From The Center Square
ByĀ Morgan Sweeney
The Trump administrationās all-of-Washington shake-up has resulted inĀ hundredsĀ of lawsuits and cries of a “constitutional crisis,” with Elon Muskās Department of Government Efficiency at the heart of many complaints from Democrats.
Critics of the department say its on shaky legal footing and have questioned whether Muskās role violates the U.S. Constitution, as higher-ranking government officials often must be appointed by the president and confirmed by the Senate. The White House has maintained that, despite Musk being the public face of the department and seemingly directing its activities, he is only a “special government employee.” As such, he isnāt subject to a Senate confirmation.
But legal experts disagree on Musk’s role and authority within the federal government.
The Pacific Legal Foundationās Michael Poon works for the foundation’s separation of powers practice group. Now that the White House has revealed the identity of the DOGEās administrator asĀ Amy Gleason, a healthcare technology executive who served under Presidents Donald Trump and Joe Biden, Poon likened Muskās role to that of a “DOGE czar,” or even the presidentās chief of staff ā neither of which are senate-confirmed positions. Because Musk isnāt the departmentās administrator, he doesnāt seem to have any formal authority, according to Poon.
āAgency heads have the power to ignore him because he doesnāt actually have formal power himself,ā Poon continued, ābut they probably listen because Musk is understood to have the presidentās confidence,ā similar to other positions Poon mentioned, including Trump’s border czar, Tom Homan, who also isn’t Senate confirmed but works side by side with the Department of Homeland Security. whose secretary, Kristi Noem, is Senate-confirmed.
āThis kind of arrangement makes Musk informally powerful, but the power comes from the expectation that the president would back him, not any power that is, sort of, inherent in his position,ā Poon said.
While Poon doesnāt think Muskās role violates any constitutional requirements, he does appreciate the sudden interest the public is taking in the role of unelected federal officials in general. But since their function in the federal government has developed over many decades, itās unlikely that anything resulting from the DOGE-Musk controversy would go very far in solving the problem.
āItās appropriate to be scrutinizing of unelected officials and the power that they wield,ā Poon said. āBut itās a concern that has been put to the side for the last hundred years, over which both major parties have worked to weaken these protections against unelected officials.ā
If Americans want less power and more guardrails for unelected officials, it will take time to achieve, according to Poon.
āI donāt think that, as the current case law stands, Elon Muskās role contravenes the Constitution, but if we think those protections should be strengthenedā¦Ā thatās something that takes a concerted effort and it canāt vary depending on who is in control of the executive branch,ā Poon said.
Thomas Berry, director of the Cato Instituteās Robert A. Levy Center for Constitutional Studies, finds the lack of transparency around DOGE and Muskās role troubling.
āI think thereās very serious concerns about what exactly is happening with DOGE,ā Berry said.
A lot of concerns with DOGE have to do with the Appointments Clause, which is the basis for Senate confirmations of presidential appointees and creates a system of accountability.
āThe Appointments Clause of the Constitution says that the finalĀ decision makerĀ on a lot of issues needs to be either the president or someone appointed by the president and confirmed by the Senate,ā Berry said. āWhen the public perception is that Musk or anyone whoās not Senate-confirmed is making these decisions, you donāt have any elected person to blame.ā
Even if the administration were to eventually reveal that the president approved all of Muskās actions, the lack of transparency now is problematic for the public, according to Berry.
As for questions about Trumpās authority to establish DOGE and Muskās role within it, President of the Liberty Justice Center Jacob Huebert thinks theyāre unfounded.
āArticle II of the Constitution gives all executive power to the president,ā Huebert said. āAs long as the president has ultimate decision-making authority here, I donāt see any problem with that.ā
He applauds what he sees as Trumpās revision of the executive branch, bringing it closer to what it was intended to be.
āItās the president deciding how the executive branch is going to run, which is very much the opposite of how it has long been run, where the bureaucracy is kind of leading things even though the bureaucracy doesnāt have any constitutional authority whatsoever,ā Huebert said.
As far as Trumpās efforts to cut government spending through DOGE, Huebertās unsure how it will play out, though he thinks itās a valiant aim. The Constitution grants Congress power over the governmentās purse, and some lawsuits are challenging the presidentās attempts to cut spending that Congress has already appropriated. Even if DOGE were able to get federal agencies to cut their budgets and the courts ruled in their favor, Huebert thinks it will be difficult to motivate Congress to pass significantly smaller budgets.
āThat to me seems like the biggest challenge for DOGE if part of the goal is to cut spending because Congress really likes to spend, including most of the Republicans in Congress, and the reasons that theyāve had to spend so much money have not gone away,ā Huebert said. āAll the incentives to spend, or most of them, are still there. So I donāt know how Trump or Elon Musk, if they want to bring it under control, can bring it under control.ā