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President Donald Trump has set Elon Musk loose on the executive branch, to stunning early effect. Musk controls the government’s payment system and may block payments he deems wasteful. He has claimed credit for unilaterally shutting down an IRS program and is trying to shut down an entire agency. One report cites a Trump administration official describing Musk as “operating with a level of autonomy that almost no one can control.”
Most of the controversy about Musk’s role has been focused on the many actions he and his team have taken that are alleged to violate the Constitution or federal statutes. In a flurry of lawsuits, specific actions are being targeted, including Musk’s seemingly unlawful decisions to stop the government from spending money that Congress appropriated, to fire federal workers, and to access sensitive data. These suits will no doubt proceed in the weeks and months ahead, as it falls to the courts to hold Musk accountable for his blatant indifference to the law.
But beyond his individual actions, Musk’s role raises more fundamental questions. What does the Constitution have to say about his novel position in the executive branch? Does our founding document, with its carefully calibrated checks and balances, allow for him to exercise this much power?
The answer should be a hard no. The details of Musk’s job remain somewhat opaque. But we know enough to say that it is inconsistent with our Constitution’s text, its structure, and Supreme Court precedent.
The appointments clause generally assigns the president to appoint ambassadors, Supreme Court justices, and those holding other offices “which shall be established by Law.” In terms of how the appointment is made, the clause requires that “Officers of the United States” be nominated by the president and confirmed by the Senate, whereas Congress can allow the president to make appointments on his own only for lower-level officials (what the Constitution calls “inferior officers”). The Framers required Senate confirmation for the most important posts as a check on presidential misuse of power. In the Federalist Papers, Alexander Hamilton explained that this confirmation process was a bulwark against cronyism and a safeguard of good government.
There are two basic problems with Musk’s appointment. The most important one is that, given his immense powers, Musk cannot be considered a lower-level appointment—an “inferior officer,” in the Constitution’s language. That means that the Constitution does not allow any form of appointment for Musk’s current role other than through Senate confirmation. That should be enough to settle the issue. But even if Musk were considered an inferior officer, his office was not “established by Law,” and Congress has not empowered the president to make the appointment without Senate confirmation. Either way, his appointment was unconstitutional.
To begin with the first point, Musk cannot possibly be considered an inferior officer. The Supreme Court has said that the appointments clause requires Senate confirmation for “any appointee exercising significant authority pursuant to the laws of the United States.” This language is cryptic, but Musk’s current authority certainly looks “significant.”
Later cases strengthen this conclusion. In one major case, the high court held that an officer must themself be subject to Senate confirmation unless they are “directed and supervised” by someone else who was themself confirmed by the Senate. In other words, the Senate cannot be cut out entirely. But that seems to have been the case with Musk, who reports only to the president.
Further, SCOTUS recently held that it is unlawful for judges on the Patent Trial and Appeal Board, who were not confirmed by the Senate, to exercise final, unreviewable decisionmaking authority over patent cases. Musk purports to have the authority to shut down federal programs or turn off the spigot of federal funds. This power would be far greater than that of patent judges whom the Supreme Court—including all three of its Trump appointees—saw fit to rein in.
Musk’s defenders might argue that the Constitution does not require Senate confirmation because Musk’s appointment is temporary (at least if the White House press secretary is to be believed). True, courts and the Department of Justice have found that the short-term character of a position can counsel against a finding that the Constitution requires Senate confirmation for that role. This fact alone, however, does not settle the matter.
Although the short-term nature of appointments is often a crucial factor, it would be perverse to dictate that short-term appointments never require Senate confirmation. Suppose Trump publicly announced that a different political ally would assume all the powers of the Treasury secretary each month. Surely the Constitution would not allow this obvious effort to subvert its advice-and-consent requirement.
Second, a defender of Musk’s role might reply that he is merely like other White House staffers. Can’t the president seek advice from whoever he wants? And can’t he have White House staff transmit his policies and monitor implementation?
Of course he can, but Musk’s role far exceeds that of even the most powerful White House staffer. Media reports and his own statements show that he is making real governing decisions of his own—shutting down programs, laying people off, and directing federal funds across a wide swath of the government. Government lawyers have, briefly and with no meaningful support, argued that Musk “has no actual or formal authority to make government decisions himself.” But the argument that Musk is merely another presidential adviser flies in the face of extensive media reporting about his wide-ranging authority.
As Musk has gone about his business unchecked, the Senate has been holding hearings on whether to confirm some of Trump’s most controversial appointments. However flawed the Senate confirmation process has been, Pete Hegseth, Tulsi Gabbard, Kash Patel, and Robert F. Kennedy Jr. have at least had to face bipartisan questioning about how they would exercise power. Obscure sub-Cabinet appointees will also require confirmation. The contrast with Musk is striking.
Even if courts were to find that Musk is an inferior officer, the Constitution still does not leave him in the clear. The appointments clause goes on to provide that “Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone.” Musk might claim that this clause allows Trump to delegate power to him as an “inferior officer,” without Senate involvement.
That argument is a nonstarter. Musk isn’t occupying an office that Congress established “by Law,” as the clause necessitates. Cases about the meaning of inferior officers involve the president’s filling a role that Congress expressly created through passing legislation. The Supreme Court, including its most conservative justice, has repeatedly reaffirmed that for inferior officers, the Constitution “clearly requires that those offices ‘shall be established by Law,’ ” i.e., a federal statute. That alone seems to preclude Musk, who is occupying an ill-defined role that Congress certainly never created. Though the legislative body has authorized the appointment of “temps”—formally called special government employees—it has not specified their duties. The duration of a job is a term of employment, not a job description. Trump, not Congress, has defined Musk’s duties and set him loose on his rampage through the government.
Earlier this month, two lawsuits were filed challenging the legality of the Musk appointment for violating the Appointments Clause. These suits directly raise the issues discussed above, so the federal courts will have the chance to weigh in. If they find that Musk’s appointment indeed violated the appointments clause—because he should be understood as either a principal officer or an inferior officer—that would provide reason for courts to require that the executive branch unwind any official actions that Musk took when exercising power beyond what the Constitution allows.
Given the many threats that the Trump administration poses to the rule of law, from the politicization of the Justice Department to the threat of ignoring court orders, these lawsuits risk escaping public notice. That would be a mistake. The appointments clause is a critical safeguard of the role of Congress in our system of checks and balances—a system a majority of the public now believes to be faltering, according to a Quinnipiac poll released Wednesday. The appointments clause is, in other words, the constitutional enemy of the exact type of unchecked power Musk is trying to exert.
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