'The Executive lacks the power to unilaterally create': Lawsuit takes aim at Elon Musk's DOGE using the same Justice Thomas argument that ended Jack Smith's special counsel career
https://www.msn.com/en-us/money/companies/the-executive-lacks-the-power-to-unilaterally-create-lawsuit-takes-aim-at-elon-musk-s-doge-using-the-same-justice-thomas-argument-that-ended-jack-smith-s-special-counsel-career/ar-AA1z0LFN?ocid=hpmsn&cvid=1dc39d0900094e86c5778ee21035be91&ei=16
Story by Colin Kalmbacher (13 Feb 2025)
In a 64-page lawsuit filed by 14 states on Thursday in the U.S. District Court for the District of Columbia, the plaintiffs attacked the basic constitutional legitimacy of the cost-cutting organization with an iteration of the exact same argument that spelled doom for onetime special counsel Jack Smith in the Mar-a-Lago documents case.
From the lawsuit, at length:
Importantly, the Appointments Clause only grants the President the power to nominate officers to offices that Congress has already "established by Law." U.S. Const. art. II, ยง 2, cl. 2. "If Congress has not reached a consensus that a particular office should exist, the Executive lacks the power to unilaterally create and then fill that office." Trump v. United States, 603 U.S. 593, 650 (2024) (Thomas, J., concurring). "By keeping the ability to create offices out of the President's hands, the Founders ensured that no President could unilaterally create an army of officer positions to then fill with his supporters. Instead, our Constitution leaves it in the hands of the people's elected representatives to determine whether new executive offices should exist." Id. at 646 (Thomas, J., concurring).
The lawsuit, in a secondary argument, also says Musk and DOGE are acting beyond any statutory authority.