Trump Agency Heads Ignore Musk’s Ultimatum to Federal Employees, in Farcical Episode

Yet by making clear that Musk's power is limited, it could help DOGE in court.

O n Saturday, Elon Musk impulsively gave all federal employees a Monday deadline to report what they accomplished in their jobs last week. We’ll get to why this was foolish. Ironically, though, at least from the standpoint of court challenges to the DOGE operation that Musk is spearheading for the Trump White House, the farce may prove to be an unintended coup: It prompted a backlash in which Trump-appointed agency heads admonished their personnel to ignore the directive. That could help Musk establish that he is not exercising such broad powers that the Constitution mandates his submission to a Senate confirmation process.

I’m not sure DOGE is much more than a public relations stunt. It is titillating the Trump base by sending all the right Democrats and government employee unions into a tizzy. Already, though, it seems there is less here than meets the eye. A weekend Wall Street Journal analysis indicates that DOGE’s claims of savings are vastly overstated, based on errors, double-counting (and worse), and incoherent tabulations. In the end, it’s unlikely DOGE will affect more than a negligible amount of the federal budget and the administrative state: It’s not going to “save our country,” balance the budget, or make a dent in our unsustainable but statutorily based entitlement spending and debt service.

Still, a sudden court ruling that Musk is wielding power unconstitutionally would stop the murky operation in its tracks. It probably helps DOGE, then, that the officials with unquestioned executive authority are treating Musk as though he’s just making suggestions — even if that may irk the president, who touts Musk’s suggestions as if they were Trump decrees.

Hey Government Employees, What Did You Accomplish Last Week?

The hijinks began Saturday morning with a post on X (formerly Twitter, which Musk owns), in which President Trump observed that “ELON IS DOING A GREAT JOB, BUT I WOULD LIKE TO SEE HIM GET MORE AGGRESSIVE.” Musk instantly responded, “Will do, Mr. President.” Shortly afterward, Musk issued the following statement, also on X:

Consistent with President @realDonaldTrump’s instructions, all federal employees will shortly receive an email requesting to understand what they got done last week.

Failure to respond will be taken as a resignation.

In the initial post, the president was referring to Musk’s work as what the administration describes as a “special government employee,” overseeing DOGE, the Department of Government Efficiency.

To repeat what I explained last week, DOGE is a formal component of the Executive Office of the President (EOP). Contrary to the derisive legacy-media labeling of “so-called DOGE,” as if it were a sham entity, components of EOP are parts of the real government — EOP having been stood up by President Franklin Roosevelt in 1939 to oversee the fledgling administrative state, with its framework (and some but not all of its component entities) thereafter given statutory support. DOGE was legitimately established within the EOP framework by an executive order President Trump issued on Day One of his second term, further fleshing out its mission in a White House “Fact Sheet.” DOGE supersedes the United States Digital Service that President Obama established (as an initiative within EOP’s Office of Management and Budget) in 2014.

In a lawsuit by which 14 Democrat-controlled states have sought to halt DOGE’s operations, the administration has conceded that Musk is not a member of DOGE’s staff; but there is no doubt that Trump has put Musk in charge of DOGE’s operations.

Empowering Elon Musk

The president’s constitutional power to vest an executive branch employee, such as Musk, with executive authority is clear but contingent. If such an employee is given a continuing position in which the president has endowed him with significant authority, then that employee is an officer of the United States. Pursuant to the Constitution’s appointments clause (Article II, Section 2, clause 2), such an officer’s performance of continuing, significant executive activities is constitutionally infirm unless he has been formally nominated by the president and confirmed by the Senate.

(A second appointments clause possibility would be that the officer in question serves pursuant to a statutory grant of authority after complying with whatever qualifying conditions Congress has prescribed, which often include Senate confirmation. Nevertheless, unlike some EOP components — e.g., the National Security Council and the Office of Management and Budget — neither DOGE nor Musk’s position has been authorized by statute. The Trump administration does not claim otherwise.)

President Trump and his advisers are well aware of the appointments clause mandate. It is the provision of the Constitution on which Trump relied in successfully arguing that the appointment of Biden DOJ special counsel Jack Smith was invalid because he was neither Senate-confirmed nor appointed under a statute. In advancing that argument, thanks to which the indictment against him was dismissed, Trump was represented by lawyers he has since appointed to top Justice Department posts.

