Is DOGE unconstitutional? Let’s dive in…
“I didn’t vote for Elon Musk.” This complaint became a common refrain in recent weeks for those alarmed by Musk and DOGE’s efforts to reduce government spending. Even Elizabeth Warren is getting in on this criticism. The distrust of power wielded by unelected officials has reached a new high.
The Department of Government Efficiency (DOGE) appears to be active on many fronts, with the Trump-made office credited or blamed for cancelling contracts and grants, enticing career officials to quit with severance packages, outright removing them, downsizing USAID, and attempting to audit Treasury payments.
With DOGE’s activity, the second Trump administration’s opponents have discovered a new interest and skepticism of the power of unelected officials. Fortunately, the Framers of the Constitution were likewise concerned with controlling and limiting unelected officials’ power, resulting in two key safeguards created as part of the separation of powers.
When we think of the separation of powers, we think of how the Constitution separates the powers of government into the three branches of government. So Congress makes the law, the executive branch executes the law, and the courts interpret the law in deciding specific cases. And no branch may exercise another branch’s powers.
But the Constitution doesn’t only separate power between branches; it also separates power within branches. For example, many are now familiar with the fact that only the House of Representatives may open impeachment proceedings against the president. That’s because the House is considered the most accountable body in the federal government, with every representative in the House facing elections every two years.
The Constitution also separates power within the executive branch by accountability. First, it separates powers between the president and unelected executive officials: The Constitution vests the executive power in the president alone, and none in unelected officials, recognizing that the president is the only one in the executive branch (along with the vice president) who is accountable to the people. Second, because the president can’t carry out his duties alone, the Constitution permits unelected officials to assist the president by wielding executive power on his behalf. To preserve accountability, the Constitution separates powers amongst these unelected officials as well. In particular, the Appointments Clause of the Constitution creates two categories of unelected officials: officers and employees.
Only officers—those who, in general, are appointed by Senate confirmation and who can be fired at will by the president—may have significant power. This ensures that Congress has a say in who can have significant power and subjugates officers to the president. By contrast, employees may be selected in any way and may be shielded from at-will removal—think the civil service protections that many career officials have—but may not hold any significant power.
This system matches accountability to power and provides us with a framework for thinking about the legitimacy of Musk’s actions: If he has significant authority, he should be Senate-confirmed.
The question of Musk’s authority requires a close look at DOGE’s structure and actual powers. The executive branch consists of the White House and the various executive agencies, such as the Department of Justice, the Department of Commerce, the EPA, and so on. DOGE was established by executive order as an office inside of the White House. The office is headed by a DOGE administrator, who appears to be one Amy Gleason, a minor official from the first Trump administration. Musk himself is not formally part of DOGE but is instead an advisor to President Trump. In this capacity, he likely operates as a DOGE “czar”—that is to say, the president’s point person for overseeing DOGE, just as presidents in the past have had border czars or climate czars. Finally, the executive order directs each agency head to appoint a “DOGE Team” for his or her agency. Each DOGE Team is housed in its respective agency, not in DOGE.
Musk himself appears to have no formal authority at all. He holds an advisor position, which no executive order, regulation, or statute vests with authority to make actual decisions. In this capacity, Musk’s role is roughly similar to the president’s chief of staff: He tells agencies what to do, and agency heads have the power to ignore him because he lacks formal power. They may listen, however, because Musk is understood to have the president’s confidence and act as his messenger, so if a conflict arose between an agency head and Musk, the president may be expected to take Musk’s side. This arrangement makes Musk informally powerful, but his power comes from the expectation that the president would back Musk if an agency head disagreed with Musk’s recommendation— the power does not come from formal, independent decision-making authority vested in Musk.
The same appears to be true of the DOGE administrator. No regulation or statute vests the DOGE administrator with any power. Instead, the DOGE administrator’s authorities were created by executive order, as follows:
- The DOGE administrator must be consulted on various matters, such as agency heads’ appointment of their DOGE Teams, other officials’ actions around hiring freezes, and a presidential assistant’s formulation of a federal hiring plan.
- The DOGE administrator will modernize IT systems.
- The DOGE administrator may access all unclassified agency records and IT systems, to the extent permitted by law.
- The DOGE administrator collects various other information, such as monthly hiring reports for each agency.
- The DOGE administrator provides various recommendations, such as whether the president should alter or extend his executive order limiting agency hiring and funding of border initiatives.
None of these empower the DOGE administrator herself to take significant action.
The upshot is that neither Musk nor the DOGE administrator have significant authority. Because of this, the Constitution does not require that they be Senate-confirmed. Rather, they are non-officer employees, who may be selected in any way. In other words, there is not only nothing wrong with Musk not being elected, but the absence of power vested in his position means there are no restrictions on how he is selected.
This runs against the popular narrative, which blames (or credits) Musk with all manner of actions—the termination of contracts, the retraction of grants, and various personnel actions. But these actions appear to have been taken by the various agencies themselves, through agency personnel possibly including the DOGE Teams, not by Musk or the DOGE administrator. For example, the cutback of USAID activities was directed and carried out by USAID officials, not Musk.
The unease with which many regard Musk’s role may have more to do with the vast power that the executive branch possesses— and which President Trump, assisted by Musk, is taking more direct control over. The problem, ultimately, is not that Musk is unelected, but the huge amount of power that President Trump has inherited.
Perhaps you disagree and believe that the restrictions on unelected officials should be stronger than what is currently required. For example, you may believe that the president should not be able to unilaterally create a “DOGE czar” position with so much informal power, and that such powerful positions must be created by Congress.
These concerns are valid and are traced back to the Founding, when, in the Declaration of Independence, the colonists accused the King of “erect[ing] a multitude of New Offices, and sen[ding] hither swarms of Officers to harass our people, and eat out their substance.” Unfortunately, over the past 100 years, both major parties have worked to weaken the Constitution’s separation-of-powers protections against unelected officials. Many on the left have seen this as necessary to empower unelected agency officials to protect the environment, keep food and drugs safe, and so on. But if we are to guard against the improper creation, filling, and empowering of unelected offices, we must advocate for separation-of-powers limits on unelected officials, both when our preferred party is in power and when it is not. PLF will continue to fight for these limits—and we hope today’s controversies will prompt others across the political spectrum to join us.
