← Amicus With Dahlia Lithwick | Law, justice, and the courts
Amicus With Dahlia Lithwick | Law, justice, and the courts
The Constitutional Truth At The Heart Of The DOGE Cases
01:05:01
Elon Musk cannot, as a legal matter, be simultaneously leading DOGE and also not leading DOGE.
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- [00:02]
Dalia Lithwick
This episode is brought to you by Choiceology, an original podcast from Charles Schwab hosted by Katie Milkman, an award winning behavioral scientist and author of the best selling book how to Change. Choiceology is a show about the psychology and economics behind our decisions. Hear true stories from Nobel laureates, authors, athletes and everyday people about why we do the things we do. Listen to choiceology@schwab.com podcast or wherever you listen. I can say to my new Samsung.
- [00:37]
Unnamed Speaker
Galaxy S25 Ultra hey, find a keto.
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Dalia Lithwick
Friendly restaurant nearby and text it to Beth and Steve. And it does without me lifting a.
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Unnamed Speaker
Finger so I can get in more.
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Dalia Lithwick
Squats anywhere I can.
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Katie Milkman
1, 2, 3 will that be cash or credit?
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Dalia Lithwick
Credit.
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Kate Shaw
4 Galaxy S25 Ultra the AI companion that does the heavy lifting. So you can do you get yours@samsung.com.
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Leon Nayfak
Compatible with select apps.
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Kate Shaw
Requires Google Gemini account. Results may vary based on input. Check responses for accuracy.
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Dalia Lithwick
Hi, I'm Dalia Lithwig. Welcome back to Amicus. This is Slate's podcast about the courts and the law and the Supreme Court.
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Kate Shaw
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.
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Elon Musk
I have created the brand new Department of Government Efficiency Doge. Perhaps you've heard of it? Perhaps a group of very intelligent, mostly young people headed up by Elon that.
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Kate Shaw
No one elected Elon Musk, that we don't have kings. Those are constitutional claims.
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Elon Musk
Elon Musk, who is in the gallery tonight. Thank you Elon. Working very hard.
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Dalia Lithwick
It seemed that this was the week in which all the losing was going to start to catch up with magaworld from tanking the economy with ill advised on again off again tariffs, to a speech before a joint session of Congress that was knitted together by lies to a great big loss at the Supreme Court on a really cruel and reckless effort by the Trump administration to shut down payments on foreign relief efforts that had already been carried out. But none of that has stopped Donald Trump and Elon Musk from persisting in shutting down the many parts of the government they just don't like. Firing workers, terrorizing veterans and Social Security recipients, terrorizing the folks who rely on Medicaid. We are, it seems, in a race to the finish between careless chaos agents and the courts. One of the most vexing aspects of this situation is that Doge, as it has been dubbed, is a non agency headed up by Elon Musk who is not in fact in charge of it On Thursday, President Trump apparently gathered his cabinet, with Musk also in attendance, naturally to assure them that Elon is just an advisor and that they are in charge of their own agency. But then again, he also said this.
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Elon Musk
So we're going to be watching them, and Elon and the group are going to be watching them, and if they can cut, it's better, and if they don't cut, then Elon will do the cutting.
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Dalia Lithwick
For anybody who inhabits the world of actual fact, that means that the phantom head of a phantom agency appears to have an immense amount of power to wreck federal government and terrorize staffers while the administration sends its lawyers into court to say that Doge isn't really doing that and that Musk is really not in charge. This irreducible lie, spoken aloud over and over again in courts, is crazy making on its own terms. So when Donald Trump simply announces that Musk is really in charge to a joint session of Congress, it just becomes madness. Our friend Kate Shaw, one of the hosts of our sister Supreme Court podcast Strict Scrutiny, wrote a piece in the New York Times that attempted to nail all of this appointments clause pudding to the wall this week. And we are going to talk to Kate in just a minute about the constitutional pudding nailing. But before we even get to her, I wanted to make one brief announcement on amicus we care about bringing you critical reporting and analysis about the extensive layoffs happening throughout the federal government. We've been bringing you the latest stories on what it means for the workers and departments who have been affected. Our fellow Slate podcasters Mary Harris over at what Next and Anna Sale on death, sex and Money have hear from these workers themselves. And if you read our work on Slate.com, we've had some incredible reporting from the inside of these government purges. We know how critical access to this type of journalism is, so we're offering Slate plus memberships to any current or former federal government employees who have been affected by these layoffs. For the next six months with your Slate plus membership, you'll also receive unlimited access to any and all coverage about the latest news and culture, and advice columns, of course, across slate.com and our podcasts. Head over to slate.com fedplus to learn more. Okay, back to the constitutional pudding and Doge and to this week's guest, the wonderful Kate Shaw. Kate is a Times opinion contributor. She's a law professor at the University of Pennsylvania, and we just needed to ask her to help us understand the great big musk shaped mass at the center of the Doge shaped mass that lies at the center of the wrecking ball that is Trump 2.0. Kate Shaw, it's wonderful to have you back on the show and tell me if my introduction there was like overheated. But I think it's not just gaslighting, it's kind of like gaslighting and also deliberately seeding a lie that then is retreating from. It's really hard to pin this down.
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Kate Shaw
Well, thank you so much for having me, Dalia. It is always great to try to work through this kind of, you know, putting to the wall problem with you. Yeah, I don't think you've overstated kind of the magnitude of the problem. This kind of black hole that is Elon Musk that sort of is sucking everything in and yet is impossible to sort of get your arms around. And I do think that the disconnect between the representations being made in court, which you alluded to, which are that essentially Musk is not the administrator and maybe exercises no real power at all. And what we are hearing both on Twitter from Musk and during the address to Congress from the lips of the, you know, actual elected president, which is that Musk is in fact running Doge is crazy making. And I think that in some ways it does seem deliberate. I mean, you never know how much intentionality to ascribe to some of these chaotic moves by Trump and his orbit. But it does seem as though they are relishing this, saying one thing in the courts of law and another thing in the court of public opinion and essentially daring the legal system to call them on it. And I think they actually may get tripped up and get called on it, because I do think hope springs eternal. And as you mentioned, you know, the courts do seem to be a little bit kind of running thin on patients for this kind of doublespeak. So it does seem as though there could be consequences in the offing. Although, you know, Trump has this amazing ability to evade in the kind of 11th hour any real consequences. But I do think that you set the problem up.
