[KY] Does DOGE violate the appointments clause? [US con law/admin law]
Is Musk an officer of the United States? If so, a principal officer or inferior officer? If he's an inferior officer, who is he subordinate to? It feels kind of hard to analyze because his role is so informal (officially just within the White House) but he doesn't seem to be behaving like somebody who just gives advice to Trump. I don't really know what to call it when a wrecking crew of unconfirmed and unelected amateurs seemingly accountable to nobody is bossing around agency heads and mass-messaging using their letterhead.
Also how would you go about challenging this is an improper appointment? Assuming he is even an officer. The DOGE website is literally just a black page with a dollar emoji. Still, it's a serious and non-rhetorical question. How would you describe his powers? Does he have authority to use them?
Edit: I didn't really try to hide my politics but there were some good responses here coming from across the divide. Several of you pointed out that Musk is performing an advisory role and that DOGE succeeds the US Digital Service as a temporary organization. There was some discussion on what defines an policy advisor and how previous administrations have blurred the lines between exercising legal authority and policy coordination from the White House. A lot of the actual facts about what actions Musk has taken appear to remain a little mysterious.
I'll point out some additional resources I came up with.
There was some confusion about whether DOGE through access to the Treasury payments system stopped payments to federal contractors. Musk apparently claimed he was shutting down payments, naming Lutheran Social Services as a recipient of funds from HHS, but Trump has now clarified that Musk requires his authorization to stop payments. https://www.bloomberg.com/news/articles/2025-02-03/trump-says-musk-sees-treasury-payments-but-can-t-stop-them-alone. Some of you suggested that Trump may also lack authority to stop such payments, but I don't really have anything to summarize or add about that, or about the rescinded executive order freezing grants and loans from last week.
Kind of suggests to me some legal advisor of Trump was aware of the issue, brought it to his attention, and told him to make a statement, but maybe he just wanted to be in the loop.
As far as the legal issues related to when a policy advisor becomes an officer of the United States, here are some resources.
Buckley v. Valeo (1976) (https://www.oyez.org/cases/1975/75-436) (holding that solely legislatively appointed FEC members were officers who must be appointed by the President with advice and consent of Senate owing to their significant authority to initiate civil actions under the FECA).
Edmond v. United States (1997) (https://www.oyez.org/cases/1996/96-262) (holding that status of civilian judges in Coast Guard court of criminal appeals was that of inferior officers because they were supervised by the DOT General Counsel and their decisions reviewable by the court of appeals of the Armed Forces).
There was a tangential discussion about Acting Directors which cited to the Vacancies in Office Act 5 U.S.C. § 3345 (https://www.law.cornell.edu/uscode/text/5/3345). I felt this CRS report had a fine overview of open constitutional issues for vacancy appointments (https://sgp.fas.org/crs/misc/R44997.pdf).
I enjoyed this 2009 student note from the Cornell Journal of Law and Policy about the practice of appointing policy czars, which discusses potential appointment clause issues. https://ww3.lawschool.cornell.edu/research/JLPP/upload/CJP106-Sholette.pdf
There was some controversy about the position of Kenneth Feinberg as "pay czar" for TARP in the first Obama administration, dicussed in the note. Related, a lot of conservatives raised hackles about the constitutionality of this appointment: https://fedsoc.org/commentary/publications/the-pay-czar-the-appointments-clause-a-forum
Also includes a flashback to Van Jones' career and fleeting appointment as "Green Jobs Czar."