Musk and Ramaswamy’s DOGE Project to Eviscerate the Federal Government is a Legal Train Wreck
The November 20 Wall Street Journal published an essay—let’s call it the DOGE Manifesto—by Elon Musk and Vivek Ramaswamy, laying out their ambitions for cutting “the federal government down to size” with a “lean team of anti-government crusaders.” However, their 1,000 or so words of braggadocio are filled with misconceptions about law, government, and their power. Cataloging a dozen of them sheds light on the authors’ self-delusion (or how they estimate their readers’ ignorance) and where their “historic opportunity” may be most readily challenged.
To begin with, the most obvious misdirection is that DOGE, whatever it is, is not a “department” in the constitutional sense. The Constitution uses the word “department” to mean either a branch of government, such as the “judicial department,” or a “freestanding component of the executive branch, not subordinate to or contained within any other such component,” to which the law assigns duties, such as the Department of the Treasury or the Environmental Protection Agency. DOGE’s fabulists presumably chose the name to fit the Musk-preferred acronym but also to confuse the public as to their position and authority. As far as the government is concerned, DOGE has neither. Journalists should stop calling it “the department.” Call it a “project” or an “initiative.” Don’t treat it as weightier than it is.
The DOGE Manifesto’s implicit image of hordes of bureaucrats running rampant over American liberty is largely nonsense. The civil service is not a monolith comprising “millions of unelected, unappointed” mandarins who make “most government decisions.” Although the federal civil service comprises roughly two million civilians—about the same as when John F. Kennedy was president—relatively few are policymakers. According to the nonprofit Partnership for Public Service: “Defense and national security-related agencies account for nearly 71% of the entire civilian federal workforce outside of the US Postal Service.” Across all government agencies combined, over a third of our civil servants play medical, hospital-related, dental, and public health roles or are involved in general administrative, clerical, and office service work. By comparison, the “unelected” civil servants who make final agency regulatory decisions are those the elected President appoints with the advice and consent of the elected Senate. Americans burdened by their choices may challenge them in court, where judges police the appointed civil servants to ensure their decisions align with the statutes enacted by the elected Congress. Moreover, when imposing significant rules on the public, agencies must take account of direct input from the public through a democratic “notice and comment” process. It turns out that Americans actually like this system; both social science experiments and survey evidence confirm that the public prefers policy decisions to be made by relatively independent but legally accountable technocrats and does not favor more direct presidential control of agency decision-making.
Trump’s victory was no “mandate for sweeping change.” The New York Times, among others, has reported, “Trump won the popular vote by one of the smallest margins since the 19th century” and fell short of the 50 percent mark. But just as important, the DOGE Manifesto echoes the anti-government vision of Project 2025, an agenda that registered so negatively with the public that Trump and his surrogates disavowed it. Predictions that the disavowal was a lie proved correct. But critically, a victorious campaign based on the eschewal of an extreme right-wing agenda is in no position to claim a mandate to implement that very agenda.
Contrary to the DOGE Manifesto, it is doubtful that Musk and Ramaswamy can operate indefinitely in secrecy as freelance advisors. The duo called themselves “outside volunteers, not federal officials or employees” and asserted that Trump personally named them to head the DOGE. They anticipate advising the initiative “at every step” and working with a team of government officials embedded within government agencies. These arrangements will make DOGE, once Trump is inaugurated, a “federal advisory committee” under the 1972 Federal Advisory Committee Act (FACA). FACA covers “any . . . task force, or other similar group, or any subcommittee or other subgroup thereof (hereafter in this paragraph referred to as ”committee”), which is . . .established or utilized by the President. . . . in the interest of obtaining advice or recommendations for the President or one or more agencies or officers of the Federal Government.” Each such committee must develop a public charter, conduct meetings in public, and keep minutes of its meetings. Under D.C. Circuit precedents from the Bill Clinton and George W. Bush administrations, Musk and Ramaswamy can avoid such obligations only by becoming government employees, which would be ironic, or having no vote or veto power regarding DOGE. Neither scenario seems likely—at least if Musk and Ramaswamy want to keep control over DOGE.
There is no cache of federal money to be quickly recouped on the ground that agencies are spending funds without legal authority. The Manifesto’s promise to “help end federal overspending by taking aim at . . . annual federal expenditures that are unauthorized by Congress” is a chimera. It exploits the public’s understandable ignorance of technical details about Congress’s appropriations process. The Manifesto presumably refers to appropriations that Congress passes—statutes that permit agencies to take money out of the Treasury and spend it—without following internal rules that ideally call for two rounds of legislation as part of the budget process. Specifically, if Congress’s process for funding the government always worked as provided in Congress’s internal rules, Congress would first enact for every agency a statute authorizing Congress itself to later enact appropriations for that agency. That is what Congress means by an “authorization.” Such authorizations are deliberated within the standing committees that oversee each agency’s activities, such as the Judiciary Committee for the Justice Department, the Foreign Relations Committee for the State Department, and so on. Then, before the end of the fiscal year, Congress would pass appropriations within the limits previously authorized, thus giving agencies so-called budget authority to spend funds for whatever purposes Congress designates. As far as any agency’s power to spend money is concerned, it is the appropriations acts—which emerge from the Appropriations Committees—that give agencies all the spending permission they need, whether or not there was a prior “authorization.”
