We have long said that Musk will never submit his finances to the review required to clear a cabinet level nomination. And his acts thus far (we’ve argued, and now USDC Judge Chuang has proved,a nd held) violate the Constitution. We have a process for wielding this power. Even Hinderaker admits now — Musk is… cooked.
He utterly failed to submit himself for that approval. Game over, here — as this is a muscular 68 page masterwork of an opinion. Here’s a bit; but do read it all:
“…The Appointments Clause of the Constitution lays out the permissible methods of appointing ‘Officers of the United States,’ a class of government officials distinct from mere employees.” Lucia v. Sec. & Exch. Comm’n, 585 U.S. 237, 241 (2018) (quoting U.S. Const. art. II., § 2, cl. 2). The Appointments Clause divides Officers of the United States (“Officers”) into two categories. “”[P]rincipal’ officers” may be appointed only by the President, with the advice and consent of the United States Senate. United States v. Arthrex, Inc., 141 S. Ct. 1970, 1979 (2021). “[I]nferior officers,” may be appointed in the same manner, or, if Congress so provides, they may be appointed by “the President alone,” by a federal court, or by the head of a department. See id. at 1979-80 (quoting U.S Const. art. II, § 2, cl.2).
Defendants have not disputed that Musk has not been duly appointed as either a principal or inferior Officer. Plaintiffs characterize Musk as the de facto USDS Administrator, a position established by the DOGE Executive Order, while Defendants assert that Musk’s official position is Senior Advisor to the President. While both positions are appointed by the President, Musk was not subjected to Senate confirmation, and it is undisputed that Congress did not establish either position as an inferior Officer position subject to appointment by the President only. Accordingly, neither role is that of an Officer.
Plaintiffs argue that the Appointments Clause was violated because Musk carried out the functions of an Officer without being appointed to such a role. To have acted as an Officer, an individual must: (1) “exercise] significant authority pursuant to the laws of the United States”; and (2) “occupy a ‘continuing’ position established by law.” Lucia, 585 U.S. at 245 (citations omitted)….
Plaintiffs argue that Musk has “exercis[ed] significant authority pursuant to the laws of the United States.” Buckley v. Valeo, 424 U.S. 1, 126 (1976) (per curiam). Plaintiffs assert that Musk has done so at USAID in a number of ways, including by unilaterally cancelling government contracts; causing USAID personnel who refused to give DOGE Team Members access to USAID systems to be placed on administrative leave; shutting down the USAID website and blocking USAID employees from accessing computer systems; and directing the closure of USAID headquarters….
Here, the record supports the conclusion that the USAID officials were not actually independent actors and that even if they were, they in fact would predictably sign off on the actions directed or taken by Defendants. President Trump publicly acknowledged that Musk and DOGE wield significant influence across federal agencies when he stated in an interview that Musk “take[s] an executive order that I’d signed, and he would have those people go to whatever agency it was” and then “some guy that maybe didn’t want to do it, all of a sudden, he’s signing.” J.R 480. Notably, USAID officials who refused to comply with Musk’s demands to give DOGE Team Members access to USAID secured facilities and computer systems were subsequently placed on administrative leave. DOGE’s level of influence, if not control, is further illustrated by a media account reporting that in some instances when Secretary Rubio directed that certain programs should continue to be funded, DOGE Team Members “would veto” the payments, and because they had control over the electronic payments system, the funding was not released. J.R. 572-73.
Furthermore, Marocco has effectively confirmed that DOGE played a role in key decisions by acknowledging that he “sometimes consult[s] or coordinate[s] with policymakers and others at [DOGE]” including by consulting with “the DOGE Team on certain matters, including personnel.” J.R. 412-13. Finally, the email that contained the RIF notices sent to J. Doe 11 and J. Doe 21 was sent from a USAID email account created by Kliger, a DOGE Team Member, and the relevant metadata shows that Kliger in fact sent out those RIF notices.
The record thus supports the conclusion that relevant actions specifically taken by USAID officials were taken as predictable responses to [Musk personally, and DOGE] Defendants’ directions and actions, and that, at a minimum, Defendants were directly involved in causing those actions through their role in effectuating personnel and contract actions and terminations. See Dep’t of Commerce v. New York, 139 S. Ct. 2551, 2566 (2019). Under these circumstances, the Court finds that Plaintiffs have satisfied the traceability requirement. . . .
Say goodbye to… one Elon Musk. He cannot be confirmed — because he will not disclose all his manifold conflicts — which run into the middle hundreds of BILLIONS of dollars… in the roles he is taking, without lawful authority. Out.
नमस्ते
