Does the Unitary Executive Theory Legitimize DOGE?

Seven years ago, Donald J. Trump stood before an auditorium of teenagers and offered what was either a novel constitutional theory or a confession of sorts: “Then, I have an Article II, where I have the right to do whatever I want as president.” Responding to allegations of Russian collusion, Trump invoked the Unitary Executive Theory (UET), the doctrine that Article II’s vesting of “the executive Power” in the President grants him singular, hierarchical authority over the execution of federal law [1]. What was a passing remark has since become a foundational doctrine for the most aggressive expansion of executive power in recent American history.

In his second term, Trump has actuated his theory of complete control through the Department of Government Efficiency (DOGE), launching sweeping personnel purges and institutional restructuring across the federal government [2]. The Social Security Administration, serving over 70 million Americans and administering one of the largest repositories of personal data worldwide, is among the most consequential targets [3]. While precedent like Seila Law theoretically gives the President the authority to remove the SSA Administrator at will, this essay argues that that power does not justify DOGE’s actions last year. Acting Commissioner Michelle King was not fired by Donald Trump, but resigned in February 2025 after reportedly refusing DOGE access to SSA systems. DOGE’s intervention was therefore operational. In that case, even accepting Trump’s Unitary Executive Theory (UET), such intervention would still require a chain of command running through properly appointed officers. By bypassing the Administrator to access NUMIDENT (the SSA’s comprehensive database), push out career staff, and restructure the agency from the inside — all through Elon Musk, a private actor never confirmed by Congress — the administration created an Appointments Clause violation that UET cannot defend.

The Trajectory of Precedent

For those seeking to entirely insulate the SSA from DOGE, the precedent is not encouraging. The President almost certainly retains the authority to remove the SSA Administrator at will. In Seila Law LLC v. CFPB (2020), the Supreme Court held that an agency led by a single director and vested with significant executive power must be subject to at-will presidential removal. The majority acknowledged the SSA’s analogous single-Administrator structure. It noted that President Clinton himself had questioned the constitutionality of the SSA’s removal restriction when signing it into law [4].

Collins v. Yellen (2021) pressed further. An amicus brief filed flagged the SSA and other federal agencies as destabilized by the Court’s removal-restriction holding. The Court’s response was a solid non-answer: “None of these agencies is before us, and we do not comment” [5].

Even Justice Kagan, the Seila Law dissenters’ most forceful voice, conceded that Seila Law ought to hold. Writing in Collins, she acknowledged that “the doctrine of stare decisis requires us, absent special circumstances, to treat like cases alike — even when that means adhering to a wrong decision” [6]. The issue here is no longer whether or not Seila Law was correctly decided. Rather, the question is whether the SSA is legally distinguishable from the CFPB.

On that question, Trump v. Wilcox (2025) carved out the Federal Reserve on the grounds that it follows a distinct historical tradition rooted in the First and Second Banks of the United States [7]. The SSA enjoys no analogous carve-out. The President’s authority to remove the SSA Administrator at will appears legally defensible.

Where DOGE Complicates Everything

Even still, Elon Musk is not the President.

The Appointments Clause establishes a clear hierarchy: Principal officers must be nominated by the President and confirmed by the Senate; inferior officers may be appointed by the President alone or by department heads if Congress so authorizes; mere employees fall outside the Clause's requirements entirely [8]. The test for officer status is functional. In Buckley v. Valeo (1976), the Court held that “any appointee exercising significant authority pursuant to the laws of the United States is an ‘Officer of the United States’” subject to the Clause [9]. Lucia v. SEC (2018) maintained that an officer is one who occupies a continuing position established by law and exercises significant authority. The inquiry thus centers on actual authority wielded, not title formally assigned [10].

Applied to Musk, multiple federal courts found the “significant authority” threshold likely satisfied. Over five continuous months, Musk directed agency actions across virtually every federal department, accessed sensitive government systems, terminated billions in contracts, and dismantled congressionally created agencies [11]. Judge Theodore Chuang found Musk was “at a minimum, likely the official performing the duties and functions of the USDS Administrator” and had “exerted actual authority at USAID that only a properly appointed Officer can exercise” [12]. New Mexico v. Musk allowed Appointments Clause claims to proceed on analogous grounds [13].

UET’s strongest proponents, including Steven Calabresi and Christopher Yoo, have argued that the President has constitutional authority to remove and direct all lower-level officials who exercise executive power [14]. But the entire edifice of removal-power jurisprudence, from Myers through Collins, concerns the President’s relationship with properly appointed officers. Chief Justice Roberts wrote that the Constitution “assumes that lesser executive officers will assist the supreme Magistrate in discharging the duties of his trust” [15]. The officers in question are constitutional agents, operating within the Appointments Clause framework. The framework was not designed to accommodate unconfirmed private actors carrying $38 billion in government contracts [16].

