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How was Obama's head of USDS nominated and did that or did that not violate the Appointments Clause according to this line of argument?
They did not require senate confirmation and did not violate the Appointments clause. Part of the distinction about whether an officer is "inferior" or "principal" (and thus whether they require senate confirmation) turns on the authority they wield. If you want to create a purely advisory committee to figure out software best practices and help other government agencies bring their stuff up to date, no problem. If you want to create an entity that has the power to hire and fire people of different departments, order around other senate confirmed officials, cancel contracts, etc then you need senate confirmation.
EOP staffers are, in general, not "Officers of the United States" - nothing they do legally matters except in so far as it results in a signed order crossing the Resolute Desk - legally, even the White House Chief of Staff is just an Assistant to the President. (The use of the Presidential autopen complicates this a bit, but that is the principle). The EOP staff who can do things on their own authority (like the head of the OMB, who has an official role in the process of signing off CFR regulations) are Senate-confirmed.
The "inferior officers" clause in the Constitution requires Congressional action - by default all Officers of the United States are Senate-confirmable, but Congress can by law exempt inferior officers. So if someone is acting as an Officer, they either need to be Senate-confirmed, or appointed to a specific "inferior office" created by Congress.
So the question is whether either the de facto head of @DOGE (i.e. Elon Musk) or the administrator of the United States DOGE service (i.e. Amy Gleason) is acting as an Officer of the United States, rather than an assistant. Telling a Senate-confirmed agency head, "You should fire these people/cancel these contracts or I will tattle on you to POTUS." is not acting as an Officer. Breaking leases and cancelling contracts on his own authority probably would be. Signing cheques for the Treasury (or modern equivalent) is definitely acting as an Officer. If, as has been alleged in numerous places, DOGE is overriding the decisions of departments with Senate-confirmed heads about how Congressionally-appropriated funds are spent, then that is an Office and the person who does it is an Officer, and the Appointments Clause is being violated because neither Musk nor Gleason nor anyone else in DOGE has been confirmed as an Officer by the Senate, or appointed to an inferior office established by Congress.
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My understanding of the setup from the EO was that DOGE just makes recommendations to the President and that it is he who hires and fires.
Has any DOGE employee actually done anything that doesn't amount to "give us this information so we can tell POTUS who to sack"?
This is pretty "Your honor, I did not 'conspire to commit fraud'. I simply had an innocent hypothetical conversation with my good friend, who happened to commit fraud a few weeks later. That the friend's actions were related to my hypothetical is a coincidence and has no bearing on my guilt.". If the Appointments clause was intended to prevent things like this, cute tricks shouldn't and won't prevent judges from finding that no, de facto, he's the administrator.
(Also, this is another example of my point about how Trump isn't even trying to pretend to follow the law, and pretending to follow the law is an indispensable tool for minimizing legal exposure if you're trying to break the law. Whatever his goals are, it isn't smart to not have figured out who the DOGE administrator is until this point, or to have made it a little less blatant that Elon's directly calling shots without a superior)
You aren't exactly convincing me of the nonexistence of that zeroth article when you compare trying to get rid of bureaucrats to conspiring to commit fraud.
But leaving that aside, I find it immensely frustrating that people argue cute tricks wont work in a nation where growing wheat for one's own consumption is illegal because of "interstate commerce".
My man, your entire Republic is built on cute tricks. The Constitution itself was a cute trick. Not to mention the whole concept of EOs as quasi-laws like they are today.
Cute tricks without hard power maybe are fraud. Cute tricks backed by hard power are institutional innovations. The only relevant question here is whether SCOTUS will wear the excuse or not. And they've worn some pretty fucking silly excuses in their time.
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According to some reporting DOGE employees are in control of all payments at USAID and denying disbursement of payments authorized by Secretary of State Marco Rubio. I am skeptical DOGE is going to be able to present any kind of communication from Trump authorizing any particular firing rather than purporting to give them discretion.
Congress can delegate their power to subordinate positions. Why can't the President?
Answer in two parts.
First, there are some powers which Congress is probably not able to delegate to subordinate positions. I think if Congress tried to establish an agency to determine the budget for the federal government for the upcoming year without a vote in Congress that would be struck down. Similarly certain powers (like the power to pardon) are specific to the office of the President and he probably can't delegate those. If he wants to empower an agency to advise him on the use of the power that's probably fine but there are likely certain powers he can't just give to other entities.
Second current law suggests that many actions taken by DOGE would be unlawful even if those actions ultimately issued from the President himself. Decisions about firing certain employees or impounding funds are governed by Congressional statutes, not just the president's whims. So even if the President could delegate certain powers it's not clear he has the powers to do the things he would be delegating.
ETA:
I guess there's a third thing which is that Supreme Court interpretation of the appointments clause also limits the power the President can delegate without the safeguard of Senate confirmation, which is probably the one most relevant here.
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