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.”
Pema Levy
In an extraordinary show of the power that Elon Musk now exercises over the United States government, last week he joined a cabinet meeting in which he delivered a tongue-lashing to Marco Rubio. On paper, Rubio is the Senate-confirmed Secretary of State, while Musk is a mere adviser to the president without any power. But according to an account of the meeting in the New York Times, Musk is the one who has been in charge. Rubio tussled with Musk in the meeting, reportedly angry that Musk and his DOGE team had essentially shuttered the US Agency for International Development (USAID) that is technically under Rubio’s control.
President Donald Trump reportedly called the meeting last Thursday to settle power struggles between Musk and the cabinet secretaries, and answer a question: who, exactly, is in charge? Ask Transportation Secretary Sean Duffy, who the Times says complained about DOGE’s push to lay off air traffic controllers as he tries to deal with multiple plane crashes. In the same meeting, Duffy reportedly told Musk that he had stopped the layoffs, an indication that Duffy remains at least partially in charge of his agency. Musk informed Duffy that he had his phone number and could call him if Duffy encountered any problems with what DOGE was doing. That sounds like Musk is in charge. According to the Times, Trump clarified at the meeting that Musk can no longer boss around cabinet members—an indication that for nearly two months Musk has had such power and, despite Trump’s new rule, may well continue to.
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.
The cases—including one from current and former USAID officials, one by multiple states (in which a district judge on Wednesday ordered the goverment to turn over documents as part of the discovery process), one filed by the nonprofit Campaign Legal Center on behalf of an array of nonprofits, and one by the head of the United States African Development Foundation—will force the Supreme Court, perhaps sooner rather than later, to decide whether the president can empower random people with vast discretion outside of any Congressional control. It’s a question that may prove tricky for the court’s GOP-appointed majority, which, while it has been steadily increasing the power of the president, usually justifies this empowerment by claiming it increases democratic accountability.
“If it turns out that, as Donald Trump has continuously said, Musk is actually exercising significant government power…that allows him to overrule or countermand cabinet level officers,” says Noah Rosenblum, a professor at New York University School of Law, “then there are definitely questions about what position he has been appointed to and whether the authority he is exercising is consistent with the method of appointment.”
As the cabinet meeting demonstrated, it’s not just litigants but also agency heads who believe Musk’s unfettered authority has become a problem. According to news reports, Musk’s own social media posts, the reports of other lawmakers, and even Donald Trump’s own words, Elon Musk is leading the Department of Government Efficiency. This so-called department is filled with Musks’ longtime loyalists, who for years have helped run his companies, as well as former interns from his companies, red-pilled young men now empowered to seize control of federal agencies. DOGE exerts its control, in part, by entering the sensitive payment systems of federal agencies, including the Treasury Department, Social Security Administration, and USAID, exercising a blueprint for a government takeover that Musk envisioned before Trump was even re-elected.
The ultimate question in these legal challenges is whether Musk is indeed fulfilling a position subject to the process laid out in the Appointments Clause. The Constitution requires officers to be nominated and confirmed; another class of inferior officer can simply be appointed by the president or other officials. But the administration contends that Musk is neither kind of officer, with government lawyers insisting in court that he is merely an employee and adviser. So the question becomes, is Musk truly wielding the kind of power we are all witnessing—a legal version of the Marx brothers line, Who are you going to believe, me or your lying eyes?
The Supreme Court has established multiple criteria for discerning which positions are inferior and which are non-inferior officers. One indicator that according to precedent can make someone a non-inferior officer—which the court calls a principal officer—is whether the role wields “significant authority” by, for example, “determining the eligibility of funds” and making decisions regarding contracts or purchases. Musk has that in spades.
