In the New York Times, Katherine Shaw says yes: There Is No Musk Exception in the Constitution. But at The New Reform Club, Seth Barrett Tillman objects:
Shaw indicated that the test for being an “officer of the United States” is that the purported officer exercises “significant power.” That is entirely wrong. As the Supreme Court explained in Buckley v. Valeo (1976), the test is that the purported officer exercises “significant authority” which binds the United States as a legal matter. There is a world of difference between Shaw’s position and the Supreme Court’s. Spouses (like Jill Biden, like Hillary Clinton) and White House confidants frequently exercise very real power through giving advice and recommendations to the President (or to cabinet members), but such advisors do not wield or purport to wield legal “authority.”
As to the other evidence Shaw puts forward—she speaks to where Musk was “presen[t],” who he “speak[s]” to, who and what he criticizes or “inveigh[s]” against. Not one thing on this list of Musk’s purported “significant powers” is remotely close to what the Supreme Court has determined to be unlawful when exercised by a nonofficer …
That seems probably right under current law. The Chief of Staff (not an advice-and-consent appointment) surely exercises "significant power" in Shaw's sense. (I recently finished reading Max Boot's Reagan biography, which conveys how powerful — for good and bad — the Chief of Staff was in the Reagan administration.) If the Chief of Staff is constitutional, "significant power" can't be the test.
But maybe the Chief of Staff isn't constitutional, from an originalist perspective. I don't know of comparable positions that didn't require Senate consent in the early post ratification period, at least before Jackson.
Also, is it clear that Musk is not exercising legal authority? Professor Tillman continues:
[Shaw's] best example is that Musk’s “team,” as opposed to Musk himself, purportedly canceled a contract on behalf of the U.S. government. But that might mean no more than Musk recommended that course of conduct and that the responsible secretary, under-secretary, or high level civil servant acted on Musk’s advice (which was only relied upon at the direction of the President). In those circumstances, Musk will have tendered a recommendation, not a final decision binding the government. That’s not enough—not nearly enough—to make him an “officer of the United States.”
That also seems right if true. I assume the President could hire an outside consulting firm to review government operations and recommend cost saving measures, which the President or other officials could act on. Maybe that's all that's going on, albeit with a rather unorthodox consulting firm.
But the administration should be careful with stories like this one (from Fox Business): What has DOGE cut so far?
In the weeks since its inception, DOGE has canceled a number of diversity, equity and inclusion (DEI) initiatives at federal agencies as well as certain consulting contracts, canceling leases for underused federal buildings, while also working to consolidate duplicative agencies and programs. (emphasis added.)
The account needs to be that "DOGE has recommended canceling" and "DOGE is making recommendations to consolidate", etc. I understand why Musk doesn't want to describe it that way, but not describing it that way is asking for constitutional trouble.
Posted at 12:59 AM