THE APPOINTMENTS CLAUSE AND DOGE—A BRIEF OVERVIEW AND ANALYSIS

THE APPOINTMENTS CLAUSE AND DOGE—A BRIEF OVERVIEW AND ANALYSIS

 

INTRODUCTION

Last week U.S. District Judge Chutkan, who seems to be the Trump and January 6th “duty judge” in the DC District Court, denied a temporary restraining order to fourteen (14) state Attorneys General who sought to enjoin the actions of the Department of Governmental Efficiency ( DOGE), citing “harm” to their states that was seen by the Judge as too speculative. However, never missing a chance to try to derail Trump and his agenda and having missed the opportunity to jail him, she laid out an advisory opinion that Elon Musk’s role and duties in the Executive Branch—the Office of the President—entailed a level of authority that required that he had to have been approved by the Senate. The effect of such a finding would be to invalidate actions taken to date or his removal if the Court formally so found. At this point there is no such finding. I believe she is wrong, and recent Supreme Court cases would, I believe, support my opinion that the level of supervision over his actions, at least, two levels of the Executive, along with his temporary service, would likely classify him and his team as exempt from that level of approval required for “Officers of the United States.”

 

BY THE VERY TERMS OF THE EXECUTIVE ORDER CREATING DOGE, IT IS LIKELY THAT AN APPOINTMENTS CLAUSE CHALLENGE TO MUSK WOULD FAIL

The Appointments Clause of Article II of the Constitution provides:

 

“[The President] shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the Supreme Court, and all other Officers of the United States whose Appointments are not herein otherwise provided for, and 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.”

 

On January 20th, 2025, the President created HIS Department of Government Efficiency as follows:

 

“Executive Order 14158 of January 20, 2025

Establishing and Implementing the President’s ‘Department of Government Efficiency’

• (b) Establishment of a Temporary Organization. There shall be a USDS Administrator established in the Executive Office of the President who shall report to the White House Chief of Staff. There is further established within USDS, in accordance with section 3161 of title 5, United States Code, a temporary organization known as ‘‘the U.S. DOGE Service Temporary Organization’’. The U.S. DOGE Service Temporary Organization shall be headed by the USDS Administrator and shall be dedicated to advancing the President’s 18-month DOGE agenda. The U.S. DOGE Service Temporary Organization shall terminate on July 4, 2026. The termination of the U.S. DOGE Service Temporary Organization shall not be interpreted to imply the termination, attenuation, or amendment of any other authority or provision of this order.
• (c) DOGE Teams. In consultation with USDS, each Agency Head shall establish within their respective Agencies a DOGE Team of at least four employees, which may include Special Government Employees, hired or assigned within thirty days of the date of this Order. Agency Heads shall select the DOGE Team members in consultation with the USDS Administrator. Each DOGE Team will typically include one DOGE Team Lead, one engineer, one human resources specialist, and one attorney. Agency Heads shall ensure that DOGE Team Leads coordinate their work with USDS and advise their respective Agency Heads on implementing the President’s DOGE Agenda.

Sec. 4. Modernizing Federal Technology and Software to Maximize Efficiency and Productivity. (a) The USDS Administrator shall commence a Software Modernization Initiative to improve the quality and efficiency of government-wide software, network infrastructure, and information technology (IT) systems. Among other things, the USDS Administrator shall work with Agency Heads to promote interoperability between agency networks and systems, ensure data integrity, and facilitate responsible data collection and synchronization.”

 

By its terms, the Order (only cited for its relevant portions above) transforms an existing Office within the Executive previously known as the United States Digital Service. It was formed in 2014 under the Obama Administration and has as its parent department, as currently configured, the Executive Office of the President as well as, importantly, the Office of Management and Budget. The Order as implemented does two important things in a determination of whether Musk and his team are operating contrary to the intent of the Appointments Clause;

 

• It establishes the temporary nature of the President’s DOGE initiative by establishing an end date to DOGE’s role of July 4th, 2026;
• It provides multiple levels of supervision over the actions of DOGE and Musk creating political accountability for his actions in the President as well as the Agency heads the DOGE teams also report to.

 

The United States Supreme Court has had occasion to define in broad terms who is an “inferior officer” subject to appointment without Senate advice and consent and “Officers of the United States,” who are, such as Cabinet members and other “permanent” members of the federal government. Officers of the United States must occupy a “continuing” position that is part of the federal government to require Appointments Clause Senate approval. Inferior Officers do not.

