Musk’s Adviser Role Sets Up Constitutional Test Over His Power

A White House declaration that Elon Musk is operating as a mere adviser as he pushes a relentless campaign to slash government spending is setting up a constitutional clash over the billionaire Trump ally’s role in government.

Musk is the face of President Donald Trump’s Department of Government Efficiency, or DOGE, that has cut jobs, canceled contracts, and accessed sensitive information systems across the federal bureaucracy. But the White House said in a Feb. 17 court filing that Musk isn’t an employee of DOGE, but rather a “senior advisor to the president” with no authority to make government decisions.

The classification potentially carries enormous weight, as the administration faces a blitz of lawsuits alleging the power that Musk and DOGE wield flouts the Constitution. As a White House employee, Musk would also enjoy executive privilege protections Trump has regularly invoked to try to shield records.

The moves appeared designed to “purposefully insulate” Musk “from these kinds of court actions or oversight requests,” said Jonathan Shaub, a University of Kentucky law professor and former senior White House lawyer during the Biden administration.

“The idea that he has no authority,” Shaub said, “that makes it almost impossible to challenge Musk’s actions directly.”

That designation is sure to be tested in the courts. One lawsuit from 14 Democratic-led states alleges Musk overstepped his authority because he’s not a Senate-confirmed officer of the government. Other complaints claim DOGE is breaking a law that imposes guardrails on an administration’s use of commissions or task forces.

On Feb. 18, federal judge Tanya S. Chutkan in Washington denied the state-led push for a temporary restraining order blocking Musk and DOGE’s access to several agencies. But she said the states “legitimately call into question what appears to be the unchecked authority of an unelected individual and an entity that was not created by Congress.”

‘Pushing the Boundary’

In a court declaration outlining Musk’s role, Josh Fisher, the director of the White House’s Office of Administration, said the Tesla, SpaceX, and X owner is a special government employee no different from Anita Dunn, whom he labeled an “influential senior advisor to President Biden.”

The Justice Department, in response to a court’s questions, also claimed that Musk “only has the ability to advise the president, or communicate the president’s directives, like other senior White House officials.”

Presidents of both parties have in recent decades relied more on White House counselors, such as the chief of staff and national security adviser, to influence policy in substantial ways, said Shaub, who writes on presidential power.

Those advisers aren’t considered officers under the Constitution and don’t require Senate confirmation the way that cabinet heads and senior agency leaders do.

But Musk’s dramatic entrance into the federal government is a departure from historical bounds of a White House adviser’s influence.

“The test is whether we’re going to stick to this formal distinction between agency heads and White House officials,” Shaub said. “Musk is really pushing that boundary, because anybody watching what’s happening would say Musk is wielding significant government authority.”

Early DOGE Moves

Trump and Musk have claimed their moves are designed to eliminate wasteful spending. In just one month, the administration has fired hundreds of workers at agencies such as the Consumer Financial Protection Bureau while seeking to shut down the US Agency for International Development.

Following his election victory, Trump said that Musk would lead the “government efficiency” department, and Musk on Feb. 11 flanked Trump in the Oval Office while talking to the press about his efforts. The two then appeared in a joint Fox News interview Feb. 18, where Musk defended DOGE’s early actions.

Yet the White House’s court declaration makes it unclear who is the formal administrator of DOGE, which was established in a Jan. 20 executive order, or whether the position is even filled.

The White House counsel’s office and the DOJ’s Office of Legal Counsel are ordinarily involved in employee arrangements like Musk’s job classification, according to legal experts.

The White House and DOJ didn’t respond to requests for comment on any legal rationale for Musk’s title designation.

FDR-Era Parallel

Still, the White House’s stated designations for DOGE and Musk shouldn’t matter, said Rogers M. Smith, a political science professor at the University of Pennsylvania.

He drew a parallel between DOGE’s actions and a New Deal initiative from President Franklin Delano Roosevelt that the Supreme Court struck down as unconstitutional 90 years ago.

In 1935’s A.L.A. Schechter Poultry Corp. v. United States, the court found the National Industrial Recovery Act, which empowered Roosevelt to let industry groups write new economic regulations, was an excessive delegation of legislative authority to the executive branch.

Musk and DOGE are “acting on federal spending, but the Constitution gives Congress the power of the purse,” Smith said in an email. “So when that power is being wielded instead by a presidential advisor and a presidential committee or task force, whatever DOGE is, it is excessive delegation of congressional power to the executive branch and private individuals, just like NIRA.”

Federal courts are managing at least a dozen requests to halt Trump administration initiatives and prevent Musk’s “government efficiency” team from accessing items such as Americans’ tax records through the IRS.

Some of those cases may leave the judiciary as the ultimate arbiter of Musk’s and DOGE’s roles, while also forcing the government via the Justice Department to make legal arguments supporting its actions.

In the state-led matter targeting Musk’s alleged unlawful appointment, the judge called out DOJ lawyers even while denying a request for a temporary restraining order.

“Defense counsel is reminded of their duty to make truthful representations to the court,” Chutkan said, pointing to contradictions between the DOJ position on DOGE’s authority over agency personnel moves and Trump’s executive order.