While it got attention for rebuffing attacks on U.S. AID, yesterday’s federal court decision did something far broader: it exposed the deep constitutional problems with DOGE, and Musk’s role leading its trail of destruction.
The opinion is a pretty common sense take-down of the entire Musk/DOGE operation, exposing it is a blatant end-around of basic constitutional protections. We can only hope other judges take the same approach to other actions DOGE and Musk are taking with respect to other federal agencies. Because the same logic applies.
But what you may enjoy the most about this decision is who the surprising star witness turns out to be…
Musk himself! With assists from Trump and his press secretary.
It turns out, with their non-stop tweeting and trash-talking about what they’ve been doing, the trio are hoisted on numerous petards. And quotes from them turn out to be the best evidence negating the DOJ’s desperate defense of DOGE’s unconstitutional actions.
I think you’ll enjoy seeing how…
The Appointments Clause
The Appointments Clause of the Constitution—U.S. Const. Art. II., Section, 2—provides that the President of the United States “shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the [S]upreme 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.”
So plaintiffs’ argument in this case was that Musk has been carrying out the functions of an Officer without having been appointed as one—and that that is a violation of the Constitution.
The DOJ tried to convince the court that this did not apply for several reasons.
First, the DOJ argued that decisions shutting down U.S. AID were not directed by Musk.
But these lawyers ran into one major problem: Musk has been tweeting about his dirty work every step of the way, leading the court to conclude: “based on the present record, the only individuals known to be associated with the decisions to initiate a shutdown of USAID by permanently closing USAID headquarters and taking down its website are Musk and DOGE Team Members. On February 2 and 3, Musk specifically stated about USAID on X that it was "Time for it die”…[and] that "we're in the process of ... shutting down USAID,"… and that he had "spent the weekend feeding USAID to the wood chipper….” On February 3, a DOGE Team Member announced to USAID personnel in an email that headquarters were going to be closed that day. Though the message stated that the action was done "(a]t the direction Agency leadership," …Defendants have failed to provide documentation, or even to claim, that any duly appointed USAID officer actually made this decision.”
Oooops.
In what we can only hope is a preview of future decisions, the court added “that Musk appears to have been involved in the shutdown of CFPB headquarters as well, and the evidence that shows or strongly suggests that Musk and DOGE, despite their allegedly advisory roles, have taken other unilateral actions without any apparent authorization from agency officials. Such actions include terminating key employees at USDA and NSA responsible for work on the bird flu outbreak and nuclear weapons who had to be rehired immediately, announcing and effectuating a sudden change in policy at FEMA that its former Chief Financial Officer has stated was not approved by agency leadership, and sending out an email requiring all federal employees to document their accomplishments for the week.”
Second, the DOJ tried to argue that Musk is not an Officer, but that he is “a non-career Special Government Employee who officially holds the title of Senior Advisor to the President,” and that Musk therefore did not need to go through the Constitutionally mandated appointment process...
The Court rejected that end-around—“to deny Plaintiffs' Appointments Clause claim solely on the basis that, on paper, Musk has no formal legal authority relating to the decisions at issue, even if he is actually exercising significant authority on governmental matters, would open the door to an end-run around the Appointments Clause. If a President could escape Appointments Clause scrutiny by having advisors go beyond the traditional role of White House advisors who communicate the President's priorities to agency heads and instead exercise significant authority throughout the federal government so as to bypass duly appointed Officers, the Appointments Clause would be reduced to nothing more than a technical formality.”
And to add weight to this finding, the Court once again relied on its best witness in the case—Musk himself, and his tweets:
“Musk's public statements and posts on X, in which he has stated on multiple occasions that DOGE will take action, and such action occurred shortly thereafter, demonstrate that he has firm control over DOGE. For example, on February 2, 2025, shortly after Musk promised on X that "DOGE] will fix it," referencing the National Weather Service internal employee website's description of DEI initiatives at the agency, DOGE posted that the language was removed….On February 7, 2025, shortly after polling X users on whether a DOGE team member who was fired for racist social media posts should return to the agency, Musk announced that the DOGE member "will be brought back."
The White House Press Secretary was also helpful on this matter, telling the world that “the president tasked Elon Musk to oversee the DOGE effort.” As was Trump, when he told Congress in his March 4 address that he had “created the brand new Department of Government Efficiency. DOGE.... Which is headed by Elon Musk.”
Add it all up, and the Court found that “Musk, without having been duly appointed as an Officer of the United States, exercised significant authority reserved for an Officer while serving in a continuing governmental position, the Court finds that Plaintiffs have demonstrated a likelihood of success on the merits of the Appointments Clause claim as to the decision to permanently close USAID headquarters.”
Separation of Powers
Next, the court concluded that the DOGE action to decimate U.S. AID also likely violated the separation of powers principles of the Constitution because only Congress can eliminate “USAID, a federal agency created by statute.” DOGE doing it “usurped Congress's authority to create and abolish offices.”
The court walks through the painful details of the take-down of U.S. AID to show that it has effectively been eliminated as an agency. But back to our theme, in case there was any doubt, Musk’s tweets once again provided critical proof:
“Throughout these activities, Musk has consistently framed them as part of the elimination of USAID. On February 13, 2025, Musk reposted a video on X in which he stated that "We need to delete entire agencies, as opposed to leave part of them behind."…. After the AFSA TRO was lifted on February 21, Musk agreed with the statement that "DOGE can now DISMANTLE USAID and declared that "the world will be better for this."…Indeed, on February 19, 2025, President Trump stated at a public event that "we have effectively eliminated the U.S. Agency for International Development…..
Taken together, these facts support the conclusion that USAID has been effectively eliminated.”
In doing so, DOGE “usurped the authority of the public's elected representatives in Congress to make decisions on whether, when, and how to eliminate a federal government agency.”
A violation of the Appointments Clause, and a violation of the Separation of Powers.
And Musk’s arrogance, ignorance and ego provided overwhelming proof of both violations.
Day 106 — March 18, 2025
Another day, another assault on an agency meant to be independent of presidential politics.
It happened with the FBI. It happened with the Chairman of the Joint Chiefs of Staff.
And now it’s happening with the Federal Trade Commission, a body that plays an important role in protecting American consumers and a healthy, competitive economy.
It’s a body whose commissioners are independent, and can only be removed for cause. But that didn’t stop Trump from, yesterday, attempting to fire two commissioners without cause.
If Trump were to succeed in ending the independence of the FTC, it would be a(nother) gift to monied interests seeking monopolies and bilking consumers. And it would open yet another opportunity for him to leverage his position for graft and corruption in exchange for how those monied interests are treated. And you know that’s exactly what he will do.
The good news is that while FBI Director Wray resigned rather than uphold the independence of that office, the two ousted commissioners are not complying in advance.
They are challenging the illegal act:
Good…that is the only acceptable response.
Here is more analysis of the FTC and the law involved.
