#Musk's own attorneys in a Delaware court filing on Saturday wrote:
"Musk ... is a HIGH-RANKING government official. ... The White House has designated Musk a 'special government employee' IN CHARGE OF Establishing & Implementing the President's Department of Government Efficiency ('#DOGE')."
The filing undercuts public statements & court filings to the contrary by #Trump ofcls.
There are at least 3 #AppointmentsClause cases against Musk's exercise of govt authority.
The Framers Had a Plan to Protect Us From Elon Musk
“If Trump gets away with doing this, we’re going back to the 18th century.”
https://www.motherjones.com/politics/2025/03/elon-musk-appointments-clause-doge/
"Multiple challenges to #Musk & the actions of his #DOGE allege his vast authority violates the #AppointmentsClause, one of the #Constitutions key anti-corruption measures... which the framers crafted to prevent the kingly practice of handing #jobs & #authority to unaccountable allies"
![Text from article:
While this drama is spilling out in the press, it’s legally relevant. Multiple challenges to Musk and the actions of his Department of Government Efficiency allege his vast authority violates the Appointments Clause, one of the Constitutions key anti-corruption measures. Under this clause, which the framers crafted to prevent the kingly practice of handing jobs and authority to unaccountable allies, any officer of the United States must be formally nominated by the president and confirmed by the Senate. Moreover, such appointees must fill a role created by Congress. Musk’s exercise of vast authority, at least four lawsuits allege, is unconstitutional, as he was neither confirmed by the Senate nor is he serving in any role Congress created. “You don’t have to stretch the text very far to see that there is a problem under [the Appointments Clause in] Article Two,” says Jed Shugerman, a law professor and historian at Boston University School of Law.](https://assets.newsie.social/media_attachments/files/114/186/560/211/863/334/original/3791a9e3abf0cc81.png "Text from article:
While this drama is spilling out in the press, it’s legally relevant. Multiple challenges to Musk and the actions of his Department of Government Efficiency allege his vast authority violates the Appointments Clause, one of the Constitutions key anti-corruption measures. Under this clause, which the framers crafted to prevent the kingly practice of handing jobs and authority to unaccountable allies, any officer of the United States must be formally nominated by the president and confirmed by the Senate. Moreover, such appointees must fill a role created by Congress. Musk’s exercise of vast authority, at least four lawsuits allege, is unconstitutional, as he was neither confirmed by the Senate nor is he serving in any role Congress created. “You don’t have to stretch the text very far to see that there is a problem under [the Appointments Clause in] Article Two,” says Jed Shugerman, a law professor and historian at Boston University School of Law.")
Judge Chuang found that #ElonMusk is unlawfully exercising power under the #AppointmentsClause. However, because some of the #USAID dismantling was done by #PeterMarocco — #Trump’s #State Dept Director of #ForeignAssistance — not #Musk, & the dismissed employees didn't sue #USAID, he limited his preliminary injunction.
US judge orders DOGE, Musk to produce cost-cutting records
https://archive.is/lykiV#selection-1091.0-1091.58
"The states argued that #Musk violated the #Constitution by wielding power that only officials confirmed by the #US Senate can exercise under the #AppointmentsClause, & sought materials from him through a process known as discovery...
"Defendants argue that the 'inner workings of government' are immaterial to an Appointments Clause claim," [Chutkan] wrote. "The court is not convinced""
The states argued #Musk violated the #Constitution by wielding #power only ofcls confirmed by the US #Senate can exercise under the #AppointmentsClause, & sought the materials through…discovery.
#Chutkan said her order focused mainly on who at #DOGE was making cost-cutting decisions & how far they could go.
"Defendants argue that the 'inner workings of government' are immaterial to an Appointments Clause claim,” she wrote.
"The #AppointmentsClause of the #Constitution requires that principal officers be nominated by the president & confirmed by the #Senate...
When #DOGE officials provide high-level policy direction to a high-ranking employee at #Treasury, are they exercising significant authority & discretion? If so, does that make them “officers” under the Appointments Clause? Were they nominated by the president & confirmed by the Senate?"
https://www.lawfaremedia.org/article/who-is-running-the-u.s.-doge-service
![Transcript from article (edited for length):
JUDGE KOLLAR-KOTELLY: ...Based on the record before me, I have some concerns about the constitutionality, frankly, of DOGE’s structure and operations.
...The Appointments Clause of the Constitution requires that principal officers be nominated by the president and confirmed by the Senate. Employees and inferior officers need to be supervised by principal officers to comply with the Appointments Clause.
