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PaperclipPerfector  2mo ago (text post)   38880 thread views

Culture War Roundup for the week of February 24, 2025

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Here's a question that seems like it should have a straightforward answer but apparently doesn't: Who is the Administrator of USDS and DOGE? The Executive Order renaming USDS and establishing DOGE reads, in relevant part:

(b) Establishment of a Temporary Organization. There shall be a USDS Administrator established in the Executive Office of the President who shall report to the White House Chief of Staff. There is further established within USDS, in accordance with section 3161 of title 5, United States Code, a temporary organization known as “the U.S. DOGE Service Temporary Organization”. The U.S. DOGE Service Temporary Organization shall be headed by the USDS Administrator and shall be dedicated to advancing the President’s 18-month DOGE agenda. The U.S. DOGE Service Temporary Organization shall terminate on July 4, 2026. The termination of the U.S. DOGE Service Temporary Organization shall not be interpreted to imply the termination, attenuation, or amendment of any other authority or provision of this order.

(c) DOGE Teams. In consultation with USDS, each Agency Head shall establish within their respective Agencies a DOGE Team of at least four employees, which may include Special Government Employees, hired or assigned within thirty days of the date of this Order. Agency Heads shall select the DOGE Team members in consultation with the USDS Administrator. Each DOGE Team will typically include one DOGE Team Lead, one engineer, one human resources specialist, and one attorney. Agency Heads shall ensure that DOGE Team Leads coordinate their work with USDS and advise their respective Agency Heads on implementing the President ‘s DOGE Agenda.

So USDS and the The DOGE Service Temporary Organization are headed by the same person and that person is the individual Agency Heads are supposed to work with to determine their DOGE Teams. There's been a bunch of reporting over the last few weeks about DOGE Teams arriving in various departments, so presumably this consultation has happened. Who was the consultation with? The obvious answer is "Elon Musk." Certainly everyone seems to assume he's in charge of DOGE. He (and Trump) talk like Musk is in charge of the effort. So much so that even Wikipedia lists Musk as the "Administrator of the Department of Government Efficiency." Case closed, right? Well, not so fast says the United States government. According to a sworn declaration by Joshua Fisher (Director of the Office of Administration):

5. In his role as a Senior Advisor to the President, Mr. Musk has no greater authority than other senior White House advisors. Like other senior White House advisors, Mr. Musk has no actual or formal authority to make government decisions himself. Mr. Musk can only advise the President and communicate the President's directives.

6. The U.S. DOGE Service is a component of the Executive Office of the President. The U.S. DOGE Service Temporary Organization is within the U.S. DOGE Service. Both are separate from the White House office. Mr. Musk is an employee in the White House office. He is not an employee of the U.S. DOGE Service or U.S. DOGE Service Temporary Organization. Mr. Musk is not the U.S. DOGE Service Administrator.

That declaration comes from a filing in State of New Mexico v. Musk, where a bunch of U.S. States are suing Musk and DOGE for allegedly exercising the powers of a principal officer of the United States without Senate confirmation in violation of the Appointments Clause. You can read the filings in that link if you care about the arguments (I think they have a pretty good case, given the actions attributed to DOGE) but I want to focus on a more basic question: If Elon Musk is not the DOGE Administrator, then who is? The answer seems to be: nobody knows! Actual USDS employees who pre-date Trump seem unable to get an answer about who is running their agency. This culminated yesterday in a hearing where a federal judge asked a DOJ lawyer point blank “Is there an administrator of DOGE at the present time?” and the response was "I don’t know the answer to that."

This is crazy right? The executive order is pretty clear that DOGE has to have an Administrator and that Administrator is responsible for working with Agency Heads to determine DOGE employees for each Agency. Are none of the DOGE employees embedded at various agencies actually DOGE employees? Has the actual DOGE organization done nothing? That's certainly not how people who seem to be involved talk about it! Either DOGE has an Administrator and someone knows who or, I guess, every action every DOGE employee has taken has been unlawful?

ETA:

Of course, right after I post this the White House says Amy Gleason is DOGE Administrator.

The US Constitution has a zeroth article that says you're allowed to violate the whole thing and create entire branches of government out of thin air, but only if you're on the side of the bureaucracy. Barrack Obama can make up USDS, but you're not allowed to use it.

I mean who the hell can still believe that rule of law and separation of powers are anything but a joke at this point?

This is a weird reply. No one questions Trump's ability to create DOGE, only what powers the DOGE administrator can have. Did Obama's USDS administrator purport to be able to fire any government employee? Cancel federal government contracts? Impound congressionally appropriated funds? If Trump wants DOGE just to do the kind of thing previous USDS administrators have done that's fine, but clearly they want much more power. Power the constitution denies to officers not subject to senate confirmation.

How was Obama's head of USDS nominated and did that or did that not violate the Appointments Clause according to this line of argument?

