Since President Trump took office just under a month ago, Elon Musk and his team of privateers have rampaged through government, demolishing agencies, rifling through private data, firing thousands of career federal employees and even changing signage on federal buildings and historic sites.
The White House has justified Musk’s authority under the label “special government employee.” The media has taken the bait to an alarming degree, covering Musk and his Department of Government Efficiency as if they are legitimate agents of the federal government.
This is legal window-dressing, as two lawsuits allege — one filed in federal court in Washington, D.C. and one in Maryland. Both cases claim that Musk is operating unconstitutionally and seek injunctions stripping Musk of his powers and endeavoring to undo some of the damage he has already done to the nation. Of all the lawsuits filed since Jan. 20, these two are perhaps the most important.
Although it is normally Congress’s job to create agencies and give them their power by statute, Trump created DOGE by executive order. He renamed an existing agency, the U.S. Digital Service, which President Barack Obama created as a sub-entity within the Executive Office of the President. That office was created in 1939 by President Franklin D. Roosevelt to give the president support to govern effectively, including assisting with messaging to the American people and promoting our interests abroad. The Digital Service’s role was to improve the government’s digital interfaces, including the HealthCare.gov website that launched Obamacare.
As the 26 current and former government employee plaintiffs in the Maryland suit allege, Musk’s authority far surpasses that of a presidential advisor within the reasonable scope of the Executive Office of the President or U.S. Digital Service. “His power includes, at least, the authority to cease the payment of congressionally approved funds, access sensitive and confidential data across government agencies, cut off systems access to federal employees and contractors at will, and take over and dismantle entire independent federal agencies,” their complaint states. Such a delegation of power requires an act of Congress.
The D.C. case was filed by a group of 19 state attorneys general, who write, “President Trump has delegated virtually unchecked authority to Mr. Musk without proper legal authorization from Congress and without meaningful supervision of his activities.”
Special government employees are supposed to be temporary — employed no more than 130 days within a 365-day period. They are also subject to conflict-of-interest laws. In a letter sent to White House Chief of Staff Susie Wiles on Monday, Sen. Adam Schiff (D-Calif.) wrote, “Musk’s compliance with federal conflicts of interest and other related obligations remains unknown to Congress and the public.”
The conflict-of-interest laws have criminal implications. And Musk’s conflicts are glaring, as his companies are under federal scrutiny by several agencies over which he has immense power. The Guardian reported, for example, that FDA staff reviewing Musk’s brain implant company Neuralink had been fired over the weekend.
Even if Musk is a compliant special government employee, Trump has no authority to give him power that the executive does not have — including the power to dismantle entire federal agencies. Again, that requires an act of Congress.
In a post-hearing filing in the case before Judge Tanya Chutkan, Joshua Fisher, the director of the White House Office of Administration, declared that Musk “has no actual or formal authority to make government decisions himself,” including personnel decisions at individual agencies; that Musk is an employee of the White House Office (not the U.S. Digital Service or the U.S. DOGE Service Temporary Organization); and that Musk only has the ability to advise the president, or communicate the president’s directives, like many other senior White House advisors (citing the example of Biden advisor Anita Dunn).
These assertions are plainly false.
On Tuesday, Chutkan denied a temporary restraining order, finding that the plaintiffs “have not adequately linked Defendants’ actions to imminent harm to [the] States in particular” with sufficient specificity to justify such extraordinary relief. But she also wrote that their Appointments Clause claims have “serious implications,” and that “even Defendants concede there is no apparent ‘source of legal authority granting [DOGE] the power’ to take some of the actions challenged here.” Chutkan added that what Trump gave Musk “appears to be the unchecked authority of an unelected individual and an entity that was not created by Congress and over which it has no oversight.”
The legal heart of both lawsuits is the Constitution’s Article II Appointments Clause, which gives the president the power to “nominate, and by and with the Advice and Consent of the Senate … appoint … all other Officers of the United States … which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.”
Let’s unpack this. First, the Constitution says that “officers” — which the Supreme Court has read to mean “principal officers” who exercise “significant authority,” such as Cabinet-level department heads — must be nominated by the president but are subject to confirmation through the advice and consent of the Senate. Musk appears to have more power right now than any single Cabinet official, because he exercises power over a range of federal agencies and their thousands of employees. But he was neither nominated by the president nor confirmed by the Senate.
Second, the Constitution states that the position of “officer” in question must be established by the Constitution itself or “shall be established by law” — meaning through an act of Congress. Musk’s job is not created by the Constitution and Congress did not even create DOGE, let alone establish by law the role that Musk is now playing.
Third, the Constitution creates a lesser category of “inferior officer.” Even if Trump’s lawyers could manage to legitimately argue that Musk qualifies as “inferior” — a notion that fails the straight-face test — it wouldn’t help them get around the legal problems with Trump anointing Musk with unlimited power. The Constitution states that inferior officers must be, once again, created by Congress. Congress can give the president the power to appoint them if it wants to, but it has not done that here.
One of the disappointing — if not downright heartbreaking — aspects of the Trump-Musk takeover of government is that Congress is going along with it. Congress could defund the U.S. Digital Service and thus DOGE, although Musk likely will not miss his federal paycheck since he is forgoing it. Congress could also pass legislation specifically banning the Musk special government employee role and rolling back what he and his team have done.
At the very least, Congress could hold oversight hearings — which Democrats have demanded — to find out what the heck is even going on.
Or, as the Framers intended, Congress could begin impeachment proceedings on the rationale that dismantling the government as we know it violates the Constitution.
Every member of Congress takes an oath to “support and defend the Constitution of the United States against all enemies, foreign and domestic.” The failure of Republicans in Congress to do anything about Musk — anything at all — may prove to be the most colossal violation of that sacred oath in American history.
Kimberly Wehle is author of the new book “Pardon Power: How the Pardon System Works — and Why.”