I want to ask the few questions that I have about the status of people in DOGE. It appears to me that the people within DOGE could be exercising authority as officers of the United States without complying with the Appointments Clause. I think that’s something that the court should certainly note may be a problem…Maybe it’s not, but on this record we certainly don't have enough information…
Mr. Krause said in his Feb. 12 declaration that he coordinates with “officials” at USDS [DOGE]...“Officials” are not just employees. Those officials are people that could be in a different category than regular employees. My question is, who are the DOGE officials who give Mr. Krause direction? What are their titles? When DOGE officials provide high-level policy direction to a high-ranking employee at Treasury, are they exercising significant authority and discretion? If so, does that make them “officers” under the Appointments Clause? Were they nominated by the president and confirmed by the Senate?](https://assets.newsie.social/media_attachments/files/114/066/695/773/906/010/original/ca7eb6fe672b41c5.png "Transcript from article (edited for length):
JUDGE KOLLAR-KOTELLY: ...Based on the record before me, I have some concerns about the constitutionality, frankly, of DOGE’s structure and operations.
...The Appointments Clause of the Constitution requires that principal officers be nominated by the president and confirmed by the Senate. Employees and inferior officers need to be supervised by principal officers to comply with the Appointments Clause.
I want to ask the few questions that I have about the status of people in DOGE. It appears to me that the people within DOGE could be exercising authority as officers of the United States without complying with the Appointments Clause. I think that’s something that the court should certainly note may be a problem…Maybe it’s not, but on this record we certainly don't have enough information…
Mr. Krause said in his Feb. 12 declaration that he coordinates with “officials” at USDS [DOGE]...“Officials” are not just employees. Those officials are people that could be in a different category than regular employees. My question is, who are the DOGE officials who give Mr. Krause direction? What are their titles? When DOGE officials provide high-level policy direction to a high-ranking employee at Treasury, are they exercising significant authority and discretion? If so, does that make them “officers” under the Appointments Clause? Were they nominated by the president and confirmed by the Senate?")
From legal analyst Anna Bower:
Judge Kollar-Kotelly grilled counsel for the government on DOGE's command structure.
Judge KK: Is there an administrator of Doge at the present time?
Govt Counsel: I don’t know the answer to that
The judge said the questions are relevant bc she has concerns about whether #DOGE is operating constitutionally under the #AppointmentsClause.
https://bsky.app/profile/annabower.bsky.social/post/3lix6yg5ivs2j
also:
https://bsky.app/profile/annabower.bsky.social/post/3lixlgt2yg22j
&
https://bsky.app/profile/annabower.bsky.social
![Text from transcript:
Judge KK: Okay, so is there an administrator of Doge at the present time?
Humphreys: I don't know the answer to that.
Judge KK: You don't know whether there is an administrator, is that what you're saying?
Humpreys: I'm saying I don't know.
Judge KK [directing her attention to Humprey's co-counsel]: Okay, everybody at the table speak up over there if you know anything else.
[Silence.]](https://assets.newsie.social/media_attachments/files/114/062/953/172/254/985/original/1d599abe6fd6b5a1.jpg "Text from transcript:
Judge KK: Okay, so is there an administrator of Doge at the present time?
Humphreys: I don't know the answer to that.
Judge KK: You don't know whether there is an administrator, is that what you're saying?
Humpreys: I'm saying I don't know.
Judge KK [directing her attention to Humprey's co-counsel]: Okay, everybody at the table speak up over there if you know anything else.
[Silence.]")
However, per Ryan Goodman, while Judge #Chutkan denied temporary restraining order in New Mexico v #ElonMusk, she signaled that the plaintiffs have the better argument when this reaches the merits: #Musk is exercising power in violation of #AppointmentsClause.
https://storage.courtlistener.com/recap/gov.uscourts.dcd.277463/gov.uscourts.dcd.277463.29.0_1.pdf
NYT:
Judge #AileenCannon #dismissed in its ENTIRETY the #ClassifiedDocuments case against #Trump, ruling the appointment of #SpecialCounsel #JackSmith violated the #Constitution.
Cannon, found that because Smith had not been named to the post by the president or confirmed by the Senate, his appointment was in violation of the #AppointmentsClause.
#law
https://www.nytimes.com/2024/07/15/us/politics/trump-document-case-dismissed.html?smid=nytcore-ios-share&referringSource=articleShare&sgrp=c-cb
