The lawsuit seeking to kick Elon Musk out of government, explained

On Thursday, a group of current or former workers at the US Agency for International Development (USAID), the foreign aid agency that the Trump administration appears to be trying to dismantle, filed a lawsuit making an audacious argument. According to their complaint in Doe v. Musk, billionaire Elon Musk’s appointment to — well, to whatever President Donald Trump has appointed him to within government — violates the Constitution. The theory behind this lawsuit is pretty straightforward. The Constitution designates certain high-ranking government employees — those who, in the Supreme Court’s words, exercise “significant authority pursuant to the laws of the United States” — as “officers of the United States.” The Doe lawsuit alleges that Musk is wielding the powers of such an officer without being properly appointed to that role. The most powerful of these officers, known as “principal” officers, must be nominated by the president and confirmed by the Senate. Lesser officials, known as “inferior” officers, may sometimes be appointed without the Senate’s consent. But even inferior officers must be appointed in a manner “established by law.” The Doe complaint argues that Musk is wielding the kind of sweeping, cross-agency authority that could only be exercised by a principal officer — and thus Musk should be powerless to act because he was not confirmed by the Senate. Alternatively, the complaint argues that, even if Musk counts as an inferior officer, he was not appointed to his role in a manner established by an act of Congress, and therefore his appointment is invalid. It is difficult to judge the merits of this claim because the full scope of Musk’s duties is rather opaque — he’s been designated as a “special government employee,” a position that only allows him to work 130 days a year for the government. But it’s unclear what authority he actually possesses in this role. Musk, for example, is a vocal cheerleader against USAID. But the decision to pause US foreign aid appears to have been made by Secretary of State Marco Rubio, who claims he was acting pursuant to an executive order from Trump. Rubio was confirmed to his office by the Senate, and thus may lawfully wield the authority of a principal officer of the United States. Similarly, a parallel lawsuit filed by multiple blue-state attorneys general challenges the Treasury Department’s decision to give an individual associated with Musk’s “Department of Government Efficiency” team access to an extremely sensitive computer system that processes trillions of dollars in federal payments every year. But it is unclear, exactly, what DOGE intends to do with its access to this system, or whether that access would need to be overseen by a principal or inferior officer. Still, the Doe complaint points to several examples where Musk or DOGE claimed credit for actions that would normally need to be authorized by an officer of the United States. At one point, for example, Musk posted on a personal account that DOGE is shutting down supposedly “illegal payments” to a Lutheran charity. Another X post, on DOGE’s official account, takes credit for shutting down 12 government contracts worth a total of $30 million. Will the Doe lawsuit succeed? There are two reasons why this lawsuit may not ultimately bear fruit. One is that it may turn out that Musk’s DOGE operation is little more than a vehicle for Musk’s own bluster. The premise of the Doe lawsuit is that Musk is personally wielding the kind of authority that only a properly appointed officer can exercise. But it may turn out that he’s really just hyping decisions that were made by someone else, or that he is merely making recommendations that are implemented by properly appointed officers. If that turns out to be the case, then Musk can continue as a largely powerless official without running afoul of the Constitution. Indeed, the primary value of the Doe litigation may be forcing the Trump administration to disclose what, exactly, Musk is up to. Once that information is known, a court can decide whether Musk’s specific duties are the sort which require a Senate confirmation, or at least a lawful appointment to an inferior officer’s role. A second, closely related question is whether the USAID workers who are plaintiffs in this lawsuit are allowed to challenge Musk’s appointment in federal court. In order to bring a federal lawsuit, a plaintiff must show that they were injured in some way by the defendant they are suing — a requirement known as “standing.” As the Supreme Court held in Lujan v. Defenders of Wildlife (1992), moreover, there “must be a causal connection between the injury and the conduct complained of.” That is, if a plaintiff alleges that they were injured by Musk illegally exercising governmental authority, they must show that they were actually injured in some way by Musk’s illegal actions. The Doe plaintiffs mostly argue that they were locked out of their USAID email accounts because of DOGE, or that they were denied access to valuable documents such as travel vouchers that one of the plaintiffs needs in order to recover $15,000 that they are owed by the agency. To bring this suit, however, these plaintiffs will need to show that they experienced these harms because of a decision that came from Musk, and not, say, Secretary Rubio. Still, even if these particular plaintiffs cannot sue Musk, it would be valuable for the public to learn that Musk is not actually responsible for the Trump administration’s attacks on USAID. Additionally, if it turns out that some other individual has been harmed by Musk’s stewardship of DOGE, that other individual could potentially bring a lawsuit challenging Musk’s appointment even if these USAID plaintiffs cannot. At the very least, in other words, lawsuits like Doe could finally provide some clarity about what, exactly, Elon Musk is doing.

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The lawsuit seeking to kick Elon Musk out of government, explained