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Dalia Lithwick
Well, yeah, no, he's the president who is himself made of pudding. It's kind of beautiful. I wonder if we can start with you just coming in as a con law professor and sketching out for listeners who aren't lawyers. Just like Article 2 101. As you say in your piece in the Times, the Constitution is silent on removals of officers. The court has had some stuff to say about it, but the court is actually pretty specific on appointments. And before we even get into sort of the contours of those powers. I just wonder if you can explain, like, at the most theoretical level, Kate, why the focus is on appointments and not removals.
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Kate Shaw
I think it's good to take the two together because for sure, Trump has been on this firing rampage since taking office. He has removed dozens of officials who have explicit statutory protections against being fired for no reason. So look, like everybody agrees that the president has the ability to replace, like, the Cabinet and those kinds of top advisors. And of course, Biden's people were gone by January 20th. So Trump could put his people in there and the next layer down and the next layer down in most places. But there are also these dozens of officials in government who are not supposed to be, and by kind of custom and practice, and sometimes by law, are not removed by one president to be replaced by the next. Trump has just run roughshod over those limitations, banking on his likelihood of being ultimately vindicated by the Supreme Court, which has been very skeptical of those kinds of statutory restrictions on the president's ability to fire. But as you said, Dalia, the whole edifice of this kind of idea that the Supreme Court is increasingly committed to, which is that the President has, like, plenary authority to fire anybody in the executive branch, at least at the high levels, is without any real textual basis in the Constitution in terms of how to get rid of high level officials. 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. And it was pretty quickly decided that despite the silence of the Constitution, there had to be some process for the President removing these high level officials. But whether Congress could regulate that process or not was actually a source of real debate. And it was actually the subject of the first presidential impeachment of Andrew Johnson, who fired a war secretary without getting the Senate to agree. But, sorry, that's sort of a digression. But the point is, there have been kind of debates throughout about how broad the scope of the President's atextual removal power is. But that's just essentially one side of the personnel coin. The other side is this appointments piece. And I think it is actually rich that the Supreme Court and this president seem so deeply committed to the president's power to remove officials, which is nowhere mentioned in the Constitution, but that the President seems not to have much care for what the Constitution explicitly says about appointments of officers of the United States States, because actually that is much more detailed in the constitution. So Article 2 basically says that for officers of the United States, the President appoints, subject to Senate confirmation, the advice and consent of the Senate is the Constitution's language. And then the Constitution goes on to say, but for inferior officers, Congress can give the appointment power either to the President alone or to the heads of departments like the Defense Department, or to the courts of law. So putting the courts of law piece to the side, basically what that has been understood to mean is that for what we call principal officers who are the highest level officials in the government, like the Cabinet secretaries, President has to appoint, Senate has to confirm, that's the only way to get into those positions under the Constitution. But for important, but less important officials, if Congress wants to, it can pass a statute saying, we're going to take the Senate out of the equation. Just the President or just a Cabinet secretary or, you know, a principal officer can appoint these officials. So, sorry, that gets a little bit technical, but I think it's an important point that the Constitution, which is really quiet on a lot of topics, says a lot about how officers the United States are to be appointed. And then there's a question, well, so who is an officer of the United States? And the Supreme Court has actually weighed in on that a lot. It basically says people who exercise significant authority on behalf of the United States are officers. And that's not the same thing as employees. Not everybody who works for the federal government is an officer of the United States. But the high level people who make policy and exercise real power are. And there are only really two ways to get those people into office. President nominate, senior Senate confirms, or if Congress acts, President or a head of department or the courts of law can appoint. And it certainly doesn't seem as though any of that has happened with Elon Musk, who was wielding immense power.
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Dalia Lithwick
So walk me through, if you would. It sure looks like Musk meets the definition. You just lobbed at us of what a principal officer is, right under the rubric you just laid out. And yet they are saying he is a special employee, he's just an advisor. Like, what is the best constitutional argument that is being offered, if there is one in the courts, that Elon Musk, despite what he does and brags about doing and what Trump brags about him doing, that he is in fact not an officer.
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Kate Shaw
So they're saying a couple of things. One is he is simply advising the President. He's not directing anybody to do anything. And just like there are white House officials who advise the president who don't go before the Senate for confirmation. Musk is essentially doing the same thing. And I think here, just to the kind of point you were making at the outset, it's a little bit like the kind of who are you going to believe, this representation or your lying eyes? Like we both know from the things that Musk is saying and directing publicly and that Trump is saying about Musk that he is doing far more than just advising the president. He is exercising enormous directive authority vis a vis, it seems, the Cabinet and officials throughout the executive branch. And that's consistent with the kind of power we understand officers and not kind of these mere advisors to wield. And I mean, to be clear, the Supreme Court has taken a look at a bunch of different positions where, you know, individuals inside the federal government are wielding different kinds of authority. And there have been questions about whether they are wielding too much authority for not being appointed as officers of the United States. And the court has found that these officials who are clearly exercising just way less authority than Musk quite obviously is, are in fact officer of the United States. So examples include administrative law judges at the securities and Exchange Commission that built on an earlier case involving judges of the Special Tax Court, a more recent case involving administrative patent judges at the Patent and Trademark Office, all of these officers of the United States in the patent judge case, possibly principal officers because their decisions weren't subject to meaningful review by somebody above them. So again, these are actors in various parts of the federal government that wield some authority. But I think it's laughable suggest that they wield more authority than Musk clearly is. And yet I think that this sort of double speak about what Musk is doing you are seeing in court, I think does kind of muddy the waters. Right? So it's not statutory authority that is set forth that he is acting pursuant to. So that is sort of one counter argument that the Department of Justice is making. Well, he's just an advisor. He's not wielding statutory authority. He's just in as maybe a special government employee who's going to serve for a limited duration because, you know, the Supreme Court has referenced kind of a continuous exercise of power as an attribute that officers of the United States possess. But continuous doesn't need to be permanent or indefinite. The court has also made that clear. So there are efforts to kind of poke holes in this characterization of what Musk is doing. But I think there remains this kind of information sort of black box. And I think that makes it difficult both for the multiple plaintiffs who have brought these challenges to the permissibility of Musk's occupying this position and exercising this power. And frankly, for the judges, trying to make sense of sort of what the legal framework says about whether this is okay in that we just don't have a great sense of what and where and how Musk and Doge are really operating.
