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    Labor & Employment Law Daily Wrap Up, LITIGATION NEWS, TRENDS—New lawsuits allege Musk and his DOGE team are operating in violation of the Constitution and other laws, (Feb 14, 2025)

    By Brandi O. Brown, J.D.

    Having “delegated virtually unchecked authority to” Musk, President Trump “has transformed a minor position that was formerly responsible for managing government websites into a designated agent of chaos without limitation and in ...

    By Brandi O. Brown, J.D.

    Having “delegated virtually unchecked authority to” Musk, President Trump “has transformed a minor position that was formerly responsible for managing government websites into a designated agent of chaos without limitation and in violation of the separation of powers.”

    In two separate lawsuits, one filed in D.C. federal court and one in Maryland federal court, the plaintiffs similarly claim that Elon Musk appears to be acting as an “Officer[] of the United States” and is wielding unprecedented authority and control over the federal government and within the Executive Branch, all without having been nominated and confirmed. They allege that his actions violate Article II, Section 2 of the United States Constitution, a.k.a. the Appointments Clause.

    States’ suit. In the lawsuit brought in D.C. district court, 14 states (New Mexico, Arizona, Michigan, California, Connecticut, Hawai’i, Maryland, Massachusetts, Minnesota, Nevada, Oregon, Rhode Island, Vermont, and Washington) have sued Musk, U.S. DOGE, and President Donald Trump and state two causes of action. The first, a claim against all defendants for violation of the Appointments Clause of the U.S. Constitution and the other, a claim against Musk and the DOGE entities specifically for conduct exceeding statutory authority. Regarding the latter, they allege that Congress has not provided any authority to DOGE, the Constitution does not provide it any authority, and the temporary organization statute, 5 U.S.C. § 3161, does not provide it with the authority it has purported to exercise. This lawsuit seeks injunctive, declaratory, and other relief.

    “Oblivious to the threat this poses to the nation,” they allege, “President Trump has delegated virtually unchecked authority to Mr. Musk without proper legal authorization from Congress and without meaningful supervision of his activities. As a result, he has transformed a minor position that was formerly responsible for managing government websites into a designated agent of chaos without limitation and in violation of the separation of powers.”

    “Mr. Musk does not occupy an office of the United States and has not had his nomination for an office confirmed by the Senate,” they allege in the complaint. “His officer-level actions are thus unconstitutional.” They ask the court to “restore constitutional order and, consistent with the Appointments Clause, enjoin Mr. Musk from issuing orders to any person in the Executive Branch outside of DOGE and otherwise engaging in the actions of an officer of the United States, and declare that his actions to date are ultra vires and of no legal effect.”

    Does’ suit. In the lawsuit brought in the District of Maryland, a group of over 20 J. Doe plaintiffs, who are current and former employees or contractors of USAID, have sued Musk and DOGE, also stating two causes of action: (1) violation of the Appointments Clause and (2) violation of separation of powers. They seek similar relief.

    They also cite the unprecedented power being yielded by Musk and his “predictable and reckless slash-and-burn pattern” described as the following actions:

    1. “Identify a federal program target, often relying on information posted on his privately owned social media platform, X, to pick them.

    2. Attempt to install his DOGE team—which largely consists of former employees from across a variety of Defendant Musk’s businesses—within the agency or agencies that administer those programs.

    3. Attempt to gain access to the agency’s core operating systems—often demanding access that is forbidden by privacy and security laws for individuals who have no clearance to access that information.

    4. If resistance is met by the duly appointed officers or regular staff, threaten and/or ensure that any personnel roadblocks are placed on leave or otherwise removed. Perhaps amplify threats against staff on X, heightening the risk of third-party harassment.

    5. Use the agency’s internal technology and information systems—again, without proper legal authorization—to identify personnel for termination and contracts for freezing.

    6. Begin dismantling the agency from within by severely disrupting or crippling operations.

    7. Post about his actions either on his personal X account or the official DOGE X account, or both.”

    “It is clear,” they allege” that the duties Musk and his DOGE team are undertaking represent “the performance of [] significant governmental dut[ies]” that may be “exercised only by persons who are ‘Officers of the United States,’” and duly appointed pursuant to the U.S. Constitution’s Appointments Clause, but they note that Musk has not been nominated by President Trump and confirmed by the U.S. Senate, as Article II of the United States Constitution requires.

    And even if Musk “qualified only as an inferior officer (a dubious proposition, given his sweeping powers), Congress has not vested “by Law” the authority to appoint him in the President alone, without the advice and consent of the Senate.” Finally, even if he “could somehow be considered a mere “employee” rather than an “officer” of the United States, his exercise of “significant,” seemingly unfettered authority constitutes a grave violation of the separation-of-powers.”

    The case is No. 8:25-cv-00462-TDC.

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