The nondelegation doctrine reinforces the point. Courts have long subjected private entities to heightened scrutiny when delegated governmental authority, with the D.C. Circuit noting that “even an intelligible principle cannot rescue a statute empowering private parties to wield regulatory authority” [17]. Justices Alito and Thomas have opined that private parties can never wield federal regulatory authority because they are not part of Articles I, II, or III [18].

Conclusion

The irony of DOGE is that its constitutional defect exists within Article II, the same article which Trump boldly claimed to “have.” The SSA’s vulnerability to presidential removal is, by the lights of current precedent, largely settled: The Administrator is likely removable at will. But removal is not the only way executive power touches an agency. DOGE’s actual intervention at SSA was an exercise of ongoing operational authority, not a firing. And that authority, routed through Musk, cannot be squared with the Appointments Clause. UET can justify the President’s removal of the SSA Administrator. It cannot justify a private citizen running the agency in his stead.

Footnotes:

[1] Michael Brice-Saddler, “Trump Falsely Tells Auditorium Full of Teens the Constitution Gives Him ‘the Right to Do Whatever I Want,’” The Washington Post, July 23, 2019, https://www.washingtonpost.com/politics/2019/07/23/trump-falsely-tells-auditorium-full-teens-constitution-gives-him-right-do-whatever-i-want/.

[2] Center on Budget and Policy Priorities, “Trump Administration, DOGE Activities Risk SSA Operations and Security of Personal Data,” April 1, 2025, https://www.cbpp.org/research/social-security/trump-administration-doge-activities-risk-ssa-operations-and-security-of.

[3] Meryl Kornfield and Elizabeth Dwoskin, “DOGE Member Took Social Security Data on a Thumb Drive, Whistleblower Alleges,” The Washington Post, March 10, 2026, https://www.washingtonpost.com/politics/2026/03/10/social-security-data-breach-doge-2/. The immediate stakes of DOGE’s intervention at SSA are significant, in that the agency administers benefits to over 70 million Americans. But the data privacy dimension raises distinct and broader questions. SSA’s NUMIDENT database contains records, including Social Security numbers, dates of birth, place of birth, and parents’ names, for virtually every living American. It has historically served cross-agency functions well beyond benefits administration: state Medicaid programs rely on SSA data to verify citizenship eligibility, and federal immigration enforcement has drawn on SSA records to cross-reference residency and work authorization status. See Center for American Progress, “DOGE’s Data Digging at the Social Security Administration Puts Millions of Americans at Risk,” April 28, 2025, https://www.americanprogress.org/article/doges-data-digging-at-the-social-security-administration-puts-millions-of-americans-at-risk/. This paper, however, does not evaluate whether the executive’s exercise of access to this data is wise or appropriate policy; the normative question of whether legitimately held constitutional power ought to be deployed in a particular way falls outside the scope of legal analysis, unless ethical judgment is itself a recognized element of the applicable legal standard.

[4] Seila Law LLC v. Consumer Financial Protection Bureau, 591 U.S. ___ (2020) (slip op. at 20), https://www.supremecourt.gov/opinions/19pdf/19-7_n6io.pdf.

[5] Collins v. Yellen, 594 U.S. ___ (2021) (slip op. at 32 n.21), https://www.supremecourt.gov/opinions/20pdf/19-422_k537.pdf.

[6] Collins v. Yellen, 594 U.S. 220 (2021) (Kagan, J., concurring in part and concurring in the judgment) (slip op. at 32), https://www.supremecourt.gov/opinions/20pdf/19-422_k537.pdf.

[7] Trump v. Wilcox, 145 S. Ct. 1415 (2025), https://www.supremecourt.gov/opinions/24pdf/24a966_1b8e.pdf. Notably, the carve-out appeared in a two-page unsigned stay order rather than a merits opinion, and Justice Kagan’s dissent criticized it as converting “an assumption made to humor a dissent” in Seila Law footnote 8 into something resembling a holding. Its precedential weight accordingly remains uncertain.

[8] U.S. Const. art. II, § 2, cl. 2; Buckley v. Valeo, 424 U.S. 1, 126 (1976) (establishing that only those exercising “significant authority” qualify as officers, thereby placing mere employees outside the Clause’s reach); Edmond v. United States, 520 U.S. 651, 659–663 (1997) (articulating the principal/inferior officer distinction).

[9] Buckley v. Valeo, 424 U.S. 1, 126 (1976).

[10] Lucia v. SEC, 585 U.S. 237, 245–248 (2018).

[11] Tierney Sneed, Zachary Cohen, and Katie Bo Lillis, “As Musk Steps Back, DOGE Moves Forward with More Cuts, Sweeping Agency Changes,” CNN, May 17, 2025, https://www.cnn.com/2025/05/17/politics/musk-doge-future.

