Elon Musk’s latest frontier isn’t cars or rockets; it’s a “read-only” glimpse into the federal payment system. According to news reports, he and his team at the Trump administration’s Department of Government Efficiency have reviewed a variety of payments, so far focusing on those coming from USAID and Medicare.
This review has sparked claims that Musk lacks the right to undertake government activities. More generally, Musk’s presence in the administration has been criticized as an undemocratic takeover. But the law, democracy, and precedents from the Obama and Biden administrations all support his new role.
Legally, Musk is a special government employee of the Department of Government Efficiency. DOGE is just a renamed version of the previously extant United States Digital Service. President Obama created the USDS within the Executive Office of the President in 2014. He used it to hire outside talent to help improve digital services following the infamously glitchy rollout of Obamacare.
Similarly, Musk and his team are outside talent brought temporarily into the Trump administration. The team is analogous to corporate consultants like those at McKinsey, who go over an institution’s operations exhaustively. Such consultants frequently begin with a data analysis of where corporate payments are going.
There is no doubt that Musk qualifies to be a special government employee—an individual hired for his special expertise for no more than 130 days. He surely has special skill in management and efficiency.
Critics nevertheless argue that Musk is acting illegally because he is only an employee, whereas taking action requires appointment as an officer of the United States. It is true, as the Court stated in Buckley v. Valeo, that only officers of the United States can exercise “significant authority under the laws of the United States.” But advice-giving does not constitute such authority, and the Supreme Court has made clear that advisors need not be officers. Musk’s access allows him to see government payments and make recommendations but not act on them himself. The president or the president’s subordinate officers can act, or they can ask Congress for assistance.
Early in the Biden administration, Democratic heavyweight Anita Dunn served as a senior advisor in the White House. Like Musk, she was a special government employee. She undoubtedly made a substantial difference to that administration’s decisions, though she did not sign any of its orders or regulations. To be sure, like Dunn, Musk cannot himself cut off funds or shut down programs. The legality of these funds and programs turns on the authority given to the president or other subordinates under organic statutes. That’s where objections, if any, to the administration’s actions should be directed.
But the Dunn example shows what’s wrong with court orders that limit what DOGE employees can see, assuming they have the relevant security clearances. As Dunn did, these officials work in the Executive Office of the President, which regularly reviews information throughout the government. The president has the constitutional authority to oversee the executive branch. He thus must be able to deploy the employees in his office to help him assess information and determine what is happening at the agencies under his control. Otherwise, we lose the “energy” in the executive that Alexander Hamilton said is one of its principal virtues.
Senator Adam Schiff and others have alleged that Musk has conflicts of interest. Musk certainly has potential conflicts—but so did Dunn, who, unlike Musk, had long worked as a lobbyist. We have no reason to believe that Musk has not managed his conflicts as well as Dunn. And it is especially hard to see where these conflicts would exist as regards his work on Medicare and foreign aid.
Beyond the questions of legality, some fear that Musk’s influence signals a move from democracy to plutocracy. But Musk’s standing as a political advisor is rooted not primarily in his wealth but in his reputation as a disrupter. His ventures epitomize technological audacity: revolutionizing the automobile industry with Tesla, pioneering private space exploration through SpaceX, or integrating the human brain with the digital world though Neuralink.
These innovations evoke a profound aspect of America’s national identity. Frederick Jackson Turner famously argued that the American character was forged on the frontier, where the ethos of unbounded opportunity prevailed. Turner noted that the closure of the physical frontier posed a challenge to America’s self-conception. Musk’s work reopens the frontier—not by looking to a westward land mass, but by gazing outward to the stars and inward to the human mind.
Musk thus embodies the themes of Trump’s campaign. Trump rode back to the White House on a promise to disrupt entrenched dysfunction and restore American greatness rooted in individual opportunity and national ambition. In Musk, he has found a kindred spirit, whose career exemplifies these ideals. Musk’s frontier mindset will allow him to make novel recommendations.
Whether one admires or distrusts Elon Musk’s disruptive style, his appointment to review government expenditures and advise about them is clearly within U.S. law—and it reflects the vision that voters supported when they elected Trump president again.
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