- [16:14]
Dalia Lithwick
Kate, you make the point in your piece that no less a constitutional wizard than Judge Aileen Cannon recently has weighed into this debate in all the wrong ways. But I think just amplifying your point, that it's not just the Supreme Court that has been sort of increasingly capacious in its definition of who is a principal officer, but we've got a district court judge batting away the Check Smith prosecution on these same exact analytical lines.
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Kate Shaw
Absolutely. So we had. Right. The Mar a Lago classified documents case was thrown out by right Trump favorite possible Supreme Court shortlister, Judge Cannon, who dismissed the classified documents case primarily on the basis thesis that Special Counsel Jack Smith was an officer of the United States who had not been appointed consistent with the Appointments Clause. Right. So this is not some fringe theory. This is actually pretty straightforward. Officers of the United States have to be appointed consistent with the Appointments Clause. Now, I think Canon 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. But even if he's an inferior officer, his appointment was unlawful because there isn't a statute that gives the Attorney General the power to appoint him as an inferior officer. And there very was a statute that gave Merrick Garland the power to appoint Jack Smith to serve as this special counsel as he did. So to be clear, the application of this principle, I think was totally wrong. But the first half of the analysis in that opinion, or at least the first part of the discussion, which essentially took as a given that officers of the United States have to be appointed consistent with the Constitution, was totally right. And in some ways, just how casually Judge Cannon acknowledges this, this kind of baseline requirement that if you're going to wield power on behalf of the United States, you have to do it consistent with the Appointments Clause was actually totally right. And I think just underscores how uncontroversial the position is that officers have to be appointed constitutionally and also makes clear that, you know, the examples that I gave of Supreme Court opinions, they involve these kind of, you know, adjudicatory officials. And that is just how the recent cases have come up, but it is by no means just those kinds of officials where their courts have found that the power they're wielding just isn't consistent with the Constitution because they haven't been constitutionally appointed. And I very much think the logic of those cases applies to Musk.
- [18:50]
Dalia Lithwick
Let's pause to hear from some of our sponsors. This episode is brought to you by Choiceology, an original podcast from Charles Schwab. Choiceology is a show all about the psychology and economics behind our decisions. Each episode shares the latest research in behavioral science and dives into themes like can we learn to make smarter decisions? And the power of do overs. The show is hosted by Katie Milkman. She's an award winning behavioral scientist, professor at the Wharton School, and author of the best selling book how to Change. In each episode, Katie talks to authority, authors, historians, athletes, Nobel laureates, and everyday people about why we make irrational choices and how we can make better ones to avoid costly mistakes. Listen and subscribe@schwab.com podcast or find it wherever you listen. This podcast is brought to you by Progressive Insurance. Do you ever find yourself playing the budgeting game? Shifting a little money here, a little there's and just hoping it all works out well? With the name your price tool from Progressive, you can be a better budgeter and potentially lower your insurance bill too. You tell Progressive what you want to pay for car insurance and they'll help find you options within your budget. Try it today@progressive.com, progressive Casualty Insurance Company and affiliates. Price and coverage match limited by state law. Not available in all states. Hey, everybody enjoys a little luxury and I've been hauling myself through airports all week with a secret treat. My cashmere sweater from Quince Cashmere is the big hug we all need right now. But it's not always affordable. Except when it comes to Quince, which is my go to for luxury essentials at affordable prices. I've been rocking my black Mongolian cashmere batwing sweater in pretty much every airport around the country this week, wearing tall black boots and skinny jeans and I think I look very chic Rich mom and it's kind of giving me life. Quince offers a range of high quality items at prices within reach, like 100% Mongolian cashmere sweaters, washable silk tops and dresses, organic cotton sweaters and Quint's Items are priced 50 to 80% less than similar brands. Give yourself the luxury you deserve with quints. Go to quince.comamicus for for free shipping on your order and 365 day returns. That's Q-I N-C-E.comamicus to get free shipping and 365 day returns. Quince.comamicus let's return to my conversation with Kate Shaw about the pudding that is Elon Musk. Just to further expand contract. I don't know the physics of it. The black hole. Then you've got all these little baby Doge Bros running around with or without security clearances, with or without titles, with or without explicit authority, that are in fact doing the hacking into private data and, you know, analyzing who stays and who goes. And it seems to me that that is also a piece of this sort of ambiguous authority where they are just simply walking into agencies putting, you know, curtains up around conference rooms and going. And the sort of sprawl of this, you know, if the original sin here is that Elon Musk is or is not an officer, these subordinates are or are not answerable to somebody who has no authority. Yeah.