They did not require senate confirmation and did not violate the Appointments clause. Part of the distinction about whether an officer is "inferior" or "principal" (and thus whether they require senate confirmation) turns on the authority they wield. If you want to create a purely advisory committee to figure out software best practices and help other government agencies bring their stuff up to date, no problem. If you want to create an entity that has the power to hire and fire people of different departments, order around other senate confirmed officials, cancel contracts, etc then you need senate confirmation.

EOP staffers are, in general, not "Officers of the United States" - nothing they do legally matters except in so far as it results in a signed order crossing the Resolute Desk - legally, even the White House Chief of Staff is just an Assistant to the President. (The use of the Presidential autopen complicates this a bit, but that is the principle). The EOP staff who can do things on their own authority (like the head of the OMB, who has an official role in the process of signing off CFR regulations) are Senate-confirmed.

The "inferior officers" clause in the Constitution requires Congressional action - by default all Officers of the United States are Senate-confirmable, but Congress can by law exempt inferior officers. So if someone is acting as an Officer, they either need to be Senate-confirmed, or appointed to a specific "inferior office" created by Congress.

So the question is whether either the de facto head of @DOGE (i.e. Elon Musk) or the administrator of the United States DOGE service (i.e. Amy Gleason) is acting as an Officer of the United States, rather than an assistant. Telling a Senate-confirmed agency head, "You should fire these people/cancel these contracts or I will tattle on you to POTUS." is not acting as an Officer. Breaking leases and cancelling contracts on his own authority probably would be. Signing cheques for the Treasury (or modern equivalent) is definitely acting as an Officer. If, as has been alleged in numerous places, DOGE is overriding the decisions of departments with Senate-confirmed heads about how Congressionally-appropriated funds are spent, then that is an Office and the person who does it is an Officer, and the Appointments Clause is being violated because neither Musk nor Gleason nor anyone else in DOGE has been confirmed as an Officer by the Senate, or appointed to an inferior office established by Congress.

My understanding of the setup from the EO was that DOGE just makes recommendations to the President and that it is he who hires and fires.

Has any DOGE employee actually done anything that doesn't amount to "give us this information so we can tell POTUS who to sack"?

This is pretty "Your honor, I did not 'conspire to commit fraud'. I simply had an innocent hypothetical conversation with my good friend, who happened to commit fraud a few weeks later. That the friend's actions were related to my hypothetical is a coincidence and has no bearing on my guilt.". If the Appointments clause was intended to prevent things like this, cute tricks shouldn't and won't prevent judges from finding that no, de facto, he's the administrator.

(Also, this is another example of my point about how Trump isn't even trying to pretend to follow the law, and pretending to follow the law is an indispensable tool for minimizing legal exposure if you're trying to break the law. Whatever his goals are, it isn't smart to not have figured out who the DOGE administrator is until this point, or to have made it a little less blatant that Elon's directly calling shots without a superior)

You aren't exactly convincing me of the nonexistence of that zeroth article when you compare trying to get rid of bureaucrats to conspiring to commit fraud.

But leaving that aside, I find it immensely frustrating that people argue cute tricks wont work in a nation where growing wheat for one's own consumption is illegal because of "interstate commerce".

My man, your entire Republic is built on cute tricks. The Constitution itself was a cute trick. Not to mention the whole concept of EOs as quasi-laws like they are today.

Cute tricks without hard power maybe are fraud. Cute tricks backed by hard power are institutional innovations. The only relevant question here is whether SCOTUS will wear the excuse or not. And they've worn some pretty fucking silly excuses in their time.

According to some reporting DOGE employees are in control of all payments at USAID and denying disbursement of payments authorized by Secretary of State Marco Rubio. I am skeptical DOGE is going to be able to present any kind of communication from Trump authorizing any particular firing rather than purporting to give them discretion.

Congress can delegate their power to subordinate positions. Why can't the President?

Answer in two parts.

First, there are some powers which Congress is probably not able to delegate to subordinate positions. I think if Congress tried to establish an agency to determine the budget for the federal government for the upcoming year without a vote in Congress that would be struck down. Similarly certain powers (like the power to pardon) are specific to the office of the President and he probably can't delegate those. If he wants to empower an agency to advise him on the use of the power that's probably fine but there are likely certain powers he can't just give to other entities.

Second current law suggests that many actions taken by DOGE would be unlawful even if those actions ultimately issued from the President himself. Decisions about firing certain employees or impounding funds are governed by Congressional statutes, not just the president's whims. So even if the President could delegate certain powers it's not clear he has the powers to do the things he would be delegating.

ETA:

I guess there's a third thing which is that Supreme Court interpretation of the appointments clause also limits the power the President can delegate without the safeguard of Senate confirmation, which is probably the one most relevant here.

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