Walter Olson
Only days ago, Trump administration lawyers were unable to tell a judge who was the administrator of DOGE, Elon Musk’s Department of Government Efficiency, which by slashing agency outlays and personnel around the federal government has stirred broad national controversy. As a legal matter, the question is important because the answer could help determine whether DOGE, also known as the U.S.D.S., is in or out of compliance with various statutes and also with the Constitution’s Appointments Clause (Article II, Section 2, Clause 2), which provides that the Senate must confirm principal officers of the government, as Musk has not been.
At a hearing, Judge Colleen Kollar-Kotelly of the federal district court in Washington said she had “some concerns about the constitutionality of U.S.D.S.’s structure and operations,” particularly given the Appointments Clause. Complainants in other lawsuits around the country, including one before Judge Tanya Chutkan, also of the federal district court in Washington, have likewise sought to pin down DOGE’s elusive organization chart.
David Ingram of NBC News quotes me on the studied ambiguity, as you might put it, with which the administration has met inquiries about the agency’s power, responsibilities, and chain of command.
It’s a strategy that some legal analysts said was meant to shield both Musk and DOGE.
“Over the last few weeks, the administration, its lawyers, Elon Musk, and individual DOGE employees have taken a bewildering variety of positions,” Walter Olson, a senior fellow for constitutional studies at the libertarian Cato Institute, said in an email. Olson said he believes the Justice Department’s stance is a strategy designed to battle the lawsuits challenging Musk’s authority.
Olson compared the strategy to a shell game, but he said he doubts it will work for long, noting that judges can take testimony under oath.
“It can put judges on their guard if they see the walnut shells of responsibility shuffled around so that the pea keeps being absent from the shell the opponent picks,” he said. “If the court process can freeze the position taken, the game can stop working after a couple of rounds.”
On Tuesday, the administration announced that DOGE has an acting administrator in the person of a career federal employee named Amy Gleason. According to The New York Times, “Ms. Gleason did not immediately respond to a request for comment. She was scheduled to be on vacation in Mexico on Tuesday and told associates that she was not aware ahead of time that the White House planned to make public her role, according to people familiar with the situation, who spoke on the condition of anonymity out of fear of retaliation.”