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Elon Musk’s growing influence within the federal government has ignited debate, with detractors alleging that he is exercising unregulated executive power that contravenes the U.S. Constitution.
In contrast to President Donald Trump, Musk is seen as a trusted advisor and appointed deputy, leading a legally sanctioned but unconventional initiative aimed at downsizing federal agencies.
Currently, two lawsuits are contesting the legality of Musk’s de facto leadership at the Department of Government Efficiency (DOGE), with federal courts (and possibly the Supreme Court) poised to decide if his role adheres to the Constitution’s appointments clause.
Legal experts indicated to ABC News that these cases could potentially hinder Musk, temporarily reversing the changes he appears to have implemented regarding federal agencies, properties, staffing, and policies. However, the outcome remains uncertain.
What The US Constitution States
The appointments clause in the U.S. Constitution stipulates that the president can appoint officials such as ambassadors, Cabinet secretaries, and Supreme Court justices, but only “by and with the advice and consent of the Senate” following a confirmation vote. Musk has never undergone such confirmation.
The clause also permits the president to appoint “inferior officers” without Senate approval, provided that Congress has explicitly sanctioned those positions through legislation. Nonetheless, Trump established the Department of Government Efficiency (DOGE) via executive order, circumventing Congress.
“Musk clearly reports solely to Trump. Reporting only to the President while wielding extensive power effectively defines a principal officer, thus requiring Senate confirmation,” stated James Sample, a constitutional law expert at Hofstra University.
The White House has claimed that Musk operates as an unpaid “special government employee,” a designation created by Congress in 1962 for temporary executive branch hires, limited to specific duties for no more than 130 days.
Lawsuits Against Elon Musk
However, the plaintiffs in the lawsuits challenging Musk, a coalition of 14 states along with a group of two dozen federal civil servants, assert that he has, in reality, been acting as an “officer of the U.S.” and exercising authority that far exceeds that of a mere employee.
The lawsuits allege that Musk has had a direct hand in agency spending, contract decisions, government property, and regulatory actions while also gaining access to extensive sensitive government data.
“Given Musk’s extensive access, authority, and independence, any claim that he is merely operating as an employee under the designation of ‘special government employee’ is simply not credible,” remarked James Sample.
In a 1976 ruling, the Supreme Court defined an “officer of the U.S.” as a presidential appointee who exercises “significant authority pursuant to the laws of the U.S.” Over 20 years later, the late conservative Justice Antonin Scalia reinforced this definition, insisting that officers must be either confirmed by the Senate or accountable to someone who has been.
The administration has also presented a novel legal argument, suggesting that the president enjoys nearly unfettered authority to appoint and dismiss anyone within the executive branch.
“With a strong team by their side, we will scrutinize government expenditures to ensure accountability to American taxpayers,” stated White House press secretary Karoline Leavitt last month, defending Musk’s advisory role.
Some legal scholars propose that the ambiguity surrounding Musk’s precise role behind the scenes could complicate challenges to his position in court.
Legal experts express that the cases contesting Musk’s appointment are still in their early stages and may take months to resolve. Regardless of any ruling, the practical impact might be limited.
James Sample suggested that should a court find Musk qualifies as an “officer of the U.S.” necessitating Senate confirmation, the White House might retroactively legitimize his actions through another senior official or swiftly seek Senate confirmation from the GOP-controlled body.
“I suspect that the administration is strategically calculating that Musk is more or less immune to repercussions short of imprisonment,” Sample noted. “Even if they falter in court, the real-world implications of these disruptions will still be significant. The president tends to think in transactional rather than constitutional frames. This approach has long-lasting implications that reach far beyond any single presidency.”
