The Originalism Blog

Marbury v. Madison and the Alien Enemies ActMichael Ramsey

At his substack "Executive Functions," Jack Goldsmith considers the issues relating to the President's invocation of the Alien Enemies Act against the Venezuelan gang Tren de Aragua (TdA).  (Via Jonathan Adler and Volokh Conspiracy.) He begins with the heading "The Alien Enemies Act Issue on the Merits Is Not Simple" -- and then gives an admirably simple summary of the issues, which he sees as three: (1) "is TdA perpetrating, attempting, or threatening an invasion or predatory incursion against the territory of the United States within the meaning of the AEA?"; (2) "whether the incursion (if it is that) 'is perpetrated, attempted, or threatened against the territory of the United States by [a] foreign nation or government'”; and (3) what is "the scope of judicial review?"

I'm going to try to answer these (especially the third) by reference to Marbury v. Madison, which I think is a good starting point, at least, for an originalist analysis.  Marbury, of course, expressed the idea of judicial review, but it is also the foundation of the nineteenth-century version of the political question doctrine -- a much more defensible version than some modern versions.  Marbury says:

By the Constitution of the United States, the President is invested with certain important political powers, in the exercise of which he is to use his own discretion, and is accountable only to his country in his political character and to his own conscience. To aid him in the performance of these duties, he is authorized to appoint certain officers, who act by his authority and in conformity with his orders.In such cases, their acts are his acts; and whatever opinion may be entertained of the manner in which executive discretion may be used, still there exists, and can exist, no power to control that discretion. The subjects are political. They respect the nation, not individual rights, and, being entrusted to the Executive, the decision of the Executive is conclusive.

And later:

The province of the Court is solely to decide on the rights of individuals, not to inquire how the Executive or Executive officers perform duties in which they have a discretion. Questions, in their nature political or which are, by the Constitution and laws, submitted to the Executive, can never be made in this court.

As to Professor Goldsmith's questions --

(1) Whether there is "an invasion or predatory incursion against the territory of the United States within the meaning of the AEA?"  This seems like a straightforward question of law and facts that is within the courts' judicial power.  It is not a matter of executive discretion within Marbury's meaning; it's just a question of what the statute means and what evidence the President has offered taht the relevant event has occurred.  (On the merits, the President's argument seems fairly strong here; at least as I understand TdA's activities, they seem reasonably described as a "predatory incursion.")

(2) Whether the incursion "is perpetrated, attempted, or threatened against the territory of the United States by [a] foreign nation or government”?  Professor Goldsmith says this one is "hardest for the government," but I also think it is the one most encompassed by Marbury's idea of a political question.  Professor Goldsmith explains:

The proclamation states that TdA “is closely aligned with, and indeed has infiltrated,” the “regime” of Venezuela’s president, Nicolás Maduro, and is part of a “hybrid criminal state,” whatever that means. A brief on appeal says that TdA is so “intertwined” in “Venezuela’s state structures,” that it is “a de facto arm of the Maduro regime.” It adds, as an “independent rationale,” that TdA is “a de facto government in the areas in which it is operating.”

I do not think one can know for sure at this stage how this issue should be resolved. The administration's factual basis for its claims have been thin. Yet there are many contexts in domestic and international law where “private” individuals or organizations are deemed to be an arm of the government or state, and the president has the exclusive power to recognize states or governments. The test for whether an action is “by [a] foreign nation or government” under the AEA is, I believe, one of first impression, and will depend on the proper legal framework (there are a few possibilities), and more factual development.

I think this is right as far as it goes, but for me the key consideration is this: the extent of the Maduro government's responsibility for TdA is not merely a legal and factual question.  It is also a matter of U.S. foreign policy -- to what extent does the United States want to hold the Maduro government responsible for TdA?  As a result, the decision comes within Marbury's idea of executive discretion.  The United States has discretion as to how much to view TdA as an arm of the Venezuelan government for foreign policy purposes.  Various foreign policy implications flow from doing so or not doing so.  And the President, who has executive power to conduct U.S. foreign affairs, is the branch of government charged by the Constitution with making that discretionary determination.  Marbury's direction, then, is that courts are not an appropriate forum to review that decision.