Musk is one of the world’s richest men and has extensive business ties to the government, which heavily regulates some of his most important corporate interests (electric vehicles, space travel, artificial intelligence, social media, etc.). Furthermore, the DOGE initiative is one that Trump clearly wanted to hit the ground running at the start of the new administration, with Musk calling the plays.

It’s understandable, then, that Musk and the administration would have wanted to avoid a searching confirmation process. Not only would that have been very intrusive for Musk (whose life and financial affairs are extraordinarily complicated); it would almost certainly have caused him to decline to serve. If he were deemed the rough equivalent of a cabinet secretary, then he’d have had to separate himself from his private businesses — which he wants to continue running — in order to comply with government conflict-of-interest rules. Moreover, had Musk’s confirmation been required, it would have delayed DOGE’s operations and provided the entrenched bureaucratic interests that Trump is trying to gut, or at least tame, with more time and information to prepare their opposition.

Is the Appointments Clause Applicable?

Consequently, the president has sought to shield Musk from appointments clause applicability in a few ways.

1. Continuous or temporary? First, the executive order defines DOGE as a “temporary organization” with an 18-month term that will terminate on July 4, 2026. This is to circumvent the continuous nature a government post must have for its incumbent to be deemed an officer of the United States subject to Senate confirmation. Alas, as the Justice Department’s Office of Legal Counsel instructs (in a memo intriguingly issued just four days before the Biden administration ended) the definition of “continuous” is not set in stone.

That is apparent, for example, from the aforementioned criminal case in which Trump argued that Smith was an officer of the United States even though Smith’s position didn’t have any set term (it would — and did — end once his investigations of Trump were closed). Moreover, while DOGE is said to be a “temporary” EOP office, the president could extend it (nothing prevents that, just as nothing prevented Trump from establishing DOGE in the first place). Indeed, as noted above, DOGE is an overhaul of an Obama-era EOP digital office — i.e., it has continuously existed in one form or another for some eleven years.

In any event, continuous is a loose term that courts and the DOJ say depends on the circumstances — which include the importance of the powers being exercised. Here, those powers have been described by DOGE naysayers as immense . . . but are they really?

2. Undefined and unpaid role. Second, while the president’s executive order says DOGE has an administrator, Musk is not filling that role. So what role is he filling? On that, the administration has been evasive. Reportedly, Musk is not taking a salary, and remuneration is one of the factors courts consider in deciding whether an office is continuous and significant. Yet Trump is not taking a salary either — admirably, the president and his “special government employee” are forswearing compensation because they are wealthy men who want to serve the country. Quite obviously, however, that doesn’t mean their executive activities lack duration and consequence.

3. What exactly is Musk authorized to do? Finally, the administration maintains that neither Musk nor DOGE has any kind of legal authority to terminate, discipline, or direct the activities of federal employees. DOGE is supposed to coordinate with the heads of the departments and agencies in which it embeds “to implement the president’s DOGE agenda” — as the executive order vaguely puts it, elaborating that Trump wants federal technology to be modernized and the government’s “efficiency and productivity” to be “maximize[d].”

So, are Musk and DOGE just providing advice or are they giving orders? That’s a salient question. The fact that there is no statute, executive order, or other paper trail vesting Musk and DOGE with authority to fire government employees, order them to do things, cancel government contracts, etc., does not necessarily mean they are not doing those things.

Court Challenge

As I discussed in last week’s above-linked column, that is the issue being contested before Judge Tanya Chutkan, an Obama appointee to the federal district court in Washington, D.C. To put it mildly, she is not the president’s favorite judge: Judge Chutkan, we’ll recall, presided over Jack Smith’s now-dismissed 2020 election-interference indictment against Trump, and tried to help the prosecutor get that case to trial prior to the 2024 election, only to be thwarted by the Supreme Court’s ruling that Trump had presumptive immunity from prosecution.

In the abovementioned case brought against Musk and DOGE by the Democratic-controlled states, Chutkan refused to grant a temporary restraining order halting DOGE’s activities. Yet she strongly suggested that the administration had tried to mislead her regarding the extent of the authority wielded by Musk and DOGE; by Chutkan’s lights, Trump’s directive at least “contemplates” that Musk and DOGE have “authority over personnel actions.”

Musk’s Order to the Federal Workforce Is Rebuffed by Trump Officials

To be sure, Chutkan is inclined to assume the worst when it comes to Trump — I thought she laid it on a bit thick in threatening sanctions against Justice Department lawyers if she detects further disingenuousness in their pleadings (see here, p. 2, n. 1). But that said, I confess that my first reaction upon seeing this weekend’s exchange on X between the president and Musk was to wonder whether they realized how much they could be helping the blue states’ contention that Musk is exercising sweeping powers and should be subject to Senate confirmation.

