Seth
Barrett Tillman, Associate Professor
Maynooth
University School of Law and Criminology
Scoil
an Dlí agus na Coireolaíochta Ollscoil Mhá Nuad
New House—#53
Maynooth
University
Maynooth
County
Kildare
Ireland
W23 F2H6
(academic
title & affiliation for identification purposes only)
7
March 2025
Letters
Editor
New
York Times
RE: Professor Katherine Shaw, ‘There Is No Musk Exception in the Constitution,’ New York Times (4 March 2025).
Is
Elon Musk an “officer of the United States” who President Trump must appoint
via the Constitution’s Appointments Clause? Professor Shaw answers “yes.”
She explains:
Mr. Musk appears
to be wielding significant power, as evidenced by his presence at the
administration’s first cabinet meeting last week. He was the first to speak
after the president’s introduction. He boasted about pushing federal
employees to respond to an email about their work, inveighed about the
federal deficit and casually disclosed that his team had inadvertently canceled
funding for Ebola prevention—an error he claims was quickly rectified,
but may not have been. The email he mentioned appears to have been dashed
off without advance warning even to the cabinet. (emphases added by Tillman)
Shaw indicated that the test for being an “officer of the United States” is that the purported officer exercises “significant power.” That is entirely wrong. As the Supreme Court explained in Buckley v. Valeo (1976), the test is that the purported officer exercises “significant authority” which binds the United States as a legal matter. There is a world of difference between Shaw’s position and the Supreme Court’s. Spouses (like Jill Biden, like Hillary Clinton) and White House confidants frequently exercise very real power through giving advice and recommendations to the President (or to cabinet members), but such advisors do not wield or purport to wield legal “authority.”
As to the other evidence Shaw puts
forward—she speaks to where Musk was “presen[t],” who he “speak[s]”
to, who and what he criticizes or “inveigh[s]” against. Not one
thing on this list of Musk’s purported “significant powers” is remotely close
to what the Supreme Court has determined to be unlawful when exercised by a
nonofficer. And even if it were, the most that Shaw can muster is that it “appears”
that Musk has acted unlawfully. Her best example is that Musk’s “team,” as
opposed to Musk himself, purportedly canceled a contract on behalf of the U.S.
government. But that might mean no more than Musk recommended that course of
conduct and that the responsible secretary, under-secretary, or high level
civil servant acted on Musk’s advice (which was only relied upon at the
direction of the President). In those circumstances, Musk will have tendered a
recommendation, not a final decision binding the government. That’s not enough—not
nearly enough—to make him an “officer of the United States.”
Elected officials, indeed
especially elected officials, get to speak and to hear others speak. Such
freedom of thought, speech, and association is crucial to any common understanding
of American democratic self-government. A not insignificant number of our citizens
believe that First Amendment norms are under attack. I am sure it was
inadvertent, but I have little doubt that Shaw’s editorial will only confirm
their concerns and fears.
Seth Barrett Tillman
Seth Barrett Tillman,
From what I can tell, the incessant claim that Musk or DOGE are firing people is technically, and substantively, wrong. Any firing can be done by someone with the authority to do it, which may be after receiving advice from Musk or DOGE. This sloppy usage hints at a nonexistent crisis of authority in the executive branch. It is a superficial effort to discredit Musk and DOGE. So far, they seem to be identifying important deficiencies and potential corruption. The recipients of huge sums of money, which changed hands outside of public scrutiny, would like very much to draw the curtains again. So far, those efforts have not been popular, or successful.
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