(3) Thus my answer to Professor Goldsmith's third question -- the scope of judicial review -- depends on what determination is being reviewed.  As to the presence (or not) of a "predatory incursion," I think that is the sort of question courts can review, because it does not involve substantial foreign policy discretion.  As to the responsibility of the Maduro government for TdA, that is a much more policy-sensitive determination which seems more infused with executive discretion, and thus less suitable for courts.

Finally, although it's outside the scope of Professor Goldsmith's essay, there is a fourth issue: whether, as to any individual deportee, that person is in fact a member of TdA.  That point is critical to the President's authority over any particular individual under the Alien Enemies Act, by the terms of the President's executive order.  And that question seems to be a judicial question -- again, a question of law and (especially) fact, not a question of executive discretion.  (And further, as Ilya Somin argues here, it would appear to have constitutional foundations as a judicial power under the due process clause.)  And it is most firmly within Marbury's idea of the courts as protecting the "right so individuals."

In sum, the implications of this assessment appear to be (1) the question whether TdA is involved in a "predatory incursion" under the statute is best understood as a judicial question (but the President seems on strong ground in finding such an incursion);  (2) the question of the relationship between TdA and the Maduro government, while an element of the statute, seems best understood as a matter of executive foreign policy discretion; and (3) while the first two points together give a plausible defense of the President invoking the statute against TdA, any individual target should have the ability (indeed, likely a constitutional right) to contest that person's membership in TdA -- as a judicial question.

Laurence Claus: The Law of Constitutional CaptureMichael Ramsey

Laurence Claus (University of San Diego School of Law) has posted The Law of Constitutional Capture (19 Vienna Journal on International Constitutional Law (forthcoming 2025)) (48 pages) on SSRN.  Here is the abstract:

Constitutional capture is commonplace in the world today. A government that was built to be for the common good, the public interest, is rebuilt from the inside to become a government for the interests and preoccupations of the leadership. That leadership finds ways to keep governing a people while ceasing to be truly accountable to those people. This article identifies and explains the deep legal mechanisms at work in constitutional capture. In doing so, the article finds a way to rescue our endangered democracies that has been overlooked in contemporary scholarship.

A substantial interdisciplinary literature has recognized that singular leadership stabilizes tyrannies. Having one person as chief executive is the natural, equilibrium form of tyranny, to which tyrannies by committee, such as military juntas, tend to move. The existing literature on democratic erosion and constitutional capture has not recognized that singular leadership destabilizes democracies. Having one person as chief executive is democracy’s Achilles heel, the structural feature most responsible for democratic erosion and constitutional capture. Legal systems grow from converging expectations that singular leaders are uniquely situated to shift. This article explains how having one true leader poses its unique threat to constitutional democracy and why formal checks and balances by legislatures and courts are insufficient to neutralize this threat. The article identifies constitutional alternatives that avoid this danger and have been proven by comparative constitutional experience to let constitutional democracy thrive.

The President's Power to Respond to Attacks by the HouthisMichael Ramsey

Somewhat lost among other news, the President has apparently directed substantial military action against the Houthi militia in Yemen.  Although I have a more limited view of the President's power to conduct hostilities than some scholars (see here), I think this action is within the President's power.

I assume for this analysis that directing hostilities against a non-state actor such as the Houthis constitutes "war" for constitutional purposes, and thus is potentially limited by the Constitution's assignment of the declare-war power to Congress.  (I'm not entirely sure this is correct: I took this position in the article linked above but I have come to somewhat doubt it.  If this is not correct, then the President's power is not limited by the declare war clause, and is presumably within his commander-in-chief power.)

The declare war clause would (on this assumption) prevent the President from initiating hostilities against the Houthis.  But as I understand the facts, the Houthis have been systematically attacking U.S. shipping, including U.S. naval vessels, in the Red Sea for some time.  As a result, the situation is properly understood as the Houthis initiating war against the United States, prompting a U.S. response.

It's widely agreed that the President can direct at least some military response to attacks on the United States, including (at least) attacks on U.S. military forces.  The more difficult constitutional question is why this is so.  (It's true that Madison said so at the Philadelphia Convention, but that doesn't make it right or explain why it is right.)  Alexander Hamilton had an explanation that I find persuasive, as I describe in The President's Power to Respond to Attacks.  Writing in response to the Tripoli conflict in 1801, Hamilton reasoned as follows: if a foreign power attacks the United States, that action declares war.  The President's action in response to that attach is thus taken within the context of an existing war; it does not declare war itself.  Hence, a presidential response does not infringe Congress' declare-war power, and is authorized by the President's commander-in-chief power.

