Amicus With Dahlia Lithwick | Law, Justice, and the Courts
Episode: The Constitutional Truth At The Heart Of The DOGE Cases
Release Date: March 8, 2025

Introduction

In this riveting episode of Amicus, host Dalia Lithwick delves deep into the constitutional quandaries surrounding the Department of Government Efficiency (DOGE), a controversial entity allegedly headed by Elon Musk. Joined by Kate Shaw, a law professor at the University of Pennsylvania and a Times opinion contributor, Lithwick navigates the murky waters of constitutional law, appointments, and the burgeoning conflict between executive actions and legal boundaries.

The Problem with DOGE: Elon Musk's Role and the Appointments Clause

DOGE, ostensibly a non-agency organization, has come under intense scrutiny for its operations and the purported role of Elon Musk within it. The central issue revolves around whether Musk is functioning as an "officer of the United States" under the Appointments Clause of the Constitution.

Notable Quotes:

• Kate Shaw [01:22]: "There is just so much that is deeply, legally and constitutionally dubious about much of what we have seen in the last six weeks, but in particular about the activities of DOGE."

• Elon Musk [01:30]: "I have created the brand new Department of Government Efficiency DOGE. Perhaps you've heard of it?"

Lithwick outlines how DOGE, despite being labeled a non-agency, wields significant authority that traditionally would require formal appointments and Senate confirmations. This raises critical questions about the legitimacy and constitutional compliance of DOGE's operations.

Legal Challenges and Court Cases

The episode explores several ongoing legal battles challenging DOGE's constitutionality, particularly focusing on the Appointments Clause.

Notable Quotes:

• Kate Shaw [08:38]: "The Constitution sets forth an impeachment process, but it doesn't say anything about the president's ability to fire. So it was actually kind of an issue of real debate at the founding, kind of how you would get rid of an officer of the United States."

Shaw explains the historical context of the Appointments Clause and its intended function as a check on executive power. She highlights recent court cases in Maryland and D.C., where plaintiffs argue that DOGE's formation and Musk's role violate constitutional provisions. Judges in these cases are grappling with DOGE's ambiguous structure and Musk's authority, signaling a potential shift in how executive power is interpreted and limited.

Notable Quotes:

• Kate Shaw [16:13]: "Judge Cannon was totally wrong in that she said, you know, whether he's an inferior officer, he's, you know, if he's a principal officer, he clearly hasn't been appointed by the President and confirmed by the Senate."

Shaw critiques recent judicial decisions that have insufficiently addressed the Appointments Clause, emphasizing the lack of formal appointments for individuals like Musk who wield substantial power within DOGE.

The Role of the Media and Public Perception

Lithwick and Shaw discuss the media's portrayal of DOGE and Musk, emphasizing the importance of accurate representation in public discourse.

Notable Quotes:

• Kate Shaw [49:11]: "It's not so different from him writing an executive order purporting to create a department. It's less facially ludicrous. But it's also lawless."

Shaw and Lithwick express concern over media outlets describing DOGE as a legitimate government agency and Musk as an official leader without the necessary constitutional appointments. This misrepresentation blurs public understanding and complicates judicial proceedings.

Notable Quotes:

• Kate Shaw [50:46]: "It's not so different from him writing an executive order purporting to create a department. It's less facially ludicrous. But it's also lawless."

Lithwick underscores how inconsistent media narratives contribute to the "split screen" phenomenon, where public perception diverges sharply from legal realities, thereby complicating court cases.

Potential Remedies and Legal Relief

The discussion shifts to the possible legal remedies plaintiffs are seeking against DOGE and Musk's alleged overreach.

Notable Quotes:

• Kate Shaw [45:57]: "They are asking the court to declare that they cannot do so."

Plaintiffs in various lawsuits are demanding judicial declarations that DOGE and Musk lack the constitutional authority to perform actions such as auditing federal agencies, terminating grants, and altering workforce sizes. Shaw anticipates that courts will increasingly rule against DOGE as cases progress through the system.

Constitutional Principles and Public Response

Shaw emphasizes the foundational constitutional principles at stake, particularly the prevention of excessive concentration of power.

Notable Quotes:

• Kate Shaw [57:11]: "The entire edifice of this sort of unitary executive theory is a wildly ahistorical kind of enterprise."

• Dalia Lithwick [60:03]: "Who's gonna save us is us."

Shaw articulates how DOGE's operations potentially undermine the Constitution's checks and balances, advocating for public vigilance and legal recourse to preserve democratic principles.

Notable Quotes:

• Kate Shaw [60:03]: "It's deeply misguided... sovereignty flows from the people and that only officials selected through constitutional methods get to wield power in our name."

Shaw and Lithwick conclude by reaffirming the importance of constitutional literacy and active participation in legal challenges to safeguard against executive overreach.

Conclusion

This episode of Amicus offers a comprehensive examination of the constitutional issues surrounding DOGE and Elon Musk's role within it. Through incisive analysis and expert insights from Kate Shaw, listeners gain a nuanced understanding of the Appointments Clause, judicial challenges, and the broader implications for executive power and democratic governance. Lithwick underscores the pivotal role of public awareness and legal action in addressing these profound constitutional dilemmas.

Additional Resources:

• Kate Shaw's New York Times Piece: Link in show notes
• Companion Podcasts:
  • Death, Sex and Money – Episode: "From Uncertainty to Chaos, your stories about the new Trump term."
  • What Next – Episode: "The True Cost of Slashing the Government."

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