When President Donald Trump took office, he brought Elon Musk with him. Musk, the richest man in the world, was the driving force behind creation of the Department of Government Efficiency (DOGE). He has an office in the White House and a team of individuals who carry out his orders across federal agencies. In his role overseeing and administering DOGE, Musk exercises an extraordinary amount of power, single-handedly ordering the dismantling of congressionally funded agencies and life-saving government programs, all while he and his DOGE employees access troves of Americans’ personal data.

A group of civil servants who were suddenly dismissed or forced to stop work at the U.S. Agency for International Development (USAID) by Musk and DOGE filed suit in the United States District Court for the District of Maryland, explaining that Musk and DOGE’s actions were unlawful because Musk’s role at DOGE violates the Appointments Clause and the separation of powers. The defendants moved to dismiss the case. In May 2025, CAC filed an amicus brief in opposition to the defendants’ motion to dismiss. Our brief makes three principal points.

First, as its text and structure make clear, the Constitution’s Appointments Clause has two distinct requirements. First, except for offices set out in the Constitution itself, all other offices of the United States must be “established by Law.” Second, once Congress creates an office, the President can only fill it with the “Advice and Consent of the Senate,” unless Congress itself sets up a streamlined appointment process, available only for “inferior officers.” The words “by Law”—as in, offices must be “established by law”—expressly trigger the Constitution’s requirements for the lawmaking process. Other provisions of the Constitution, like the Ineligibility Clause and the Necessary and Proper Clause, underscore Congress’s exclusive role in the office-creation process.

Second, the Framers sought to break with the British model and stave off tyranny and corruption by separating the power to create offices from the power to fill them in the Appointments Clause. The British monarchs had used their royal prerogatives to create and fill government offices without the involvement of Parliament, creating a corrupt patronage system that spread across the Atlantic, where royal governors exercised significant control over the American Colonies. In fact, one of the grievances against the King in the Declaration of Independence was that he had “erected a multitude of New Offices” in the colonies and filled them with cruel, corrupt, or ineffective officers. When delegates drafted the Constitution, they created a system meant to carefully balance power between the legislative and executive branches, giving Congress the power to create offices and the President the power to fill them (subject to Senate advice and consent).

Third, the unilateral executive establishment of an office like Musk’s is not permitted under the Appointments Clause. Though the defendants argue that the fact that Elon Musk does not occupy an office “established by Law” is a defense to the plaintiffs’ Appointments Clause claim, in fact, the Executive’s unilateral creation of Musk’s office is a substantive violation of the Appointments Clause separate and apart from the fact that Musk was not appointed in accordance with the procedures that Clause mandates. Indeed, two centuries ago, Chief Justice Marshall rejected this exact interpretation of the Appointments Clause in the very first judicial decision interpreting that constitutional provision—a decision that has been reaffirmed repeatedly in subsequent case law.