Defendant’s Appointment Clause and Trump’s Objection of the Unconstitutional Power-Graw: DOGE vs. State Case
The states have the option to file for a preliminary injunction if they choose to do so. That would provide a new opportunity to seek to stop Musk and DOGE’s access to the Office of Personnel Management (OPM), Departments of Commerce, Education, Energy, Labor, Health and Human Services (HHS), and Transportation.
Chutkan seems interested in certain parts of the states case. The AGs raised a colorable Appointments Clause claim that has serious implications. Musk has not been nominated by the President or confirmed by the Senate in order to exercise his significant authority pursuant to the laws of the United States. The Appointments Clause attempts to prevent Executive abuses, and this is precisely what the actions of Defendants are designed to prevent. Chutkan also admonishes the Trump administration counsel in a footnote where she suggests an official’s sworn declaration characterizing the authority that Trump’s executive order creating DOGE “contemplates” appears to contradict the plain text of the order. “Defense counsel is reminded of their duty to make truthful representations to the court,” she writes.
“While we are disappointed that the court declined to issue a temporary restraining order, we remain committed to putting an end to Elon Musk’s unlawful power grab,” New Mexico Attorney General Raúl Torrez says in a statement. “Every day that he is allowed to operate without a congressional mandate and with little apparent supervision, Musk is destabilizing our government and disrupting critical funding for education, public health and national security. We’re ready to pursue this case for as long as it takes to bring this chaos to an end because his move fast and break things mentality is reckless and also unconstitutional.
The affected agencies are required to submit any new regulations to the White House, set up their own White House Liaison offices and consult with the White House on policies and priorities. In claiming this new power over agencies, the order also gives the president and attorney general the sole abilities to interpret laws for the executive branch. The order stands as yet another example of Trump’s pushes to aggressively expand executive power.
The Foundations of Independence: Project 2025, Trump’s First Executive Order, and the Dissolution of the SEC and Consumer Product Safety Commissions
The Securities and Exchange Commission oversees markets, as well as the Consumer Product Safety Commission, which issues recalls and safety warnings.
The separation of monetary policy from the electoral politics of the Federal Reserve is of paramount importance to stabilizing the economy.
“Given Trump’s insistence on complete loyalty to him on the part of all government employees, this move is designed to extend his grip on the government to areas that previously have been nonpartisan,” said Daniel Farber, a law professor at University of California, Berkeley, who clerked for the moderate Supreme Court Justice John Paul Stevens, in an email.
A law professor who worked for Justice Clarence Thomas thinks the president has the power to fire heads of agencies. He also says he believes the current Supreme Court is likely to agree with Trump.
At the center of Trump’s new executive order is Russell Vought, director of the Office of Management and Budget. As acting director of the Consumer Financial Protection Bureau, he recently mandated that all staff “stop performing any work tasks.”
Vought advocated against the concept of independent agencies in an interview with far-right broadcaster Tucker Carlson shortly after Trump’s November election.
“There are no independent agencies. The Constitution doesn’t understand the idea that Congress viewed them as SEC or the FCC, the whole alphabet soup. There are different strategies you can use about how to dismantle them. But as an administration, the whole notion of an independent agency should be thrown out.”
The prospect of bringing independent agencies under White House control is laid out in Project 2025, the conservative Heritage Foundation’s blueprint for government that Trump tried to distance himself from during the campaign.
Project 2025 references a 1935 Supreme Court decision, Humphrey’s Executor v. US, in which the court decided that a president cannot fire the head of an independent agency. Project 2025’s chapter on the Department of Justice argues that that decision violates the separation of powers.
“I think the court has been saying for years that Congress can’t give for-cause protections to these agencies,” he said. “I think the handwriting’s on the wall.”
Indeed, the Supreme Court, which has a 6-3 conservative supermajority, has for years been eroding the power of regulatory agencies. Five of its six conservatives have gone on to become White House lawyers.
“One result will be to give the president much more control over the financial sector, especially via the SEC,” Farber said, adding that via the NLRB and FTC, Trump would also have more control over labor and trade, respectively. The ultimate result, he said could be regulatory whiplash.
“The Commission system has given these areas of the law some degree of stability, so the rules don’t completely flip after every election,” Farber said. “That would change under Trump’s order.”