To assess Musk according to this test, consider the case of USAID, and specifically, how DOGE overrode not just Congress’ spending power but also Rubio’s authority. First, Congress appropriated money for foreign aid. This appropriation is spending required by law. After the Trump administration attempted to unilaterally halt it, Secretary of State Marco Rubio, a department head confirmed by the Senate, announced that some humanitarian aid, including for HIV treatments in Africa, would proceed. USAID staff then prepared to distribute these funds.
But, according to an account in the Washington Post, this authorized funding was blocked by two young DOGE staffers through USAID’s payment system. At first, this process required them, as the Post reported, to “manually check boxes in the payment system one at a time, the same tedious way you probably pay your bills online.” Eventually, the DOGE bros seized control of the system entirely: “They became the only people who could even see the payments waiting to be approved. Hardly any of the essential funding promised by Rubio had been processed as of last week.” No wonder Rubio was pissed.
“Stopping payments from going through, that’s executive power,” says Shugerman. “That’s why he’s a principal officer.”
As part of the public clean-up effort after the Cabinet meeting, Commerce Secretary Howard Lutnick took the latest talking points to NBC’s “Meet the Press” on Sunday. When asked whether he or Musk runs his agency, Lutnick wouldn’t confirm that he was in charge. “Elon Musk is your partner,” he said. “He’s your partner in technology, he’s your partner in thought, he’s your partner in doing. What President Trump made clear, is that Elon is your partner.” Lutnick was confirmed by the Senate. His partner was not.
The courts will eventually decide if Musk is an employee, an inferior officer, or a principal officer; a finding he is either type of officer would raise constitutional problems, because his position was not created by Congress.
The Supreme Court has offered guidance on how to make this determination, including in recent cases handed down under Chief Justice John Roberts. In 2018, the court held in Lucia v. SEC that the Securities and Exchange Commission was wrong to insist its administrative law judges were employees, finding that they were instead officers subject to the Appointments Clause. The case reaffirmed that no matter the job title of an employee, courts can assess that their role is that of an officer subject to the Appointments Clause.
“If you act like a principal officer, and you walk like a principal officer, you quack like a principal officer, that is exactly how the Roberts Court has analyzed being a principal officer,” says Shugerman.
In 2021, Chief Justice John Roberts penned the decision in United States v. Arthrex, a case concerning administrative patent judges within the Commerce Department. The ruling held that the decisions of inferior officers cannot be binding, but must be reviewable by principal officers. Roberts’ clear goal in this opinion was to consolidate decision-making authority directly under the president and those who report to him, eliminating independent authority within the executive branch. In this way, it was an effort to realize the theory of the unitary executive, the idea, popular in conservative legal circles, that all executive power belongs to the president alone. Trump is now relying upon unitary executive theory to back his decisions to remove commissioners across the government and take over the decision-making of independent agencies. If Arthrex‘s holding on the Appointment Clause becomes a vehicle for reining in Musk, it would be an ironic consequence of an effort by the court’s conservatives to empower the president.
Roberts has argued that consolidating power under the president boosts democratic accountability. “It’s the idea that the government needs to be organized in such a way that the people know who to blame for what it does, and that the democratic legitimacy that inheres in the presidency can be connected to all of the acts that the government does,” explains NYU’s Rosenblum. Roberts is explicit about this in Arthrex: the power of government officials “acquires its legitimacy and accountability to the public through ‘a clear and effective chain of command’ down from the President, on whom all the people vote,” the chief justice wrote.
But this idea of a clear chain of command underpinning the legitimacy of executive branch actions “only works,” Rosenblum warns, “if the people who are actually exercising government power have been publicly appointed to their positions by the president of the United States, and if there’s a clear understanding of what authority they exercise, and the public is able to scrutinize the authority they exercise, and the president is responsible for having explicitly placed that authority in the people who exercise it.” That doesn’t sound like Musk.
“What’s at stake in the Appointments Clause cases in general is this question of presidential responsibility—and what’s at stake in this question of what authority Elon Musk is exercising is actually the same principle of democratic responsibility,” Rosenblum continues. “Is the President of the United States running the government? Or some unaccountable private citizen with opaque responsibilities who has no democratic mandate—is that person the one who’s really the president and really running the government?”
