News

Presidential authority to appoint government officials is in the news, with lawsuits pending over the Department of Government Efficiency’s (DOGE) actions to cut federal spending and businessman Elon Musk’s role. President Donald Trump created DOGE by executive order on his first day in office.

At issue are constitutional questions over whether DOGE’s activities are lawful under the Constitution’s Separation of Powers doctrine and whether Musk has been working at DOGE in the capacity of an officer subject to the provisions of the Appointments Clause of Article II.

Duke Law Professor H. Jefferson Powell, an expert on executive branch powers and author of The Practice of American Constitutional Law, said the clause defines two types of officers — principal and inferior. Both types work for the federal government in an ongoing position and “exercise significant authority pursuant to the laws of the United States.”

But principal officers must be appointed by the president and confirmed by the Senate, while Congress may specify any of three other methods for appointing inferior officers: by the president alone, by a federal court, or by a department head.

Article I gives Congress the authority to create and abolish federal agencies within the executive branch. Its Spending Clause lets Congress control federal funding and the Necessary and Proper Clause empowers Congress to organize executive agencies to carry out government functions.

“Mr. Musk can’t be an officer because he's not been appointed pursuant to any of the methods provided in the Appointments Clause. And DOGE can’t be a formal executive branch agency because it hasn’t been created by Congress,” Powell said.

“It can be a temporary working group or something like that, because I see no reason the president can't constitute such a group to do things that are within the president's remit or advise the president on how to exercise his powers. But it’s not an agency that has to be headed by a principal officer.

“That raises a constitutional question. Is either DOGE — or Mr. Musk specifically — actually exercising governmental authority rather than acting as presidential aides and advisors? I don’t know the factual answer. As a legal matter, they cannot be.

“The question about not spending money that Congress has required to be spent is itself a serious constitutional question, even if it’s the president who’s ordering it.”

Two ways of thinking about separation of powers

Litigation will likely proceed to the Supreme Court, whose ruling may depend on whether a formalist or functionalist interpretation prevails.

Formalist thinkers look to the Constitution for formal rules and strict definitions, Powell explained, while functional thinkers regard it as a more flexible document designed to serve the goals and purposes of government. This tension has existed since the nation’s founding.

“Separation of powers debate is a struggle between formalist and functional thinking,” Powell said. “I think it’s the biggest substantive division in constitutional law that doesn't have a moral side to it. Separation of powers issues aren't usually directly moral questions, in my judgment. They're just about how you structure things. But we’re divided all the way down, just as we are on big moral issues.

“Most of the time, the formalist approach is going to be that there's no constitutional problem with Musk and DOGE because they are employees and advisors to the president and don’t exercise any authority pursuant to the laws of the United States.

“The functionalist may say, ‘Separation of powers is not about rigid categories; it’s about the way things work. The problem is that the president is circumventing the formal officers and agencies which Congress has set up in a way that has to be respected by the executive.’”

Powell noted that Musk’s status as a special government employee who is reportedly receiving no compensation for his work may violate the Antideficiency Act, which prevents the government from accepting voluntary services.

But he sees no constitutional violation if Musk or DOGE is found to have simply advised officers with authority to make decisions, such as the secretaries who lead federal agencies.

“In the formalist analysis, as long as the secretary makes the decision, there wouldn't be a problem with Musk having advised it,” Powell said. “There might be a problem because the decision violates the civil service laws. Or because the result is to impound funds unconstitutionally. But his advisory role doesn't make any difference constitutionally.”