The president didn’t give detailed orders for Musk to carry out in a ministerial fashion. Instead, Trump merely urged Musk to get “more aggressive,” implying that it was up to Musk to figure out how to do that, and thus that he had a great deal of autonomy within very broad parameters — just like cabinet secretaries, deputy secretaries, and agency heads, all of whom must be Senate-confirmed before they may exercise executive power.

But then came the response: Musk appears to have been ignored, in part or in whole, by top executive officials — which is the way you would expect to see an employee treated if he is just giving advice but doesn’t have authority over personnel.

First, the Office of Personnel Management, which does wield authority over the federal government’s 2.2 million employees, put out a statement. While it echoed much of Musk’s directive, it tellingly omitted his threat that personnel would be fired if they failed to comply:

As part of the Trump administration’s commitment to an efficient and accountable federal workforce, OPM is asking employees to provide a brief summary of what they did last week by the end of Monday, CC’ing their manager. Agencies will determine any next steps.

Then a number of agencies directed their personnel to “pause” any response to the OPM directive until they got further instructions from their superiors. To his credit, among the first to take this step was the just-confirmed FBI director, Kash Patel, who issued a strong “Message from the Director”:

All,

FBI personnel may have received an email from OPM requesting information. The FBI, through the Office of the Director, is in charge of all of our review processes, and will conduct reviews in accordance with FBI procedures. When and if further information is required, we will coordinate the responses. For now please pause any responses.

Director Patel was wise to do this. In fact, it would have been even better if the statement had come from his superior, Attorney General Pam Bondi (as of this writing, no statement from the AG has been reported, although there are indications of “anger and amazement” among “law enforcement supervisors”). A directive of the type Musk issued and OPM refined should have gone only to department and agency supervisors — and as a proposal, not an order. That way, they could explain to Musk, OPM, and the White House how an unmonitored process, with employees writing unfiltered descriptions of their work, could compromise investigations and create intractable complications for the government in court proceedings.

Patel was not alone in putting his foot down. Director of National Intelligence Tulsi Gabbard, a Pentagon personnel official on behalf of Defense Secretary Pete Hegseth, and a State Department official on behalf of Secretary of State Marco Rubio all promptly issued similar statements. So did the Administrative Office of the United States Courts — its workers are federal employees but for a different branch; Musk and DOGE have no business telling judiciary and congressional employees to report on their activities. There seemed to be confusion at the Department of Health and Human Services, headed by Secretary Robert F. Kennedy Jr.; initially, HHS instructed its employees to comply with the OPM directive, but subsequently, at least one HHS component, the National Institutes of Health, ordered its personnel to hold off on any responses until further guidance could be given.

What Happens Now?

Obviously, it is not a bad idea for the Trump administration to scrutinize the federal workforce — at least those parts of it that wield executive power — in order to find out exactly what employees are doing, whether they are being productive, whether there is fat that can be trimmed, and even whether more resources are needed for critical government functions. But that’s why federal agencies have layers of supervision.

As the pushback built over the weekend, Musk posted on X that the response he was hoping for from employees was a “low bar” that should take less than five minutes to complete. But if the unfiltered responses could cause legal and other mission-related problems for the administration and its agencies, how much time it may take to compose such a response is beside the point.

Later, in what sure sounded like a post hoc justification for an initiative he now realizes was half-baked, Musk claimed that his true objective was to expose (a) people who “are doing so little work that they are not checking their email at all,” and (b) “non-existent people or the identities of dead people [who] are being used to collect paychecks.” But if, as the president likes to brag, he has put the best people in charge of government agencies, then Musk could rely on those agency heads to identify underperformance and fraud. By giving orders directly to their subordinates — or doing so through OPM — Musk seemed to cut out the agency heads. That’s the worst of all worlds: Musk was suggesting that he has ultimate governmental authority (and thus ought to be subject to a Senate confirmation process) while bypassing the Trump officials closest to their agencies — the ones in the best position to detect underperformance and fraud.

I suspect this is mostly theater. By the time you read this, in the dog years that are news days in the Trump era, the episode will no doubt have been overrun by five or ten new “constitutional crises.” But by countermanding Musk, Trump officials have probably helped him show that he’s mainly a consultant, not a major government officer for appointments clause purposes. And when the dust finally settles — if it ever does — we’ll probably find that DOGE hasn’t moved the earth much.