Elon Musk’s Two Battles Contradict Themselves
With more power comes more legal vulnerability.
The Trump administration’s Department of Government Efficiency (DOGE) — after several delays — has finally posted its “Wall of Receipts,” an accounting of all the money it claims to have saved for the U.S. government.
The itemized list is here, including hundreds of canceled news subscriptions, real estate contracts, and diversity, equity, and inclusion (DEI) programs. In total, DOGE says that it is responsible for around $55 billion in savings.
Upon further inspection, the claim does not hold up to scrutiny. As Bloomberg notes, the savings claimed on DOGE’s own website only add up to $16.6 billion. In addition, the largest savings the initiative claims are for canceling an $8 billion contract for “program and technical support services” at the Immigration and Customs Enforcement (ICE) Office of Diversity and Civil Rights. However, that contract was for $8 million, not $8 billion.
Suddenly, we’re down to $8.6 billion in recorded savings, or 0.47% of the $1.8 trillion budget deficit the government recorded last fiscal year. (‘“Let’s balance the budget!” the website says.) And that’s assuming that all the savings DOGE claims are actually due to DOGE. Just scrolling around the website this morning, I noticed that it boasted $544,991 in savings from the closure of an office for a former president in Atlanta, Georgia.
Further research on the General Services Administration website confirmed that the square footage of the office matched the one that belonged to former President Jimmy Carter. Presumably, Carter’s post-presidential office is being closed because Carter died in December, not because of anything done by DOGE.
It should also be pointed out, as NOTUS does here, that even the true “savings” aren’t really savings, in the sense that none of them will go back to taxpayers or be used to pay down the debt. “Under the process for appropriating federal dollars, the funds are likely still sitting in government agencies’ coffers,” NOTUS writes, since agencies have to use the funds appropriated to them by Congress unless Congress allows otherwise.
No matter the actual amount of savings, the point of the website is clear: to (try to) prove that DOGE is working, that the initiative is succeeding in cutting government costs and taming the overgrown bureaucracy.
But, at the same time, Trump administration lawyers are engaged in a very different battle — proving DOGE’s constitutionality — that could hinge on waging the exact opposite case: arguing that the initiative has gotten done even less, not more, than people think.
14 Democratic-led states filed a lawsuit last week alleging that Elon Musk’s “seemingly limitless and unchecked power” — through his position at DOGE — “to strip the government of its workforce and eliminate entire departments with the stroke of a pen or click of a mouse” represent a violation of the Constitution.
Why? Because “Mr. Musk does not occupy an office of the United States and has not had his nomination for an office confirmed by the Senate,” the lawsuit says.
That’s a reference to Article II, Section 2, Clause 2 of the Constitution, otherwise known as the Appointments Clause, which says:
[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.
But when is someone an “Officer of the United States” requiring Senate confirmation, and when are they an “inferior Officer” who can be appointed without Senate approval?
The best clues we have come from the Supreme Court’s 1976 case, Buckley v. Valeo, which is best known as a landmark campaign finance ruling. In that case, the court ruled that “officers” (or “principal officers”) are appointees who exercise “significant authority pursuant to the laws of the United States.” And “inferior officers” are appointees who work under their supervision, advising “principal officers” or carrying out their orders.
This divide became a particular point of controversy during the Obama administration, when the president appointed a long list of “czars” (e.g. a “border czar,” an “AIDS czar,” etc.) who seemed to boast not just advisory, but decision-making, authority, even though many of them were never confirmed by the Senate.
At the time, both Democratic and Republican lawmakers pushed back, but no legal challenge was ever brought. In the decades since Buckley, even as the power of unconfirmed White House staffers has ballooned, the courts have offered little guidance on when an appointee is considered to be wielding “significant authority.”
In the DOGE case, the Democratic state attorneys general claim that Musk’s powers have gone above that threshold.
Musk has “engaged in a constellation of powers and activities that have been historically associated with an officer of the United States, including powers over spending and disbursements, contracts, government property, regulations, and agency viability,” they write.
