The Plaintiffs Will Now Likely Get To Trial, In DC US District Court, On Whether Trump Needed The Senate’s Consent, In Order To Put Musk In

In DC, the very capable USDC Judge Tanya Chutkan published a 31 page opinion, last week — explaining how and why Musk and Trump acted lawlessly last Spring. [Just one of several of my backgrounders, here.]

Do read it all — but here is a bit:

…The Appointments Clause is concerned only with the appointment of officers. See New Mexico, 784 F. Supp. 3d at 199 (“To state an Appointments Clause violation, a plaintiff must allege that an ‘Officer of the United States’ has not been constitutionally appointed.” (quoting U.S. Const. art. II, § 2, cl. 2)). The Clause “cares not a whit” about the appointment of “nonofficer employees”—the “lesser functionaries” who make up the vast bulk of “the Government’s workforce.” Lucia v. SEC, 585 U.S. 237, 245 (2018); see also Freytag, 501 U.S. at 880 (nonofficer employees “need not be selected in compliance with the strict requirements of Article II”). But contrary to Defendants’ contention, Plaintiffs have adequately pled that the head of DOGE is an officer of the United States. “In the constitutional context, an ‘officer’ is someone who”: (1) “‘occupies a continuing position established by law,’” and (2) “‘exercises significant authority pursuant to the laws of the United States.’” Al Bahlul v. United States, 967 F.3d 858, 869 (D.C. Cir. 2020) (quoting Lucia, 585 U.S. at 245). The Complaint sufficiently alleges both.

…Plaintiffs have adequately pled that the head of DOGE occupies a continuing position. A position is “continuing” when it (1) is “not transient or fleeting,” (2) is “not personal to a particular individual,” and (3) carries out duties that are “more than incidental to the regular operations of government.” United States v. Donziger, 38 F.4th 290, 297 (2d Cir. 2022). Although a continuing position cannot be transient or fleeting, it need not be permanent….

Plaintiffs have also sufficiently pled that “the position is not personal to a particular individual.” Donziger, 38 F.4th at 297. Although DOGE is most closely associated with its first leader, Elon Musk, the Complaint alleges that Musk led DOGE as a special government employee, a position he was required to vacate after 130 days. See Compl. ¶ 36; see also 18 U.S.C. § 202(a) (defining a “special government employee” as “an officer or employee” who cannot serve for more than 130 days a year).

Given that DOGE will exist for at least 18 months, Plaintiffs have sufficiently alleged that “the position [of DOGE’s leader] is not personal to Musk” and does not disappear after he leaves government. New Mexico, 784 F. Supp. 3d at 201; see also Donziger, 38 F.4th at 297 (a position does not “depend on the identity of the person occupying it” if that individual “could be replaced without the duties of the position[] terminating”). Plaintiffs’ Appointments Clause claim may thus lie against whoever succeeds Musk in leading DOGE. See New Mexico, 784 F. Supp. 3d at 201; see also Fed. R. Civ. P. 25(d)….