is “antidemocratic and antithetical to the founders’ vision.”
The system the founders created includes clear requirements for ensuring legitimacy and accountability in positions of significant government power. Americans should insist that if President Trump wants Mr. Musk in government, there’s a way to do that: appoint him as the Constitution requires.
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