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Kate Shaw
Let me answer that question in two ways. One, I think that there is this sort of kind of deep structural point that the Appointments Clause is not just a set of technical requirements, but it is this important structural safeguard in the the Constitution. The Supreme Court has said as much, which just makes clear that the people who wield power in government are doing it in a way where there's a clear, you know, kind of chain of accountability that goes up to the President. And the people who are wielding power on behalf of the President are clearly appointed in a way that is transparent. That, at least in theory, involves the kind of, you know, sort of public check of Senate confirmation in the case of the most powerful officers. So that is essentially the underlying theory, I think, of the Clause. And I think that it also extends, right, not just to the person of Musk, but to the people who are also exercising power under him and at his directives. The kind of obscuring of who and what he is, I think very much extends to the people acting kind of at his behest. But I also think that the Appointments Clause is one piece of the kind of illegality puzzle. I mean, I think that that's in some ways part of the problem. There is just so much that is deeply, legally and constitutionally dubious about much of what we've seen in the last six weeks, but in particular about the activities of Do Doge. I don't want to suggest that the Appointments Clause is the only problem and that somehow a court understanding or accepting that the power wielded by Musk isn't consistent with the Appointments Clause necessarily resolves everything. Right. So maybe just to say a little word about kind of Doge generally, I actually think the initial executive order that establishes what it calls a temporary organization, that is doge, which, you know, I can't say this enough, and I know you say this too, don't you? You know, it's not actually a department which has a real meaning, which is not something created by the President via executive order, but so called Doge, or however we want to refer to it, the creation of an entity as a temporary organization inside the executive office of the President to study and advise is not in itself legally dubious. Right. So if that's all that DOGE was doing was to kind of give a new name and a slightly new mandate to this U. S. Digital service, which was a predecessor entity actually created in the late Obama administration, that actually standing alone is totally fine. But it is what is actually being done under the rubric of Doge that I think it's right, runs into just a welter of legal problems in addition to maybe this kind of or problem, which is the Appointments Clause, is being flagrantly violated. But there are problems that are statutory, that several of the lawsuits that have been filed are seeking documents. It's not totally clear the Freedom of Information act should encompass all of the materials generated by DOGE if it resides in the Office of Management and Budget, which is, I think, where it's supposed to be. And that is definitely an entity that is subject to foia, but it's not clear because again, there's this like Heisenbergian principle, which is that you sort of, as soon as you can see Doge, it then moves somewhere else. So it's not totally clear where it resides, but there are information kind of disclosure, I think problems with DOGE potentially not producing its documents. Right. Pursuant to FOIA requests, Musk and the rest of the employees who are part of DOGE are subject to the ordinary federal conflict of interest laws and a degree of financial disclosure obligations. And it's hard to see how Musk could be complying with the conflict of interest laws which prohibit, you know, individuals subject to the conflict of interest laws from participating in particular matters they have personal financial stakes in. And, you know, ordinarily an ethics official will review the potential conflicts that an individual, even like Musk, even if he is a special government employee or sge, which is what the White House has said, those sges are subject to most of the conflict of interest laws that a federal employee is subject to. So he would not be able to participate in any decision he had a personal stake in. And given the, you know, breadth of his holdings and government contracting activity, it's very hard to see how at least the spirit of those requirements could be complied with. So there are ethics, there are disclosure, and then there, it seems sort of what you might refer to as just sort of ultra verus, like, without legal authority, activities that DOGE employees appear to be engaging in.
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Dalia Lithwick
Right.
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Kate Shaw
Directing employees in federal agencies from treasury to the Department of Education to, you know, CFPB, USAID, etc. Etc. To grant them access to sensitive databases and to allow them to make kind of programmatic decisions that they, frankly don't have any statutory authority to make. So I think that that Appointments Clause is sort of, maybe, I don't know whether to call it the tip of the iceberg or sort of the kind of foundational, sort of fundamental flaw to the whole edifice. So, you know, choose your metaphor. But I don't think by any means that the Appointments Clause is the only legal problem here.
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Dalia Lithwick
It's funny you're describing it in terms of physics. And I am also, like, I keep leaning back into Schrodinger's Doge. You know, it's alive and it's not alive. And every time a judge tries to sort of peer into the box to figure out what's going on, she gets a different story. And you make the point, Kate. And I think this is the nut of the problem that, you know, last week, after being pressed and pressed and pressed on this in the courts and by reporters, the White House, you know, filed a declaration saying that Musk is, quote, a senior advisor to Trump. And they're very clear, right? They, they in a court say that he offers no actual or formal authority to make government decisions himself. He has no formal responsibilities. He's not running do. They were very clear. He's not an employee, he's not an administrator. He's just an employee of the White House, Right? Like that is. They have put that into evidence. That is the claim. And then, like, outside of the black box of the law, as you say, Donald Trump is announcing to a joint session of Congress that Musk is the boss of Doge and he's making all these decisions. And then we have Musk meeting earlier this week with, you know, all sorts of members of Congress, Congress who are Republicans, and giving out his phone number saying, if you don't like a decision, go ahead and give me a call. And I guess I just have this question, which Is. And I know it's a really hard question, but how much is a judge supposed to take judicial notice of the fact that there is a split screen going on here and that what they are being informed inside the box is simply not. Not possible to reconcile with what is happening, in fact, out in the world?
- [29:17]
Kate Shaw
I think it is very hard for judges to know how to proceed. And so I've written a couple of academic pieces about earlier presentations of this question, what judges should make of kind of presidential statements that happen more informally but might bear on pending litigation. And my general view is actually courts should not be too eager to kind of seize on these sorts of. Of casual utterances made by presidents and essentially try to bind presidents or administrations to those representations. Normally, you know, the legal position of the executive branch is provided to courts by lawyers at the Department of Justice. And if there's some tension between the two, actually, the Department of Justice representation is ordinarily the one that courts should credit. So this came up in the early DAPA litigation, which was, you know, President Obama basically said, you know, in a speech in Chicago, extemporaneously, he's responding to hecklers who are accusing him of doing too much deportation. And he says, hang on, you're not paying attention to something, which is that I just took action to change the law by creating this DAPA program, which was a deferred action for parents of Americans, right? A successor to the DACA program and a district judge in Texas, no surprise, basically seized on this as an admission, basically, that this was a legal change that the president had been without authority to make and. And use that as a. As a key basis on which to invalidate the daa. And that, I thought was misguided. The president was speaking, again, colloquially and, you know, not scripted, and offered a defense of his own actions that was not in the form of a kind of formal legal description of, in fact, what he was doing. But. But in the article where I talk about this, I also suggest that where a president is making statements that are in these highly formalized and vetted contexts, like the State of the Union or a joint address to Congress, that's a statement of the legal policy and position of the administration that courts are absolutely justified in putting stock in for purposes of kind of ascertaining the lawfulness or meaning of some executive branch action. So I think it's important that it was in that formal address to Congress that Trump most recently said musk is the administrator of doge. That's not a casual utterance. He's not saying this like on, you know, the White House lawn as he's walking to a helicopter. He has considered and scripted and announced and there's been whatever, 30 seconds of applause and Musk is doing a weird bow. And, you know, this was a moment that was not an unconsidered moment. So in that context, I think it's totally appropriate and actually important for courts not to blind themselves to these facts in the world. And I think certainly these judges need to put to the Department of Justice lawyers before them the question of how to reconcile either declarations or representations made about the actual, you know, kind of power center behind Doge and, you know, what Trump is saying publicly and in this very formal setting. So I think, I guess that's a long answer. But I think it really does depend on what and where. Like, I'm not sure that unsourced descriptions of kind of like White House conversations or even what's happening inside agencies how, if at all, that should bear on what a court does as it's trying to get to the bottom of, of power that Musk is actually wielding, that sort of stuff. I think actually court should be a little bit hesitant to put too much talk in. But this kind of statement, I think is absolutely appropriate. And, and again, I think important for courts not to blind themselves to a statement that is in such both is so public and is in such obvious conflict with the representations previously made to courts.