[12] Does 1-26 v. Musk, No. 8:25-cv-00462-TDC (D. Md. Mar. 18, 2025) (preliminary injunction opinion), 2025 WL 840574, at *— (Chuang, J.). The quoted language appears at pages discussing the Appointments Clause analysis: the first quotation (“at a minimum, likely the official performing the duties and functions of the USDS Administrator”) is drawn from the court’s finding that Musk functionally led the U.S. DOGE Service regardless of his nominal title as White House senior advisor; the second (“exerted actual authority at USAID that only a properly appointed Officer can exercise”) reflects the court’s conclusion that Musk’s actions triggered Appointments Clause scrutiny. The Fourth Circuit subsequently stayed the preliminary injunction pending appeal on March 28, 2025. Does 1-26 v. Musk, No. 25-1273 (4th Cir. Mar. 28, 2025), 2025 WL 1020995.

[13] New Mexico v. Musk, 784 F. Supp. 3d 174 (D.D.C. 2025). The ruling was a denial of the government’s motion to dismiss, not a decision on the merits; Judge Chutkan held only that the states had adequately alleged that Musk occupied a continuing position established by law and exercised significant authority without proper appointment, satisfying the Buckley/Lucia standard sufficiently to proceed.

[14] Steven G. Calabresi & Christopher S. Yoo, The Unitary Executive: Presidential Power from Washington to Bush 3–4 (Yale Univ. Press 2008). Calabresi and Yoo define the theory as holding that the Vesting Clause of Article II, which states that “the executive Power shall be vested in a President of the United States of America”, constitutes a substantive grant giving the President “the power to remove and direct all lower-level officials who exercise executive power.”

[15] Seila Law LLC v. Consumer Financial Protection Bureau, 591 U.S. 197, 213 (2020). The phrase “supreme Magistrate” is Roberts’s quotation of George Washington, drawn from a 1793 letter in which Washington described the President’s role in the constitutional order. Roberts invokes it to ground the removal power in founding-era understandings of executive hierarchy: because the President cannot personally execute all federal law, lesser officers necessarily act as extensions of his authority and must therefore remain accountable to him. The removal power follows as a structural corollary in that without it, the chain of accountability from officer to President to electorate would be broken.

[16] Desmond Butler, Trisha Thadani, Emmanuel Martinez, Aaron Gregg, Luis Melgar, Jonathan O'Connell & Dan Keating, Elon Musk’s Business Empire Is Built on $38 Billion in Government Funding, Wash. Post (Feb. 26, 2025), https://www.washingtonpost.com/technology/interactive/2025/elon-musk-business-government-contracts-funding/.

[17] Ass’n of Am. Railroads v. U.S. Dep’t of Transp., 721 F.3d 666, 670 (D.C. Cir. 2013) (Brown, J.), rev’d and remanded sub nom. Dep’t of Transp. v. Ass’n of Am. Railroads, 575 U.S. 43 (2015). The D.C. Circuit opinion, authored by Judge Janice Rogers Brown, held that Congress had unconstitutionally delegated regulatory standard-setting authority to Amtrak — which the court deemed a private entity — over its railroad competitors, characterizing the arrangement as
“legislative delegation in its most obnoxious form” (quoting Carter v. Carter Coal Co., 298 U.S. 238, 311 (1936)). The Supreme Court reversed on the threshold ground that Amtrak is a governmental rather than private entity, thus avoiding the constitutional question; Justice Alito, concurring, nonetheless acknowledged that “even the United States accepts that Congress cannot delegate regulatory authority to a private entity,” 575 U.S. at 57 (Alito, J., concurring) (quoting the D.C. Circuit).

[18] Dep’t of Transp. v. Ass’n of Am. Railroads, 575 U.S. 43, 57–58 (2015) (Alito, J., concurring); id. at 58–84 (Thomas, J., concurring in the judgment). Justice Alito wrote that “even the United States accepts that Congress cannot delegate regulatory authority to a private entity,” and that “[w]hen it comes to private entities [exercising governmental powers], however, there is not even a fig leaf of constitutional justification.” Id. at 57 (Alito, J., concurring) (internal quotation marks omitted) (quoting Ass’n of Am. Railroads v. U.S. Dep’t of Transp., 721 F.3d 666, 670 (D.C. Cir. 2013)). Justice Thomas, concurring separately in the judgment, argued for abandoning the “intelligible principle” test altogether in favor of a framework grounded in the original meaning of Articles I, II, and III, under which federal legislative, executive, and judicial power can be wielded only by entities constitutionally vested with those powers. Id. at 58–84 (Thomas, J., concurring in the judgment).