New Mexico AG Leads Lawsuit Claiming Violations of Article II, Section 2, Clause 2 of the Constitution

The New Mexico Attorney General tackles the question via a lawsuit of "inferior officer" or a "principle officer."

The United States Constitution gives the power to the president to appoint department heads but only with the advise and consent of the Senate. The question a president must consider when appointing an individual around advise and consent is rather the appointment is to a position of power that is "inferior officer" or a "principle officer."

While the Constitution specifies that certain persons, such as Supreme Court Justices, qualify as Officers of the United States, the Appointments Clause does not specify all persons who fall under its purview. Thus, the Appointments Clause’s reach and scope has been disputed. In the 1976 case of Buckley v. Valeo, the Supreme Court explained that whether an individual wields significant authority informs the assessment of whether that person is an officer.

In a Supreme Court ruling in Edmond v. United States (1997) the courts clarified that an inferior officer is a federal official appointed by the President without Senate confirmation, or appointed by the heads of departments or judiciary. "The work of an inferior officer is directed by a higher-ranking officer who was appointed by the President." This position has been reinforced by the existing Supreme Court in recent rulings.

The Constitution clearly states that: 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.

This understanding leads to the actions announced this week by the New Mexico Attorney General. 

Attorney General Raúl Torrez, along with Arizona Attorney General Kris Mayes and Michigan Attorney General Dana Nessel and 11 other states, announced via a release on YouTube the filing of a lawsuit challenging the unlawful delegation of executive power to Elon Musk. The lawsuit argues that President Trump has violated the Appointments Clause of the United States Constitution by creating a new federal Department without Congressional approval and by granting Musk sweeping powers over the entire federal government without seeking the advice and consent of the Senate.

“Empowering an unelected billionaire to access Americans’ private data, slash funding for federal student aid, stop payments to American farmers and dismantle protections for working families is not a sign of President Trump’s strength, but his weakness,” said New Mexico Attorney General Raúl Torrez. “Despite his claim to be operating under a mandate from the American people, the President seems afraid to get Congressional approval for his ‘move fast and break things’ approach to the Presidency.”

“The founders of this country would be outraged that, 250 years after our nation overthrew a king, the people of this country—many of whom have fought and died to protect our freedoms—are now subject to the whims of a single unelected billionaire,” said Arizona Attorney General Kris Mayes. “Allowing one individual to flout the law without consequence threatens our entire constitutional system. We cannot allow our democratic processes to be hijacked by immense wealth and privilege.”

“This extraordinary assault on our federal government by the unelected, unappointed billionaire Elon Musk usurps the right of the Senate to advise and consent and is plainly unconstitutional. This illegal exercise of authority by Musk is deeply harmful to the residents of Michigan,” said Michigan Attorney General Dana Nessel. “That is why today we are asking the Court to invalidate his directives and actions and to issue a restraining order barring Musk and the so-called Department of Government Efficiency from exercising governmental authority reserved for officers of the United States over any other agency in the executive branch of the federal government.”

The lawsuit highlights how, with the President’s approval, Musk has unraveled federal agencies, accessed sensitive data, and caused widespread disruption for state and local governments, federal employees, and the American people. The complaint further asserts that Musk’s actions violate the Appointments Clause of the U.S. Constitution, which ensures that executive appointments are subject to congressional oversight and Senate confirmation.

“Musk’s seemingly limitless and unchecked power to strip the government of its workforce and eliminate entire departments with the stroke of a pen, or click of a mouse, is unprecedented,” the lawsuit states. “The sweeping authority now vested in a single unelected and unconfirmed individual is antithetical to the nation’s entire constitutional structure.”

Defendants’ actions threaten the financial and operational stability of the States by disrupting billions of dollars in federal funding essential for law enforcement, healthcare, education, and other critical services. State agencies depend on federal funds and cooperative agreements, and the termination of these partnerships will result in severe budget shortfalls, staffing crises, and the potential loss of key programs. Similarly, the proposed elimination of the U.S. Department of Education would strip away federal civil rights oversight in schools, leaving states with uncertain legal authority to address discrimination cases involving students with disabilities and enforce Individualized Education Programs (IEPs) and disability protections.

Beyond financial and regulatory harms, the reckless expansion of Department of Government Efficiency’s (DOGE) authority endangers cybersecurity and erodes public trust. DOGE operatives have reportedly accessed federal financial databases containing sensitive state tax records and banking information without proper oversight, increasing the risk of cyberattacks, data breaches, and foreign exploitation.

The manipulation of federal IT infrastructure by unauthorized individuals threatens not only state financial security but also the integrity of critical national systems. As reports of unauthorized access to Treasury databases emerge, citizens have expressed growing fear that their private financial data is at risk, leading to a chilling effect on participation in state-administered federal programs. The Plaintiff States are now forced to contend with both immediately.

“There is no greater threat to democracy than the accumulation of state power in the hands of a single, unelected individual,” said AG Raúl Torrez. “Although our constitutional system was designed to prevent the abuses of an 18th-century monarch, the instruments of unchecked power are no less dangerous in the hands of a 21st-century tech baron.”

The New Mexico Department of Justice seeks a court ruling declaring Musk’s actions unconstitutional and an injunction barring him from issuing orders to any person in the Executive Branch outside of DOGE, as well as invalidating his previous actions.

The Attorneys General joining New Mexico in this lawsuit represent the states of Arizona, Michigan, California, Connecticut, Maryland, Massachusetts, Minnesota, Nevada, Vermont, Rhode Island, Hawaii, Washington and Oregon.

The complaint and fact sheet are below:

NM v. Elon Musk

Lawsuit Fact Sheet

More News from Alamogordo

• U.S. Attorney Alexander Uballez New Mexico District Resigns Per Presidential Request U.S. Attorney Alexander Uballez to Step Down, Concluding Impactful Tenure in New Mexico
• U.S. Attorney's Office Secures Guilty Plea in Firearms and Drug Trafficking Scheme U.S. Attorney's Office Secures Guilty Plea in Firearms and Drug Trafficking Scheme