Suddenly, the popular vision of DOGE — at times, advanced by Trump and Musk themselves — as a band of Musk-led vigilantes marching through government, slashing costs and taking names, could become a legal vulnerability.
In order to alleviate the appearance of Musk wielding “significant authority,” Trump administration lawyers have been forced to downplay Musk’s stature in court. In fact, in a court filing, White House official Justin Fisher attested that Musk is not even the head of DOGE, despite Trump repeatedly referring to him as such.
Rather, Musk is a special government employee and a Senior Advisor to the President, a title held by people like Karl Rove in the Bush administration and Valerie Jarrett in the Obama era. Like them, Fisher said, Musk operates as an employee of the White House Office, not as an employee (much less a manager) at DOGE.
“Like other senior White House advisors, Mr. Musk has no actual or formal authority to make government decisions himself,” Fisher added. “Mr. Musk can only advise the President and communicate the President’s directives.”
An additional filing by Justice Department lawyers further clarified that DOGE lacks “the power to order personnel actions” at federal agencies, only to advise them, pushing back on allegations made by the states that brought the case.
U.S. District Judge Tanya Chutkan, an Obama appointee who oversaw Trump’s January 6th case, is the judge in this case as well. On Tuesday, she rejected an immediate request from the state attorneys general, who had asked her to temporarily block Musk and DOGE from accessing data or making personnel decisions at seven federal agencies.
However, while writing that the immediate relief they sought was not proper “at this juncture,” Chutkan suggested that the states mounted a “strong merits argument” — signaling openness to their broader case.
“Musk has not been nominated by the President nor confirmed by the U.S. Senate, as constitutionally required for officers who exercise ‘significant authority pursuant to the laws of the United States,’” Chutkan wrote. “Bypassing this ‘significant structural safeguard of the constitutional scheme,’ Musk has rapidly taken steps to fundamentally reshape the Executive Branch.”
The states “legitimately call into question what 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,” she continued.
Chutkan also warned the administration against falsely downplaying DOGE’s role. Citing the executive order creating the initiative, she appeared dubious of the White House claim that DOGE has no powers over federal personnel. “Defense counsel is reminded of their duty to make truthful representations to the court,” the judge wrote in an ominous footnote.
Elon Musk is currently waging two battles: one in the court of public opinion, to seem as powerful and effective as possible — and one in actual court, premised on making him seem like a mere adviser lacking “significant authority.” Only one descriptor can be true; whichever one judge decide is accurate could determine whether Musk’s role is ultimately deemed constitutional.
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The day ahead
President Trump will travel from his Mar-a-Lago resort in Palm Beach, Florida, to his Trump National Doral Miami golf club in Miami, Florida, where he will spend much of the day. Then, he will attend a tech summit in Miami hosted by Saudi Arabia’s sovereign wealth fund, before returning to the White House. While on Air Force One, he will sign executive orders.
The Senate will vote on confirmation of former Sen. Kelly Loeffler (R-GA) to be Administrator of the Small Business Administration (SBA).
The House is out for the week.
The Supreme Court has nothing on its schedule.
Really interesting overview. Trump's lack of a filter will continue to be his biggest liability with the courts. He leaves quite the digital trail on his personal social media site and in conversations with media, making it difficult to claim he was misunderstand in his comments about Musk and DOGE.
I do think presidents of all political persuasions need to take care with these appointees that do not receive Congressional review/vote. It sets a precedent with possibility serious consequences.
And Musk's lack of understanding/arrogance about the real work of the federal government is wrecking havoc. His latest act of incompetence -- firing workers at the USDA tasked with combating H5N1 -- follows firing nuclear weapons workers in a decision that puts communities at real risk. THAT needs the attention of the media. Stat.
Hi Gabe. Enlightening as always. Does anyone know how many Musk minions are attached to DOGE? What are their qualifications? How are they paid and how much? Are they paid by the government or by Musk? Where are they based? Is there any publicly available info about these vandals?