Thinking about the declare-war power this way helps resolve the next constitutional question, which is critical in the Houthi situation.  Again, it's widely assumed that the President can direct a response to attacks at least to the extent of defending against the attacks.  But can the President go further and order the military to take the offensive against the attackers, as it appears the President has done regarding the Houthis?  Hamilton's answer was yes (in the analogous situation with Tripoli) because once war is begun by the other side, the declare war clause does not limit the President's ability to respond, and the commander in chief power allows the President to take military action the President thinks is necessary.  On that reading of the clauses, the action against the Houthis -- even very substantial counteroffensive action -- is constitutional.

Saikrishna Prakash: The Inconvenience DoctrineMichael Ramsey

Saikrishna Prakash (University of Virginia School of Law) has posted The Inconvenience Doctrine (78 Stanford L. Rev. ___ (forthcoming 2026)0 (51 pages) on SSRN.  Here is the abstract:

Many disdain the use of consequences in legal interpretation. Yet it turns out that interpreters have long used consequences, particularly inconvenient consequences, to decode the law. In the eighteenth century, an argumentum ab inconvenienti-a claim that an alternative reading of the law must be mistaken because of its bad consequences-was a routine technique, perhaps almost as common as an argument grounded on the letter of the law. This article unearths Founding-era evidence of the surprisingly widespread use of consequences to both defeat opposing readings and to decode a law's meaning. Commentators, including Matthew Bacon and Joseph Story, recounted the practice, and litigants, judges, executives, and legislators regularly implemented it. This use of consequences was scarcely controversial, as there seems to have been no one at the Founding who highlighted its difficulties or drawbacks, much less rejected the practice. Instead, the likes of John Marshall, Alexander Hamilton, James Madison, and many others deployed arguments from consequences to determine the meaning of federal and state law. What is an epithet today-result oriented-was something of an apt description of the interpretive practices of the era. As Thomas Jefferson observed, an argument from consequences was one of the "great foundations of the law.

Curtis Bradley: Sovereign Power ConstitutionalismMichael Ramsey

Curtis Bradley (University of Chicago Law School) has posted Sovereign Power Constitutionalism (University of Chicago Law Review, forthcoming 2025) (69 pages ) on SSRN.  Here is the abstract:

The constitutional text seems to be missing a host of governmental powers that we take for granted, including powers relating to immigration, Indian affairs, acquisition of territory and resources, and the regulation and protection of U.S. citizens abroad. The Supreme Court suggested an explanation for these and other missing powers in its famous 1936 decision, United States v. Curtiss-Wright Export Corporation. Upon becoming a nation, the Court contended, the United States automatically acquired powers “equal to the right and power of the other members of the international family”—powers that inhered in the government “as necessary concomitants of nationality.” Although the Curtiss-Wright decision has been heavily criticized, this Article defends the Court’s suggestion that the federal government’s authority is informed by conceptions of nationhood. As will be shown, many areas of U.S. constitutional law rest on a presumption that the nation acquired the full complement of sovereign powers allocated to nations under international law, and this has been the case throughout much of U.S. history. This presumption has been manifested at times through broad interpretations of the constitutional text, but on other occasions it has been manifested through invocations of inherent authority. Importantly, and contrary to what many critics of Curtiss-Wright assume, the sovereign power presumption does not require either a rejection of constitutional constraints or a preference for presidential over congressional authority.

As the article says, inherent sovereign power is not necessarily inconsistent with originalism, depending on what the history might show.  But I think it is inconsistent with the Constitution's text, and the Court's arguments in its favor are either not originalist or not persuasive (as summarized in this article: The Vesting Clauses and Foreign Affairs, part II.C).  I also think that the extent of "missing" powers is somewhat exaggerated.  Descriptively, though, the article is right that the Court has relied and -- even in a more textualist and originalist time -- continues to rely on inherent powers, and perhaps even more importantly that the political branches do.

A Comment on "The Plain-Meaning Fallacy"Evan Bernick

[Ed.: for this guest post, commenting on Bill Watson's paper "The Plain Meaning Fallacy," we welcome back Evan Bernick, Associate Professor of Law at the University of Northern Illinois College of Law.]