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Dalia Lithwick
It's funny, Kate, you're at that, like, synapse in my brain that always goes whenever there is a conversation that begins with. But Trump said, because I remember, like early conversations with you in the first Trump era, trying to sort of do the decision tree of how much of these statements, these performative legal statements, you know, have legal force. And it's really helpful to hear that, you know, not every tweet does have legal force and judges can't run around, you know, interrogating every internal memo at every agency, but that there are some performative legal acts by the president that do have some legal force, at least for purposes of this, you know, narrow, as you say, appointments clause infrastructure. I do think we have to talk for a minute about Amy Gleason, because the administration announced again under pressure that Doge has an acting head and her name is Amy Gleason and she's some low profile Trump official who worked on healthcare technology. I gather she was in Mexico last week when it was announced that she's the boss of Doge again. I sort of find myself wanting to know how much Any judge is supposed to be digging into whether Amy Gleason is just kind of a weird cardboard cutout and what indicia they would need to have to find out that she is in fact the acting head of Doge, who is diligently working away telling Elon Musk what to do. Right.
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Kate Shaw
I mean, it's such a preposterous image.
- [34:33]
Dalia Lithwick
Right.
- [34:34]
Kate Shaw
So she's like handing down directives and Musk is sort of dutifully carrying them out. Like, obviously that is not happening. I mean, I would imagine the judges would be interested in actually, you know, hearing from her, at least potentially. I think it's right. She, you know, she's a official at doe. She was previously, you know, in actually, I think, the first Trump and at some point in the Biden administration. So she's got real government service chops. But it was not a name that I think anyone was expecting. I think the White House press secretary initially announced that she, in fact, was the acting administrator, although there were some slight between administrator and acting administrator. And I don't think we've heard anything from her directly. How much kind of probing should these courts do? I, I do think there is a long standing reluctance, often justified on the part of federal courts, of probing too deeply into the internal workings of the executive branch. Right. If there are representations made about what is happening inside the executive branch, it's usually a pretty high bar that's going to move a federal judge to require, again, this sort of institutional black box to be sort of yanked open so that a judge can actually probe what exactly is happening inside the executive branch. I think judges think that's, you know, often a little bit delicate from a separation of powers perspective for us to be inquiring too deeply into exactly, you know, what is happening inside federal agencies. But sometimes these kind of high bars are cleared. So, you know, one example of this is in the litigation over the addition of a citizenship question to the 2020 census, or the effort by the first Trump administration to add that question to the census. Ultimately, there was so much bad faith in the way the Trump administration was explaining to the district court here in New York why it wanted to add this question to the 2020 census, that the district judge allowed some, some depositions of high level officials in the Commerce Department to go forward. Now, you'll remember this, Dalia, the Supreme Court interceded and actually stopped the deposition of the Commerce Secretary, Wilbur Ross, kind of on the grounds that, you know, that very high bar of actually requiring a cabinet secretary to sit for a deposition hadn't been cleared, but allowed additional discovery into what exactly was happening inside Commerce and allowed depositions of other high level officials. So I just, I say all this as an illustration of the fact fact that this ordinary reluctance to probe can be overcome. And the kind of what courts sometimes talk about, particularly in administrative law cases, is the presumption of regularity. Right. Like we just presume that regular order obtains inside the executive branch and courts can essentially take at face value the representations about what and why is going on inside government and are not supposed to constantly be saying, like show us your books, like tell us everything, but that presumption of regularity can be rebutted. And I do think that is going to be an important dynamic going forward as the litigation around the Appointments Clause and a bunch of other kind of legal questions proceeds, how kind of willing to find this presumption of regularity rebutted and thus to kind of justify probing a little bit more deeply inside the executive branch judges are going to be. And I think that if this is a presumption, that is a rebuttable presumption, at least so far, the things we've been talking about give, I think, a pretty good indication that judges should not view themselves as disabled by this presumption from kind of probing.
- [37:48]
Dalia Lithwick
Can you just quickly give us a lay of the land of the cases you just mentioned? There's a couple of cases that are bubbling away that raise the sort of centrally important Appointments Clause question. There's one happening in Maryland, there's one in D.C. another one was just filed on Wednesday. And I wonder if you can just sketch out for us how these are playing out in the lower courts and who the plaintiffs are and the kinds of claims they're making.