Not only does Musk’s current role fail the logic of Roberts’ opinions justifying the unitary executive theory, it also fails the practical tests of the Roberts courts’ decisions reaffirming that anyone who exercises significant authority is an officer, and that inferior officers’ decisions must be reviewable by a principal officer. If the Supreme Court were to ultimately greenlight Musk’s position directing DOGE, it would take significant contortions on the part of Roberts and most of his GOP-appointed colleagues. It would create the absurd result that a decision over a patent requires reviewability by a superior officer but the decision to gut an agency created by Congress—despite opposition from the department’s head—does not. Put another way, it would mean a patent judge near the bottom of the Commerce Department’s organizational chart is an officer, but the guy acting as a “partner” to the Secretary of Commerce in “technology,” “thought,” and “doing,” in the words of the current commerce secretary, is a mere employee.
The Appointments Clause was not dropped into the Constitution without significant thought, and it’s no accident its become a vehicle to stop Musk and DOGE—because that is why it’s there in the first place.
In crafting the Constitution, the Framers were fearful of recreating what they saw as the pervasive corruption in the British system they had overthrown—not just a monarchy, but one in which the parliament’s power had been curbed by the handing out of official titles. The situation meant that rather than check the king, members of parliament had joined his payroll. “I admire many parts of the British constitution and government, but I detest their corruption,” George Mason said in Philadelphia in 1787. “Why has the power of the crown so remarkably increased the last century? A stranger, by reading their laws, would suppose it considerably diminished; and yet, by the sole power of appointing the increased officers of government, corruption pervades every town and village in the kingdom.” During the 18th century, as University of Maryland economic historian John Joseph Wallis explained to me, “about half of the members of parliament were on the payroll of the king in various ways.”
Zephyr Teachout, the constitutional scholar, argues the Framers were “obsessed with corruption,” which they saw as perhaps the fledgling nation’s greatest threat, and defending against it infused the entire Constitution. The Appointments Clause was no exception. As one convention delegate later recalled, the “power of appointing to office was brought down by placing a part of it in the Legislature.” This, Teachout says, combined with a prohibition on members of Congress simultaneously holding an executive branch office, addressed the “avenues by which corruption was most likely to enter.”
Musk, in his amorphous and all-powerful role, is a throwback to just the kind of situation the Framers sought to avoid. “In the 1700s, the king appointing somebody like Musk would not at all be unusual,” says Wallis. “The political development of both the United States and Britain at the end of the 18th and beginning in the 19th century was essentially, ‘We can’t run the government this way anymore,’ Parliament saying or Congress saying, ‘No, you can’t just appoint whoever you want to do whatever you want.’”
“If Trump gets away with doing this,” Wallis adds, “we’re going back to the 18th century.”
The Supreme Court has already made many moves that place the president above the law, including its decision last year to exempt him from almost all criminal prosecution. In a series of cases, including Arthrex, the Roberts court has helped to consolidate presidential power over federal agencies. The legality of Musk’s appointment is bound up in these questions, but also challenges the Supreme Court to disregard its own stated justification for these changes. “The most important, powerful offices need to be confirmed by the Senate, and checks and balances is a central part of this entire vision,” says Rosenblum. “The two ways in which accountability happens, according to the Supreme Court, are election of the president and the need for the most powerful, important offices to be confirmed by the Senate.”
But Musk and DOGE present a monarchical option that sidesteps those underlying principles. “The DOGE-like model of governance undermines the constitutional vision of accountability that the Supreme Court has elaborated by breaking these chains of command and eliminating the checks and balances that the Supreme Court has said are central to the structure of government,” says Rosenblum.
This sounds like the corruption that the Framers sought to ban in their new constitution—not just the corruption of profit-seeking officials but the corrupting of our Constitution’s very structure.