Bill Watson’s post on the “Plain Meaning Fallacy,” like his (generally excellent!) underlying article, seems weighed down by a subtle confusion between descriptive and normative accounts of originalism, as well as a misunderstanding of a leading descriptive account. The result is a compelling argument that suffers from misplaced criticism of at least two originalists.

Watson claims that a Hartian positivist account of law suggests that plain original public meaning is the law. He defines plain original public meaning thus:

A constitutional provision’s OPM is plain with respect to some case insofar as reasonable legal experts today would (1) agree that reasonable legal experts at the time of ratification would have understood the provision to communicate a certain content and (2) agree on how that content applies to the case at hand.

Un-plain original meaning, then, is all other original public meaning, and Watson claims that un-plain OPM is not the law. Therefore, he contends that Will Baude and Steve Sachs are somewhat right, mostly wrong, to claim that “originalism is our law.” Officials (and, according to Baude and Sachs’s gloss, members of the public more generally) need to converge around any rule of recognition that specifies the criteria for legality around here, on a Hartian account. Watson asserts that there is no convergence around un-plain OPM, so the latter can’t be part of our rule of recognition.

I think this is probably right—un-plain OPM is not our law. But do Baude and Sachs claim otherwise?

In a response to Charles Barzun’s critique of their work, Baude and Sachs claim that originalism is underwritten by our rule of recognition and is “our law” in at least seven respects. Helpfully, they provide a list:

(1) We treat the Constitution as a legal text, originally enacted in the late eighteenth century.

(2) This constitutional text regulates the selection of legal officials, even when such regulations are unpopular or contrary to tradition.

(3) Actors in our legal system don’t acknowledge, and indeed reject, any official legal breaks or discontinuities from the Founding.

(4) We rely on technical domesticating doctrines, themselves rooted in preexisting law, to blunt the practical force of novel originalist arguments.

(5) Original meaning sometimes explicitly prevails over policy arguments in constitutional adjudication, but the reverse doesn’t seem to be true.

(6) Our treatment of precedent makes sense if original sources determine the Constitution’s content but not if precedent does.

(7) More generally, there are no clear repudiations of originalism as our law in the current canon of Supreme Court cases, even in situations where the Justices must have been sorely tempted. (“Grounding Originalism” at 1477-8).

As far as I can tell, none of these premises about originalism being “our law” commit Baude and Sachs to the conclusion that judges “converge in searching for a constitution’s most likely OPM all the way to the point where one reading is a smidge more plausible than another.” (Watson at *23). That’s a problem for Watson, insofar as he understands the falsity of that conclusion to require the amendment of their thesis.

Now, Watson might well respond that in that event the Baude-Sachs “our law” thesis does not have much bite and that originalists still do not have thickly normative reasons for following un-plain original meaning. That’s a problem for originalists to the extent that (1) they are making thickly normative claims and (2) original meaning is often not plain enough to resolve very much. It’s also not a problem that Baude and Sachs have together tried to resolve by providing normative arguments for either plain or un-plain meaning. Baude has separately endorsed an oath-based normative argument for following originalism-as-law, but Baude and Sachs in their joint work are very expressly not engaged in a thickly normative project and Sachs has never owned thick normativity in this context. Regardless, Watson would still have to accurately describe the our-law claim before challenging any thickly normative justification that Baude or Sachs might provide for it.

I do think that Watson is on to something. There’s a gap between what Baude and Sachs expressly claim and the public reception of their arguments, particularly among conservatives. When conservative originalists say that originalism is our law, they often mean that original meaning legally beats all comers, regardless of whether it is plain, and that original meaning (plain or unplain) is therefore normatively binding on judges who promise to obey the law. I’ve argued that the ought does not follow as easily as that, and I’m glad that Watson ends up in a place of substantial agreement. But these charges of fallacious reasoning seem mistaken, even if not plainly so.

Earl Maltz: The Myth of the Fourteenth Amendment and the Civil Rights Act of 1866Michael Ramsey

Earl M. Maltz (Rutgers Law School) has posted The  Myth of the Fourteenth Amendment and the Civil Rights Act of 1866 (12 pages) on SSRN.  Here is the abstract:

Although legal scholars who focus on the original meaning of the Fourteenth Amendment disagree about many things, almost all agree that John Bingham proposed what was to become section one of the amendment in order to definitively establish the constitutionality of the Civil Rights Act of 1866. In fact, however, the Joint Committee on Reconstruction chose to insert the Bingham formulation in place of a provision that would have explicitly constitutionalized the Civil Rights Act. This comment describes the circumstances that provided the backdrop for the consideration of the Bingham proposal and the implications that this context has for our understanding of the original meaning of section one.

