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, join Jeffrey Rosen to debate whether the newly created Department of Government Efficiency (DOGE) has acted lawfully in firing federal workers and freezing federal spending.
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Today’s episode was produced by Samson Mostashari and Bill Pollock. It was engineered by Bill Pollock. Research was provided by Yara Daraiseh, Gyuha Lee, and Samson Mostashari.
Participants
Kate Huddleston is the senior legal counsel of litigation at the Campaign Legal Center. Before joining CLC, Huddleston worked in impact litigation at the ACLU in Texas and Arizona, focusing on immigrants' rights issues, and at an environmental nonprofit. She clerked for Judge Stephen Reinhardt of the Ninth Circuit Court of Appeals and Justice Goodwin Liu of the Supreme Court of California. Huddleston is a graduate of Yale Law School and Princeton University.
Michael W. McConnell is the Richard and Frances Mallery Professor and director of the Constitutional Law Center at Stanford Law School, and a senior fellow at the Hoover Institution. From 2002 to 2009, he served as a circuit judge on the United States Court of Appeals for the 10th Circuit. His book, The President Who Would Not Be King: Executive Power Under the Constitution, was published in 2020. His latest book, co-authored with Nathan Chapman, Agreeing to Disagree: How the Establishment Clause Protects Religious Diversity and Freedom of Conscience, was published in 2023. McConnell has argued 16 cases in the United States Supreme Court, and is co-chair of Meta’s Oversight Review Board.
Jeffrey Rosen is the president and CEO of the National Constitution Center, a nonpartisan nonprofit organization devoted to educating the public about the U.S. Constitution. Rosen is also professor of law at The George Washington University Law School and a contributing editor of The Atlantic.
Additional Resources
- Campaign Legal Center, Complaint for Declaratory and Injunctive Relief, U.S. District Court for the District of Columbia (March 3, 2025)
- Michael McConnell and Laurence Tribe, “Is Musk’s DOGE Dodging the Law?,” Open to Debate (March 7, 2025)
Excerpt from interview: Michael McConnell argues that DOGE only advises, while agency heads hold the legal authority.
Michael McConnell: Let's be really clear about what's going on here. The DOGE people recommend various changes to the agency head and then they claim, and then the agency head is the person who actually puts them into effect. Then, of course, on Twitter or X or in press statements, Musk and DOGE and the White House claim credit for that. They say DOGE did something, when in fact what DOGE did is DOGE found, uncovered what was going on and made the recommendation that the person with authority to do it do it. And there have been mistakes which, to Musk's credit, they've admitted that there have been some mistakes. But that doesn't actually, you know, the fact that on X they claim credit does not mean that they actually have legal authority. And that's all that the courts are going to care about as to what the Supreme Court is going to do. There has never been a case Morrison v. Olson with all respect, Jeff, Morrison v. Olson has nothing to do with this. There has never been a case in the Supreme Court where anyone has ever claimed that an advisor to the President has to go through advice and consent, even though he has no statutory authority.
The Appointments Clause is about offices, and offices are vested by Congress with statutory authority. They have nothing to do with White House people who have significant influence. White House Chief of Staff doesn't go through the Appointments Clause, but surely that person has significant authority. That person can pick up the phone and tell the Secretary of HUD what the President wants and it's going to happen. But that is not what the Appointments Clause is about. It would be astonishing for the Supreme Court to get involved in that.
Excerpt from interview: Kate Huddleston argues that Mr. Musk and DOGE lack legal authority to exercise powers reserved for government agencies.
Kate Huddleston: I would note that EPA claims are ordinary when agencies act in excess of statutory authority, when agencies act in an arbitrary and capricious manner. There are EPA claims in other cases challenging actions by, for example, the Office of Personnel Management, right now challenging other actions by other government agencies. What Professor McConnell is referring to about channeling is something that happens for federal employees. But our plaintiffs are instead individuals who have been harmed by agency action but are not themselves employed by the federal government. And so the EPA claims challenging the agency's actions in implementing Mr. Musk and DOGE's actions are entirely appropriate in this context. And that really brings us to the ultra vires claim, which I think is in some ways the heart of the lawsuit. It is that Mr. Musk and DOGE are operating without any lawful authority so there is no statute that authorizes Mr. Musk or DOGE's actions. There is no lawful authority, no legal authority for Mr. Musk or DOGE to direct cuts to the federal budget and federal spending. There's no authorization for them to terminate federal grants and contracts, and there's no authorization for them to direct the termination of federal employees.
Again, all of this factually speaking, we have alleged in our complaint and we describe in our complaint how Congress has instead allocated the authority that Mr. Musk and DOGE purport to exercise to other parts of the government. So for example, the Office of Personnel Management has control over personnel management in the federal executive branch. The Director and the Deputy Director of the Office of Personnel Management, those are both Senate confirmed positions. Those are both positions that Congress has created and that require Senate confirmation. And this is an important part of our government right that Congress has set up this office separate and apart from other portions of the executive branch. Congress has created executive departments, executive agencies. This is one of them. And I think the Office of Personnel Management is a really good example of why not losing sight of Congress's role in all of this, including in executive departments and agencies within the executive Branch is so important. So the Office of Personnel Management grew out of it. It's from the 1970s, but it grew out of an office that was created in the 1880s in The Pendleton Civil Service Reform Act that replaced the Spoils system of the 1800s.
So this is a revolution in the federal bureaucracy. And under, back in the 1800s, under the Spoils System, basically what Presidents had done is they had put bureaucrats in place as a reward for different political actions. And in 1883, Congress said it's time to create a merit based system. The Office of Personnel Management is the instantiation of that merit based system and a judgment by Congress that there need to be protections for federal employees. This is just one example. We also, as we discuss in our complaint, describe how Congress has created an audit system. None of this is under the purview of DOGE. None of this is under the purview of Mr. Musk. Congress has set up departments and agencies to undertake these functions. And Mr. Musk and DOGE are really co-opting those functions and co-opting those other portions of government to exercise sweeping lawless power throughout the executive branch. And this is really not legally permissible. And there's just no legal authority for them to undertake these actions.
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