- [38:20]
Kate Shaw
So I think there are three now. So there's a case in Maryland, as you mentioned, this is a group of both current and former federal employees and contractors who have been personally and adversely affected by the activities of Doge, which they argue are traceable to this unconstitutional appointment of Elon Musk. And so there was a hearing a week and change ago about, you know, kind of these questions of structure and activities of of Doge. And this was before we had, I think, gotten the Glean announcement. So there were lots of questions about who is running Doge, what Musk's role is, and some kind of skepticism, no initial ruling on the merits of this request. You know, and the request specifically was, at least in the short term, to bar Doge affiliated employees from getting access to records @ this is USAID. Some of the other cases focus on other agencies, but there was a decent amount of skepticism about just what we've been talking about. I think the disconnect between the way the lawyers were describing Doge and Musk and you know, what the press and sort of the public discourse seem to suggest. But again, no immediate ruling in that case. There's a second case in D.C. this one, rather than individual employees, has been brought by a number of states. And there actually was an initial ruling denying preliminary relief to those plaintiffs. But some of the statements made by the judge during that initial hearing did suggest that, you know, it seemed that Musk had rapidly taken steps to fundamentally reshape the executive branch, that he lacked an obvious source of legal authority, that the things being described were exactly the sorts of executive abuses. And here I'm quoting the judge that the Appointments Clause seeks to address. So at least as to those two cases, which are now a couple of weeks old, there seem to be at least real concerns on the part of the district judges about the legal picture being painted by these allegations. And as you mentioned, a third such suit just dropped on Wednesday. This one was brought by a number of advocacy groups represented by, by the Campaign Legal Center. And if I can just quote, your colleague Mark Stern quoted the opening paragraph of this brief on Blue sky. And it really is kind of a banger of an opening. So I think if I could just read a sentence or two. So it opens, quote, defendant Musk is not legally the President of the United States. And then a couple of sentences and then the paragraph ends. But he and his so called Department of Government Efficiency are lawlessly and unconstitutionally wielding sweeping power across the executive Branch. And then they go on. The complaint is like 100 plus pages. But to describe these actions as being without legal authority and in violation of the Appointments Clause and inconsistent with the separation of powers. So these are all kind of different groups of plaintiffs alleging different kinds of injuries, making the same kinds of sort of high level structural constitutional claims. And, you know, if you think, well, is there a disconnect between these plaintiffs saying there's a structural constitutional problem? The Supreme Court has generally been totally willing to say, if you were impacted by something the federal government does and the agency or entity inside the federal government was unconstitutionally constituted or appointed, you have a stake and you can actually get relief. So the head of the cfpb, for example, right. This is a challenge in which the Supreme Court invalidated the restrictions on kind of summary firing that had initially attached to the head of the Consumer Financial Protection Bureau. And the way the case came up was a, you know, a law firm that was being investigated for unlawful practices vis a vis consumers, you know, was subject to a subpoena. And one of the defenses it raised was, well, the head of the CFPB has this unconstitutional protection against being summarily fired by the President. And the Supreme Court agreed with that. So I bring up that example just to say that these plaintiffs are alleging that they are being directly affected by the things that Musk and Doge are doing and that there is a constitutional infirmity at the core of what they are doing and how they are constituted. And I do think that the Supreme Court cases suggest that they do have a right to go to court and a court address the merits of their arguments.
- [42:21]
Dalia Lithwick
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- [43:31]
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- [44:01]
Dalia Lithwick
And we are back with Professor Kate Shaw. What is the relief at the end of the day here? I mean, Nancy Gertner was on the show a few weeks ago and very optimistically said in the manner of Judge Gertner, Officers of the court at the Justice Department are not gonna be comfortable sailing into a federal district court and just lying. And yet, you know, in that same colloquy you raised, you know, with Judge Chuang in Maryland, you literally have him trying to pin down Joshua Gardner, the Justice Department attorney, and asking him, you know, as you said, he's like, this is really very suspicious what you're saying. And he's trying to pin him down on, you know, Elon Musk is tweeting that, you know, they're gonna send USAID quote into the wood chipper. And we have the judge saying, sending something through the wood chipper is not usually reorganization. Right. And we have, you know, Gardner saying, like, I don't even know what that means. And then we have judge coming back and saying, like, who served before Amy Gleason as the DOGE administrator? The judge says, this seems like a knowable fact. And we have Gardner saying, oh, you know, I asked, I. I didn't get an answer. And then when the judge presses Gardner further, we have Gardner complaining that the office of the Justice Department that defends the administration in court has been like, downsized and so they can't keep up with all the lawsuit. Like, it's unbelievable, the level of, of sort of willful misdirection, willful not pursuing the truth. And I guess I just keep finding myself saying, like, is a judge gonna hold someone in contempt? Is anybody on the hook for failing to ask the questions that the judge is asking? I'm just not entirely sure where the relief lies here.
- [45:58]
Kate Shaw
Yeah, I mean, maybe I'll say one thing about the lawyers and then also just like the kind of. The relief question. Yeah. I mean, I have to say, I. My heart really goes out to the DOJ lawyers who are in a truly impossible position. I have no idea what is going on inside the Department of Justice or their conversations with folks in the White House about the DOGE cases or any of the other cases. But I am sure they are getting non answers, spin, conflicting answers. And so they can't really tell that to the judge. But they also need to give answers. So I don't know what the actual facts on the ground are. I think is probably the most candid response. So I guess I don't think that the line lawyers are the ones who should be on the hook if judges are going to be, you know, actually considering things like contempt. But I think supervisors at the Department of Justice, the ones actually making the high level calls, actually should be called into court. If in fact the lawyers, again, most of them who've been there for a long time and are, have decided to stick around and sort of try to do their best in truly impossible circumstances. I'm not sure they're the ones that the court should be focusing their ire on, but I do think that something has to. And you simply cannot allow this kind of non information to be the kind of final answer to the reasonable questions that the judges are asking in these lawsuits raising serious constitutional claims. And in terms of like the specific relief sought, like in some of the cases, you know, what actually are these plaintiffs asking for? Let me just address the third of the cases, the most recent of the Appointments clause cases. They're essentially just looking for a declaration from the judge, or at least in part just looking for a declaration from the judge that these Musk, Doge, Gleason, this whole cabal, does not have the legal authority to do many of the things that they are doing. Auditing executive branch departments and agencies, terminating or canceling federal grants and contracts, directing the termination of actual employees or the contraction of the size of the federal workforce. So the many, many things, right, the exercises of legal authority that Doge is engaging in, that is, according to these plaintiffs, without legal authority, they are asking the court to declare that they cannot do so. I do think they have an actually fairly specific ask. And I think that in relatively short order, we're going to get some merits rulings in, you know, one or more of these cases.
- [48:14]
Dalia Lithwick
Kate, I have to run down this one media question with you because it seems not trivial to me that there is just a gaping press fail that is happening as well. Well, not everywhere, but certainly happening. That we just keep having the media describing Doge as a real agency and describing Musk as the real head of this real agency, forgetting to put in parens. Not a thing. Not a thing. And I wonder if part of what is kind of creating this weird split screen in the courts is this weird split screen in the sort of media and then public consumption of what's going on that makes it seem as though these, you know, really serious, important court cases you've just described for us are sort of like tilting at windmills as opposed to like a statement of actual facts.
- [49:11]
Kate Shaw
Yeah, I think you're right that there is an effort by some. I think you for sure are doing it to remind at every turn that this is not a department, that every time we say it, you know, like, I don't know what the opposite of a fairy getting its wings is. But like that there is something actually destructive in the world that happens each time we credit this claim. I mean, Trump could write an executive order that literally says that Elon Musk is the co president. He could write an executive order that says that he has absolutely no authority to name anyone the co president. The Constitution doesn't permit the creation of a co president. And I think it would be deeply problematic for everyone to then parrot that title when describing Elon Musk. Co president Elon Musk said X. He wouldn't be the co president even if Trump wrote an executive order, so anointing him. And I think you're right.