The Plain Meaning FallacyBill Watson (guest blogging)

[Ed.: for this post we welcome Bill Watson, Assistant Professor of Law, University of Illinois Urbana-Champaign College of Law, for a post on his forthcoming article The Plain Meaning Fallacy (noted here), and some responses to my comments.]

 

In this post, I'd like to clarify the paper's argument a little. The paper stipulatively defines plain original meaning as, roughly, original meaning that is beyond reasonable dispute. The paper then argues that leading justifications for originalism fail to attend to the normatively significant differences between plain and unplain original meaning. For instance:

• Baude and Sachs argue that judges should enforce original meaning because it is the law. But on the Hartian picture of law that Baude and Sachs accept, only plain original meaning is the law. Unplain original meaning cannot be the law because legal officials do not converge in accepting and treating it as law. (Nor, to reference Baude and Sachs's spin on the Hartian picture, does our "official story" make unplain original meaning the law.)
• McGinnis and Rappaport argue that original meaning, in virtue of being accepted by a supermajority of ratifiers, is likely to be practically wise, such that judges are more likely to act rightly by following it than by reasoning on their own. But it makes no sense to follow a practically wise directive if you're sufficiently uncertain of what the directive is asking you do to. At some level of uncertainty, you're more likely to act rightly by reasoning on your own.
• Many originalists argue that enforcing original meaning promotes the rule of law (i.e., promotes predictability, consistency, and stability in constitutional adjudication). But when original meaning is not plain, judges can reasonably disagree over what original meaning is asking them to do. It's hard to see how enforcing unplain original meaning would promote predictability, consistency, or stability in constitutional adjudication.
• Etc., etc. The paper makes similar points with respect to other common justifications for originalism.

You specifically mention that, "if you think a judge's duty is to apply the law as directed by the law's enactors, to the best of the judge's ability, that doesn't depend on it being easy to find what the enactors' directions are." My response is, first, that plainness (as I define it) has more to do with disputability than with ease of discovery. But more importantly, for the same reasons that I use against Baude and Sachs, plainness matters to someone who thinks that it's a judge's duty to apply the law because unplain original meaning is not the law. Given a Hartian picture of law, and given my understanding of contemporary U.S. legal practice, once the Constitution's plain original meaning (and any associated precedent) runs out, the law also runs out. At that point, simply applying the law isn't an option. 

 

Now, that response might be too quick. You include the caveat that a judge should apply the law "to the best of the judge's ability." One way of taking that caveat is as saying: "When the law (on certain philosophers' account of law) runs out, judges shouldn't fall back on discretion. Instead, they should enforce the norm that is the most law-like or the closest to being the law, i.e., that comes closest to satisfying the criteria for being law even though it lacks one criterion (plainness)." We could make the same point without using the (very slippery) word "law": "When the criteria that judges widely accept as criteria for identifying constitutional norms fail to resolve the constitutional question at hand, then judges should keep looking to the same criteria and should try to satisfy those criteria as best they can."

 

I'm not tempted by a position like that (at least when it comes to constitutional law), but I'm happy to concede that I don't have a knockdown argument against it. The point that I want to make is a negative one: originalists haven't yet offered a justification for a position like that. None of the common justifications for originalism adequately explain why judges should keep trying to apply the law "to the best of their ability" once plain original meaning runs out. Maybe such a justification is possible. But I haven't seen it, and I think that it would be very hard to do. You'd have to somehow show that judges ought to automatically defer to unplain original meaning (as opposed to balancing it as one factor among others), even though judges can reasonably disagree over what unplain original meaning is asking them to do in the case at hand.

Alli Orr Larsen: Is History Precedent?Michael Ramsey

Alli Orr Larsen (William & Mary Law School) has posted Is History Precedent? (78 Stan. L. Rev._(forthcoming 2026)) (50 pages) on SSRN.  Here is the abstract:

It has been just over two years since the Supreme Court instructed lower courts to evaluate Second Amendment challenges by examining history and tradition.  And it is no secret that the courts have struggled.  This article tackles a phenomenon that is born out of that struggle.  Overwhelmed by the task of evaluating historical claims, lower courts instead are turning to other judges as authorities on history.  They are using what I call in this article, “historical precedents” – meaning language about history from an older decision that the second judge then treats as authority, not as part of the legal rule but as truth of the matter asserted. This practice presents a very interesting puzzle: once the Supreme Court blesses a historical source or a historical narrative, does that conclusion – in and of itself – bind other courts to the same answer about what happened in the past?