In the litigation before Judge Chutkan, Joshua Fisher of the Office of Public Administration filed a Declaration under oath that sets forth the following in defining Mr. Musk’s role:

 

• 1. Mr. Musk is an employee of the White House Office. He holds that position as a non-career Special Government Employee (SGE);
• 2. In that job, Mr. Musk is a Senior Advisor to the President. It is not uncommon for the President to have Senior Advisors who are SGEs. For instance, Anita Dunn was an influential Senior Advisor to President Biden while serving as an SGE;
• 3. Like other Senior White House Advisors Mr. Musk has no actual or formal authority to make government decisions himself. He can only advise the President and communicate the President’s directives;
• 4. Mr. Musk is not the DOGE Administrator or an employee of the U.S. DOGE Service…

 

I do not see how a reviewing Court could simply ignore these pronouncements unless, in practice, Musk has acted outside of the President’s directives or outside of the Agency heads who, in accordance with the Executive Order, deploy the DOGE Teams to implement the mandate to increase efficiency across the board. Both the Executive Order and this certification of Musk’s role are powerful and do not establish that Musk or others working as SGEs (Big Balls) are performing roles outside of the Article II framework.

In Edmond v. United States, 520 U.S. 651 (1997), the Supreme Court explained that an inferior officer must be “directed and supervised at some level by others who were appointed by Presidential nomination with the advice and consent of the Senate.” Applying that test to Coast Guard Court of Criminal Appeals judges appointed by the Secretary of Transportation, the Court held that the judges were inferior officers because they were effectively supervised by a combination of Presidentially nominated and Senate confirmed officers in the Executive Branch. Id., at 664-665, 117 S.Ct. 1573. What the Court in Edmond found “significant” was that those judges had no power to render a final decision on behalf of the United States unless permitted to do so by other Executive officers. The same holds true for Musk and company. They answer not only to the President but to each Agency head as well as the Director of the Office of Management and Budget, all of these are Executive Agencies under the Article II supervision and control of the President.

In United States v. Arthrex, 594 U.S. 1 (2021), the Supreme Court, comprised of most of its current Justices, doubled down on this notion of supervision and political accountability. It did so in the context of reviewing the role of Administrative Patent Judges appointed by the Secretary of Commerce. The Court’s view of the issue of supervision and authority is squarely within the parameters set for Musk and his advisory role;

 

“Today, we reaffirm and apply the rule from Edmond that the exercise of executive power by inferior officers must at some level be subject to the direction and supervision of an officer nominated by the President and confirmed by the Senate. In this way, the President remains responsible for the exercise of executive power—and through him, the exercise of executive power remains accountable to the people.

Under the Constitution, ‘[t]he executive Power’ is vested in the President, who has the responsibility to ‘take Care that the Laws be faithfully executed.’ Art. II, § 1, cl. 1; § 3. The Appointments Clause provides that he may be assisted in carrying out that responsibility by officers nominated by him and confirmed by the Senate, as well as by other officers not appointed in that manner but whose work, we have held, must be directed and supervised by an officer who has been. § 2, cl. 2.”

 

This holding is consistent with a long line of Supreme Court cases establishing that officers are distinguished from other individuals in the federal government by the extent of authority they can properly exercise. The Court has implemented this distinction by asking whether a “continuing” position exercises “significant authority.” Although DOGE’s recommendations to both the President and Agency heads have significant effect, they do not result from unfettered or unsupervised authority but take place in close connection with the Presidents directives and oversight. The Executive Branch has long recognized that employees occupying subordinate positions within the federal government who have not been directly vested with statutory or regulatory responsibilities, but who merely assist or act as the agents of superior officers vested with such responsibilities, need not be appointed as officers of the United States. This previous paragraph is verbatim from a January 16th, 2025 “MEMORANDUM OPINION FOR THE GENERAL COUNSELS OF THE EXECUTIVE BRANCH” generated before Trump was inaugurated. Musk and his role are as advisors to a President with an aggressive agenda to reduce government fraud, waste, and abuse and do what previous Presidents have lacked the will to execute. That Musk has the intellect and technical skills to properly assist the President in executing his mandate and directives effectively, doesn’t, in my opinion, elevate him to the status of Officer of the United States subject to Senate advice and consent. The significant effects of his advice alone should not define his level of authority.

 

CONCLUSION

For the foregoing reasons, and consistent with the Supreme Court’s modern jurisprudence, individuals must be appointed pursuant to the Appointments Clause ONLY if they (1) occupy a continuing position that is part of the federal government for constitutional purposes, and (2) exercise significant authority pursuant to the laws of the United States. A careful read of the Presidents enabling Executive Order establishes that the position is temporary and that there is no actual authority to implement the laws and directives of the United States on an unsupervised basis. Unlike his predecessors like Clinton who stated that they would substantially decrease the federal government’s size and inflated role in a system of federalism but lacked the political will to execute, Trump is prepared to assume political accountability for these bold moves in eliminating jobs and perhaps agencies. The executive may be constrained by separation of powers issues in some of this, but with respect to DOGE and Musk, the Appointments Clause should not be an impediment to the continuing work to draw down an out-of-control federal bureaucracy.

 

Mike Imprevento
February 24th, 2025