Illegal Firings, Security Breaches, and Political Fallout—A Crisis in American Governance
ARTICLE II, SECTION 2, Clause 2 of the U.S. Constitution states in its Appointment power clause for the President:
He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the Supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.
The Appointments Clause establishes two tiers of officers: (1) principal (or superior) officers, who must be appointed by the President with the Senate’s advice and consent; and (2) inferior officers, who must be appointed in the same manner unless Congress, by law, has vested their appointment in the President alone, in a court, or in a department head.
Both types of officers are individuals who occupy positions wielding significant authority. This distinction is important, as the Constitution prescribes different appointment requirements for each.
The Supreme Court has observed that the Framers provided little guidance on where the line between principal and inferior officers should be drawn. Accordingly, the Court has developed its own evolving standards to distinguish these officers.
The Court’s approach to distinguishing principal and inferior officers has evolved over time. Early Appointments Clause cases did not present a clear picture of the differences between principal and inferior officers, often focusing on the method Congress prescribed for a given officer’s appointment or the duration of an officer’s tenure.
When questions concerning the principal-inferior officer distinction resurfaced in the second half of the twentieth century, the Court applied a functional, multi-factor analysis, emphasizing that inferior officers had more constrained duties and less discretion than principal officers.
In 1997, the Court took a more formalist approach, defining an inferior officer as one whose work is directed and supervised at some level by others who were appointed by presidential nomination with the advice and consent of the Senate.
This means Elon Musk is an inferior officer and, therefore, not authorized to issue orders as the Special Government Employee of the U.S. Federal Reserve in charge of DOGE.
The decisions he made and the arbitrary firings he carried out were completely illegal and without the concurrence of the Merit Systems Protection Board (MSPB, akin to India’s UPSC but with far more powers).
The system is similar to that in India, where an officer temporarily holding an additional post cannot exercise quasi-judicial powers in that role. Only the Secretary of the Ministry, approved by the Appointments Committee of the Union Cabinet, can do so.
Even the Secretary is bound to follow the mandated due process prescribed by Parliament under Article 309. Mere Senate approval of a principal officer does not exempt them from following due process.
Contrast this with DOGE’s five-bullet-point email, demanding justification for a civil servant’s work within just 72 hours—failing which they would be fired! In India, the most draconian provision is Article 311(2), where a civil servant can be dismissed only if holding an inquiry is either inexpedient or impossible—both subject to intense judicial scrutiny.
All of Musk’s firing orders are illegal. Even his hiring of teenage freelancers at DOGE violates regulations. There are established rules for recruitment, even for contract employees, and Musk has violated each one. There are also stringent security clearance requirements that Musk has brazenly disregarded.
These violations and firings are now the subject of a civil suit filed by 14 Democrat-led states, currently being heard by a U.S. federal judge. The presiding judge has requested information and original documents detailing the basis of Musk’s firing decisions. Another civil suit questioning Musk’s legal status is currently before another federal court.
The best course of action for President Trump would be to fire Musk immediately to prevent further legal complications for the U.S. Federal Reserve and to quell public outrage. However, he cannot do so easily, as Musk contributed $288 million to his campaign.
The President needs to set aside his personal biases if he wishes to complete his current term in office. His recent clarification that Musk’s decisions require presidential approval is too little, too late, as the firings have already occurred and public outrage has been sparked.
After all, the U.S. Federal Reserve is not a neighbourhood grocery store or a mom-and-pop shop. 
Also Read: Trump, Musk, and the Cabinet of Yes-Men
Shantanu Basu
Writer is a retired senior civil servant, public policy analyst, author and commentator.
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