Elon Musk in legal battle as 14 states sue the federal government, arguing that his role in the Trump administration violates the U.S. Constitution. Details Here!!!

The words of U.S. Supreme Court Justice Clarence Thomas have found their way into one of multiple lawsuits targeting the Elon Musk-helmed Department of Government Efficiency (DOGE).

Those words will likely prove familiar.

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.

As readers will recall, last summer, Chief Justice John Roberts and a majority of the justices issued a broad grant of presidential immunity; then, two weeks later, U.S. District Judge Aileen Cannon used a concurrence to that opinion by Thomas to squelch Smith’s authority and dismiss the case against Trump with a novel reading of the U.S. Constitution’s Appointments Clause.

Now, led by New Mexico, the latest anti-DOGE complaint uses an Appointments Clause argument of its own.

“There is no greater threat to democracy than the accumulation of state power in the hands of a single, unelected individual,” the lawsuit begins. “President Trump has delegated virtually unchecked authority to Mr. Musk without proper legal authorization from Congress and without meaningful supervision of his activities. As a result, he has transformed a minor position that was formerly responsible for managing government websites into a designated agent of chaos without limitation and in violation of the separation of powers.”

The lawsuit, which names Musk, DOGE, and Trump as defendants, argues the executive branch lacks the authority to either unilaterally create or “dismantle” a federal agency.

“Framers of the Constitution crafted the Appointments Clause to protect against such tyranny in our system of government,” the lawsuit reads. “The Appointments Clause was designed to buttress the separation of powers in two ways: first by requiring that Congress create an office before the President can fill it, and second by requiring that the Senate confirm a nominee to an office created by law.”

To hear the plaintiffs tell it, Musk’s “significant and unprecedented” perch within the Trump administration has effectively rendered him an unappointed “principal officer” of the United States.

“Mr. Musk takes actions that can only be taken by a nominated and confirmed principal officer of the United States,” the lawsuit goes on. “But President Trump did not appoint Mr. Musk with the advice and consent of the Senate. Mr. Musk does not occupy an office created by law and has no authority to exercise the powers of a principal officer, or any other officer. Mr. Musk’s actions violate Article II, Section 2 of the United States Constitution.”

This framework is precisely how Cannon viewed Smith. And, like Cannon, the plaintiffs have cited Thomas to make their 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, § 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.

The plaintiffs are asking the court for a temporary restraining order and a preliminary injunction that directs Musk to disclose how any government data obtained by DOGE has been used so far, that orders Musk to destroy any copies of such data in his possession, and that broadly bars him and DOGE from acting on any such data. The lawsuit contains a laundry list of 10 would-be prohibited actions.

New Mexico and the other states, in often bombastic terms, are also asking the judge to echo some of their legal conclusions and rhetoric by issuing declaratory relief that “Musk’s officer-level governmental actions to date, including those of his subordinates and designees, are ultra vires and shall have no legal effect” and “declare that any future orders or directions by Mr. Musk or DOGE” are similarly unlawful.

No judge has been assigned to the case of this writing.