Elon Musk, DOGE, and the Appointments Clause

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Elon Musk and the newly created Department of Government Efficiency (DOGE) have been freezing federal spending and laying off federal employees, raising constitutional questions about the scope of its power. At the heart of the debate is the Appointments Clause in Article II of the Constitution.

Some argue that Musk and DOGE are acting within their authority, while others contend they lack the necessary authority to execute such measures because Musk was not appointed by the president or confirmed by the Senate, as required for principal officers of the United States.

Does Musk have the legal authority to take these actions without Senate confirmation? And does DOGE’s existence comply with constitutional limits on executive power?

Media Asset

In this clip from the We the People podcast, Kate Huddleston, senior legal counsel of litigation at the Campaign Legal Center, and Michael McConnell, Richard and Frances Mallery Professor and director of the Constitutional Law Center at Stanford Law School, discuss whether Musk and DOGE’s actions are lawful through the lens of the Appointments Clause in Article II of the U.S. Constitution.

Discussion Questions for Students

1. The Appointments Clause can be found in Article II of the Constitution, which outlines the powers of the Executive Branch. What does that clause say about the appointment process?
2. What argument does Kate Huddleston make about DOGE’s scope of power in relation to the Appointments Clause?
3. What argument does Michael McConnell make about DOGE’s scope of power in relation to the Appointments Clause?
4. Considering the commentary from the scholars regarding the functionalist versus formalist approach to these questions, how might these arguments be used in the Court’s interpretation of the Appointments Clause relative to this case? Note: A formalist approach emphasizes a strict, text-based reading of the Constitution. A functionalist approach, in contrast, considers the practical consequences and the broader purpose of constitutional provisions when interpreting them.
5. How does this case highlight the separation of powers when Congress delegates authority to an executive branch agency that it creates? What are the constitutional questions on that delegation of powers?

Select an Optional Student Activity for Deeper Exploration

1. Create a Venn diagram that highlights the unique arguments of each scholar and shows where their arguments overlap.
2. Annotate the Appointments Clause. Then, using evidence from the scholars’ arguments and your understanding of the Appointments Clause, write a concise two-paragraph argumentative essay or synthesis defending your response to the questions: Does Musk have the legal authority to take these actions without Senate confirmation? And does DOGE’s existence comply with constitutional limits on executive power? (Note: Elon Musk serves as a senior adviser to President Trump. Historically, presidents have utilized informal advisers to influence policy without official appointments. DOGE serves as an advisory body within the executive branch.)
3. Create a meme or constitutional cartoon that captures the debate over DOGE and the Appointments Clause. Make sure multiple perspectives are represented.

Dig Deeper on this Content with Additional Resources

Historical Foundations Through Primary Sources

1. Appointments Clause of the Constitution
2. Woodrow Wilson’s Constitutional Government in the United States (1908)
3. Morrison v. Olson (1988)

Develop Constitutional Thinking Skills with Current Events

1. Interpretations of the Appointments Clause (Interactive Constitution essays)
2. What are some key constitutional debates over the administrative state? (Khan Academy Constitution 101 student video)
3. The Constitution and the Administrative State (America’s Town Hall video)
4. Is DOGE Breaking the Law? (We the People podcast)
5. The President’s Power to Make Recess Appointments (We the People podcast)