- [50:00]
Dalia Lithwick
Right.
- [50:00]
Kate Shaw
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. And so I think it is important. And some press outlets for sure are continuing to use the descriptor so called or entity known as. And it's unwieldy. And maybe it's just an efficiency thing a lot of the time. That is why we, you know, don't see that appended every time Doge appears. But I think there is a deep point there that you are kind of, even if totally inadvertently complicit in normalizing this if you refer to Doge without the qualifier each time in the same way you would be if you referred with a straight face to co President Musk. Although I cannot believe I just sort of said that and wheeled it out into the world. But I don't think it's so different.
- [50:47]
Dalia Lithwick
Let, let, let the record reflect that Kate Shaw did not have a straight face when she said a straight face. I don't know if this matters for legal purposes, and maybe we just sort of put it in the mountain of things that judges cannot take judicial notice of. But certainly as a legal matter, not irrelevant that on Wednesday night we get the news that, you know, senior Republican leaderships, members of Congress all met with Elon Musk, not the co president, she says, with a straight face, and discussed all his cuts and then chatted about better communication and he gave them his cell number. Ha, ha, ha. Everybody laughed so that they could, I guess, make, you know, special pleadings, one on one, about anything else they wanted, and then an announcement. Maybe we're going to do this instead of doing all this through impoundments, we're going to do it through a rescission package. You know, let's try to find a way to make it look a little more legal again. I guess this Just, you know, file it under stuff that the non head of non doge probably shouldn't be doing. Is this something that in any way changes the landscape for all of the judges who are trying to think through who's really the boss of the non agency called doge? Or it's just another one of those things that like you and I can be horrified at. But it's how this is going down.
- [52:19]
Kate Shaw
The reporting alone is probably not enough, as atmospherically problematic as it is, and it might penetrate chambers in that way. I'm not sure it's something that will or really should make its way into a written opinion, but it certainly could be the basis if the plaintiffs want to add reference to those kinds of reports, particularly if they have more direct knowledge than just the kind of the things that they've read in the paper. I don't think there's anything that disables judges from inquiring further into it, but, but absolutely it's a horrifying vision. The idea that rather than kind of the regular order in which government decisions about things like spending are made, there'll be these summary eliminations of swaths of federal expenditures and then these kind of one off sort of appeals by co partisan, probably exclusively or primarily Republican senators and members of Congress to get unfrozen various funding streams for things that they need in their own districts. It's just like a horrifying picture of the basest kind of patronage politics and spending. And that is basically where we are. But I'm just not sure that there's a way that judges will directly give effect to that kind of reporting. But I do think it's the kind of thing that could make its way into legal argument and potentially opinion by leading to additional affidavits, kind of questions and answers between lawyers and judges. And in some ways there's a kind of a deeper point here, which is that, look, I don't know if judges are ultimately going to find ways to avoid siding with these plaintiffs in the Appointments Clause arguments and in some of the other arguments. But, and you and I think Judge Gertner talked about this as well. There just is an enormously valuable information forcing function of this litigation. However, it's ultimately decided. We still know way too little about Doge, but we know a lot more than we did before these lawsuits were filed. And I think we're going to continue to learn more. And you know, whatever this Gleason appointment means, I think it's the result of lawsuits actually raising questions about what exactly Musk is doing and what exactly his position is. And again, what the ultimate impact or benefit of that appointment is, I don't know. But I do think that some of these suits will prevail. Lots of them, I mean, in general, not the appointments ones, but lots of them won't. But I don't think that's the ultimate measure of success. There is a lot of good that litigation can do, whatever the sort of bottom line conclusion courts ultimately reach looks like.
- [54:45]
Dalia Lithwick
Kate, I wonder if we can end on the very lofty first principles you started with. You opened your New York Times piece with the image of just people holding up signs outside the Tesla dealerships around the country. And the signs say, quote, no one elected Elon Musk. And your point is exactly the point you just made is the citizenship knows in their bones, even though they may not know the difference between a principal officer and a lesser appointment, they know in their bones that there is, as you write so eloquently in the piece, a constitutional principle that quotes sovereignty flows from the people and that only officials selected through constitutional methods get to wield power in our name. And I think that you see those signs as a sort of avatar, avatar of people really understanding that intuitively, even if they haven't followed the line of cases. And I just want to really unpack before we go this claim from Donald Trump and his supporters that the entire Democratic will at this moment vests in the president alone, who won by a tiny margin, to be clear, although he keeps saying it was by, you know, vast margins, and that that power can get re vested, that imperial boundless power can be re vested in Elon Musk because in their telling, the government is run by unelected bureaucrats anyway. So why not just vest power in my unelected bureaucrat? And I think that Americans intuitively understand the glitch here. But I would just love for you to again, sort of returning to, to this basic idea that the story being told, you can kind of dress it up as unitary executive, you can dress it up as sovereign immunity. There's lots of ways to talk about this. But the notion that the Constitution appoints the president an emperor and then he sort of puts in place lesser emperors is a story they're very eager to tell. And as you say, an enormous amount of the pushback is that even if you only watch Schoolhouse Rock one time in the 70s, you kind of know that's not true.
