Anna Bower on the Serious Legal Questions Behind 'Who is the Administrator of DOGE?'

The Genesis of WITAOD

• 💡 The "Who is the Administrator of DOGE?" (WITAOD) question, while having comedic elements, is a proxy for serious inquiries into the chain of command and organizational structure of the Department of Government Efficiency (DOGE).
• 🎯 DOGE was initially announced to be led by Elon Musk and named after a memecoin, creating immediate questions about its nature and leadership.
• 🚀 On day one of Trump's presidency, the United States Digital Service was rebranded as the United States DOGE Service, incorporating new responsibilities beyond its original focus on technological innovation.

Legal Ramifications of DOGE's Structure

• ⚖️ The structure of DOGE is critical for litigation concerning its subject to FOIA requests, with the government arguing it's merely advisory and thus exempt, while good government groups contend it functions as an agency.
• 🏛️ The Appointments Clause of the Constitution is central to litigation, questioning whether the leader of DOGE, wielding significant authority, was properly appointed by the President and confirmed by the Senate.
• ❓ If DOGE is not purely advisory and its leader is not properly appointed, many of its actions, such as dismantling agencies and firing federal employees, could be deemed ultravirus and void.

The Disconnect: Public Statements vs. Court Declarations

• 🎭 A significant disconnect exists between public statements, including those from the President, identifying Elon Musk as the head of DOGE, and official court declarations stating he has no official role.
• 🗣️ This discrepancy raises questions about the ethical duty of candor for Justice Department attorneys representing the administration in court.
• 🧐 The administration's legal strategy appears to be a third option: claiming DOGE is advisory while a powerful individual (initially Musk) wields substantial authority, and then denying that person's official role.

The Role of Elon Musk and Amy Gleason

• 👤 While Elon Musk was publicly presented as leading DOGE, the administration's court filings often denied his official role, sometimes positioning him as a special government employee or senior advisor.
• 👩‍💼 Amy Gleason was eventually named the official administrator of DOGE, but questions remain about whether she possessed real authority or if she was a figurehead.
• 📊 Courts are increasingly looking beyond formal declarations to how DOGE operates in practice, considering evidence like presidential statements and deposition testimony to determine who truly wielded power.

The Enduring Significance of the DOGE Question

• ⏳ Even with Elon Musk's departure from government, the question of who was the administrator of DOGE at the time of critical actions remains relevant for ongoing litigation.
• 🔍 Going forward, if DOGE continues to operate with significant authority, the question of who is in charge will persist, regardless of Musk's involvement, to ensure accountability.
• 🤔 The author's deep dive into the DOGE question stemmed from observing the disconnect between public pronouncements and court proceedings, and the inability of government attorneys to provide clear answers, creating a sense of absurdity and a journalistic quest.
• 📣 The reporting, framed with humor and a performative persona, resonated widely, turning the inquiry into a public movement and influencing judicial questioning.