Who's Running DOGE? It's Not Elon Musk, Says White House

White House Affidavit

In a recent affidavit filed in federal court, the Trump administration has refuted claims that Elon Musk is in charge of the Department of Government Efficiency (DOGE). The affidavit claims that Musk is merely a "senior adviser" to the president with "no actual or formal authority to make government decisions himself."

Contradictory Evidence

This affidavit contradicts previous public statements, including those made by the White House itself, which have indicated that Musk holds a more significant role in DOGE. For instance, President Trump initially announced that DOGE would be run by Musk and Vivek Ramaswamy, a former presidential candidate.

Legal Arguments

Several state attorneys general have filed a lawsuit against DOGE, arguing that the Trump administration has violated the Constitution's appointments clause by giving Musk vast decision-making power without ever having him confirmed for his position by Congress. The administration's affidavit is aimed at undercutting that argument by claiming that Musk is not an "officer" who requires Senate confirmation.

Special Government Employee

The affidavit states that Musk is classified as a "special government employee," which does not require Senate confirmation. However, under the Constitution, "principal officers" who wield authority, such as Cabinet secretaries, must be appointed by the president and confirmed by the Senate.

Moving Legal Status

The legal status of DOGE itself has also been unclear. The Justice Department has argued that DOGE is an agency for some purposes but not others. The affidavit does not clarify who is running DOGE if not Musk.

Legal Expert's Opinion

Law professor David Super argues that the White House's position on Musk "is a little rich, given how many times he and others have said he's running things." He suggests that renaming Musk's position does not circumvent the constitutional requirement for Senate confirmation if he holds a principal officer role.

Possible Advantages for White House

Classifying Musk as an adviser rather than the head of DOGE could provide advantages for the White House. It could spare Musk from a confirmation hearing and allow Trump to claim executive privilege over communications with Musk to avoid Freedom of Information Act requests.

Court Ruling

On Tuesday, Judge Tanya Chutkan declined to grant a temporary restraining order halting DOGE's work. However, she acknowledged that the states had raised serious questions about the constitutionality of Musk's role.