- [57:12]
Kate Shaw
Yeah, I totally agree with all that. The entire edifice of this sort of unitary executive theory is a wildly ahistorical kind of enterprise. It was never the notion that the entirety of kind of representation would be reflected by the President. Congress is the key representative body, not the President, but the Supreme Court, without really citing constitutional text and in, I think real conflict with most kind of historical accounts, suggests that the President, because the President is the only official elected, I mean, with the Vice president by the whole country, is the most democratically accountable official. And the Supreme Court in all these cases is literally just citing itself in other such cases. And then like Justice Scalia in dissent in the Morrison vs. Olson case, like that's essentially what this whole thing is built on, but it's become this kind of monster that has largely displaced a correct understanding, I think, of Congress's authority. And right now, like, you know, the idea that Congress actually would have any real authority to wield seems kind of laughable. But we're talking about broad constitutional allocations of authority and principles. And so I think it's deeply misguided. And I think you're right that people do get that this, you know, the anti monarchy, the anti concentration of power in particular in one person principle is sort of in our constitutional DNA. So I was teaching, teaching FDR has this Constitution Day speech in 1937 and there's this one really famous line in it which is that the Constitution is not a lawyer's contract, but a layman's document that like it has these principles in it that are supposed to be accessible and intelligible to everybody whether or not you went to law school. And you don't need to know what Article 2 says about appointment to understand that there is something wrong and anti constitutional about the President exercising all the power, power, including the legislative and the judicial power, and also handing it off to somebody who was not chosen by the people and wasn't even appointed via one of the systems that we've been talking about that the Constitution creates. So, you know, I don't want to sound like a constitutional fetishist here, but I think that the kind of mobilization is hugely important whether or not we're talking about the Constitution. But I do think that, that no one elected Elon Musk, that we don't have kings. Those are constitutional claims. And the Constitution is far from infallible, but does actually have principles in it that are worth fighting for and that excessive concentrations of power are fundamentally hostile to liberty. That's one of the principles that's woven throughout it. And I actually think the Court's unitary executive cases are, you know, in fatal conflict with that principle. And I think that people understand that. And so I do think that's kind of the the sort of vein that these Appointments Clause cases are touching. And so I do think there's like kind of a real constitutional truth at the core of them and that you kind of do see the sort of waking of the sleeping giant. I think, of the American public who do seem to be really starting to chafe against these just boundless assertions of executive power. And I hope we see more of it.
- [60:04]
Dalia Lithwick
Kate I love that as a place to land this particular plane, because I think it really is the case that we slightly fell back into the miasma this week of like, maybe Amy Coney Barrett's gonna save us, we, which is predictable and in some sense inevitable when you get a big court order in the first case about Trump's power. But I love what you're saying, which is who's gonna save us is us. And it's going to be by relying on, as you're saying, constitutional DNA that we haven't been great at fighting for. Professor Kate Shaw is one of the hosts of the wonderful podcast Strict Scrutiny. Her piece in the New York Times about the Appointments Clause is reading this week and we'll put it in our show notes. She is a Times opinion contributor. She's a law professor at the University of Pennsylvania, and more often than not, when I find myself just swirling down the drain of not knowing what it all means, a voice that I rely on. Kate, thank you so very, very much for your work and your time and for reminding us where kind of the locus of constitutionalism needs to be.
- [61:18]
Kate Shaw
Thank you so much for having me. Dalia, it is always wonderful, wonderful to talk to you.
- [61:22]
Dalia Lithwick
One more thing before we go. I want to recommend a couple of companion episodes to this one from our insanely talented Slate podcast friends and colleagues. If you want to hear more stories from people who have a front row seat to the ransacking of the federal government at the hands of Elon Musk's dodgy dogeters. Check out Death, Sex and Money's episode from earlier this week, From Uncertainty to Chaos, your stories about the new Trump term. And check out what next episode the True Cost of Slashing the Government. Search your favorite podcast app to listen. That's all for this episode. Thank you so much for listening and thank you so very much for your letters and your questions. You can keep in touch@amicuslate.com or you can always find us@facebook.com we really love hearing from you in today's bonus episode of Amicus plus Mark Joseph Stern and I are sidling up to the bar in the Rumpus room of doom to discuss an interesting judicial gender divide when it comes to water, pollution and sewage. Another big court order attempting to unfreeze promised government funds. This time it's female and the unhinged letter sent by your favorite lawless officer of the law and mine eagle Ed Martin, the interim acting U.S. attorney in the District of Columbia, to the Dean of Georgetown Law School. I hope you're sitting down. That bonus episode is available for you to listen to right now. We will see you there. You can subscribe to Slate plus Audio directly from the Amicus show page on Apple Podcasts and Spotify. You can also visit slate.comamicus plus to get access wherever you listen and federal workers affected by these layoffs. Please don't forget your special link slate.com Fed/ Sara Burningham is Amicus's senior producer. Our producer is Patrick Fort Hillary Fred Ray is Slate's editor in chief, Susan Matthews is executive editor and Ben Richmond is our senior director of operations. We'll be back with another episode of Amicus next week.
- [63:48]
Leon Nayfak
I'm Leon Nayfak and I'm the host of Slow Burn. Watergate Before I started working on this show, everything I knew about Watergate came from the movie all the President's Men. Do you remember how it ends? Woodward and Bernstein are sitting at their typewriters, clacking away. And then there's this rapid montage of newspaper stories about campaign aides and White House officials getting convicted of crimes. About audio tapes coming out that prove Nixon's involvement in the COVID up. The last story we see is Nixon resigns. It takes a little over a minute in the movie. In real life, it took about two years.
- [64:22]
Dalia Lithwick
Five men were arrested early Saturday while trying to install eavesdropping equipment. It's known as the Watergate Incident.
- [64:29]
Leon Nayfak
What was it like to experience those two years in real time? What were people thinking and feeling as the break in at Democratic Party headquarters went from a weird little caper to a constitutional crisis that brought down the President? The downfall of Richard Nixon was stranger, wilder, and more exciting than you can imagine. Over the course in the course of eight episodes, this show is going to capture what it was like to live through the greatest political scandal of the 20th century. With today's headlines once again full of corruption, collusion and dirty tricks, it's time for another look at the gate that started it all. Subscribe to Slow Burn now, wherever you get your podcasts.
- [65:06]
Katie Milkman
Hi, I'm Josh Levine My podcast the Queen tells the story of Linda Taylor. She was a con artist, a kidnapper, and maybe even a murderer. She was also given the title the Welfare Queen, and her story was used by Ronald Reagan to justify slashing aid to the poor. Now it's time to hear her real story. Over the course of four episodes, you'll find out what was done to Linda Taylor, what she did to others, and what was done in her name.
- [65:37]
Kate Shaw
The great lesson of this for me.
- [65:40]
Leon Nayfak
Is that people will come to their.
- [65:42]
Kate Shaw
Own conclusions based on what their prejudices are.
- [65:44]
Katie Milkman
Subscribe to the Queen on Apple Podcasts or wherever you're listening right now.