The question is more than just an academic head scratcher.  It creates significant practical concerns.  The Supreme Court is not designed to be a factfinding institution, nor are the Justices trained historians.  They can make mistakes, or our understanding of the history can change, and in any event some language that recites historical claims – particularly when appearing in separate opinions – is not contemplated with the kind of spotlight and scrutiny that comes when a legal rule is debated.  These realities make entrenching historical precedents throughout the judicial hierarchy a risky endeavor.

To be sure, lower court judges are in a tight spot when it comes to managing Second Amendment litigation, and this article seeks to help.  I assume a good-faith judge trying to comply with the Supreme Court’s instructions and tempted to clear issues off the docket by citing someone else’s answers to an historical question.  That short-cut is not always appropriate. Not all historical claims are the same, nor were they all similarly thought-through by the first decision-maker.  We must look under the hood, so to speak, before accepting the work and the conclusion as truth.  Ultimately my goal in this article is to draw attention to an unappreciated real-world consequence of the Supreme Court’s turn to history and tradition, and to begin the task of reckoning with it.

(Via Larry Solum at Legal Theory Blog, who says "Highly recommended. Download it while it's hot!")

Is Elon Musk Unconstitutional?Michael Ramsey

In the New York Times, Katherine Shaw says yes: There Is No Musk Exception in the Constitution.  But at The New Reform Club, Seth Barrett Tillman objects: 

Shaw indicated that the test for being an “officer of the United States” is that the purported officer exercises “significant power.” That is entirely wrong. As the Supreme Court explained in Buckley v. Valeo (1976), the test is that the purported officer exercises “significant authority” which binds the United States as a legal matter. There is a world of difference between Shaw’s position and the Supreme Court’s. Spouses (like Jill Biden, like Hillary Clinton) and White House confidants frequently exercise very real power through giving advice and recommendations to the President (or to cabinet members), but such advisors do not wield or purport to wield legal “authority.”

As to the other evidence Shaw puts forward—she speaks to where Musk was “presen[t],” who he “speak[s]” to, who and what he criticizes or “inveigh[s]” against. Not one thing on this list of Musk’s purported “significant powers” is remotely close to what the Supreme Court has determined to be unlawful when exercised by a nonofficer ...

That seems probably right under current law.  The Chief of Staff (not an advice-and-consent appointment) surely exercises "significant power" in Shaw's sense.  (I recently finished reading Max Boot's Reagan biography, which conveys how powerful -- for good and bad -- the Chief of Staff was in the Reagan administration.)  If the Chief of Staff is constitutional, "significant power" can't be the test.

But maybe the Chief of Staff isn't constitutional, from an originalist perspective.  I don't know of comparable positions that didn't require Senate consent in the early post ratification period, at least before Jackson.

Also, is it clear that Musk is not exercising legal authority?  Professor Tillman continues:

[Shaw's] best example is that Musk’s “team,” as opposed to Musk himself, purportedly canceled a contract on behalf of the U.S. government. But that might mean no more than Musk recommended that course of conduct and that the responsible secretary, under-secretary, or high level civil servant acted on Musk’s advice (which was only relied upon at the direction of the President). In those circumstances, Musk will have tendered a recommendation, not a final decision binding the government. That’s not enough—not nearly enough—to make him an “officer of the United States.”

That also seems right if true.  I assume the President could hire an outside consulting firm to review government operations and recommend cost saving measures, which the President or other officials could act on.  Maybe that's all that's going on, albeit with a rather unorthodox consulting firm.

But the administration should be careful with stories like this one (from Fox Business): What has DOGE cut so far?

In the weeks since its inception, DOGE has canceled a number of diversity, equity and inclusion (DEI) initiatives at federal agencies as well as certain consulting contracts, canceling leases for underused federal buildings, while also working to consolidate duplicative agencies and programs. (emphasis added.)

The account needs to be that "DOGE has recommended canceling" and "DOGE is making recommendations to consolidate", etc.  I understand why Musk doesn't want to describe it that way, but not describing it that way is asking for constitutional trouble.