An analogy helps. Imagine parents who give their teenagers an allowance every Saturday with directions on how to spend it. Call this gesture the “appropriation”; it takes funds out of the family treasury. But, in a spirit of fiscal discipline, family rules also call for the parents, grandparents, aunts, and uncles to meet each prior Tuesday and issue a statement formally granting the parents permission to give the allowances that week and perhaps setting forth detailed directions for the teenagers’ behavior. This is what Congress calls “authorization.” If, however, the parents give the teens money on a Saturday and say, “Here’s money you can spend on food, entertainment, and clothing,” that’s all the permission the teens need. If the family failed to get together on a spending plan the prior Tuesday to guide the teens further, that may reflect poorly on the family’s time management, but it does not make the kids’ spending any less “authorized.”
Contrary to Musk and Ramaswamy, recent Supreme Court opinions on statutory interpretation do not open any easy channel through which to drive agency deregulation. It is a central fact of agency life that the statutes that empower agencies are often ambiguous in describing the precise scope of what agencies can do. Agencies dealing with such laws will try to give those statutes what the agencies think is their best interpretation. Following the Supreme Court’s 1984 Chevron decision, lower courts were told to follow those agency interpretations if the statute in question was genuinely ambiguous as a legal matter and, if so, if the agency reading was reasonable. Last year’s Loper Bright decision changed the rules. The Supreme Court instructed lower courts to develop their own best reading of any legally ambiguous statute and, when the agency interpretation differs, to impose the court’s reading on the agency. But the Court also said this:
We do not call into question prior cases that relied on the Chevron framework. The holdings of those cases that specific agency actions are lawful—including the Clean Air Act holding of Chevron itself—are still subject to statutory stare decisis despite our change in interpretive methodology. Mere reliance on Chevron cannot constitute a “‘special justification’” for overruling such a holding, because to say a precedent relied on Chevron is, at best, “just an argument that the precedent was wrongly decided.”
In other words, the Court in Loper Bright preserved the legal validity of agency victories in earlier cases that had upheld an agency’s statutory authority. Prior reliance on Chevron does not automatically render vulnerable any previously litigated rule.
The promise of a large swath of regulations that can be expeditiously jettisoned via AI’s genius is high-tech hubris. The Major Questions Doctrine, which the Manifesto cites as a basis for sniffing out agency overreach, is insufficient to enable artificial intelligence to spot legally insupportable agency overreach. It is true that, under the MQD, an agency’s “unheralded” and “transformative expansion” of its regulatory ambitions requires exceptionally “clear congressional authorization.” But an AI-led comparison of each agency’s past regulatory output to its enabling statutes is probably a waste of time. Broad statutory language often represents Congress’s intentional and permissible assignment of discretionary authority to the agency. As the Loper Bright decision recognized, confirming a broad delegation of authority to an agency is sometimes “the best reading of a statute.” And, the Court added, “when a particular statute delegates authority to an agency consistent with constitutional limits, courts must respect the delegation.” As a result, whether any statute’s language is specific enough to validate an agency’s subsequent rulemaking activity can be determined only on a “statute-by-statute basis.” Such determinations require “retail” legal analysis, not the “wholesale” deployment of a language-matching algorithm. It should also be noted that, even if agencies pause in enforcing some rules while their legality is studied, businesses are likely to follow them lest they be caught up short later.
Deregulation will not be the streamlined process predicted by the Manifesto. With or without AI, rescinding rules is time-consuming and labor-intensive. Unlike unilateral presidential orders and non-binding agency guidance, significant regulations that directly bind the public typically go through a painstaking process of published notice, public comment, and agency analysis before they become final. The same process is required for amending or repealing a rule under the federal Administrative Procedure Act. A rescission is a “rule,” subject to significant procedural requirements and potentially demanding judicial review. Indeed, the classic case establishing so-called hard-look judicial review—Motor Vehicle Manufacturers Association v. State Farm Mutual Automobile Insurance Co.—involved deregulation, namely, the Reagan Administration’s attempt to withdraw the Carter Administration requirement for passive restraints in new cars. The Supreme Court unanimously held the rescission invalid because the proffered justification for repeal was inadequately explained. Mandatory airbags ensued. Finally, it should be noted that the Major Questions Doctrine, which Musk and Ramaswamy hail as potential leverage to undo past regulations, will now be a hurdle the new Trump Administration will have to jump if it purports to interpret statutes in “unheralded” and “transformative” ways.
Eliminating regulations will not necessarily reduce the need for civil servants to transact the government’s business. Despite the duo’s use of business jargon (“sound industrial logic”) to make it appear that they know what they are talking about regarding staffing agencies, it is obvious they do not. Most agencies are already considerably overstretched in terms of the resources available to perform their assigned missions, and cutting rules (if it even happens) will not necessarily imply any agency will have surplus staffing. For example, reducing antipollution regulations will not reduce the number of sources of pollution in need of monitoring or the volume of potential pollutants requiring evaluation. Reducing workplace safety regulations will not reduce the number of workplaces needing inspection. Although Musk and Ramaswamy do not discuss it, the Trump agenda is also likely to increase the number of rules to be enforced in certain areas, such as immigration. If Trump persists in his ambition to reduce the size of the permanent federal workforce, what Americans are likely to see is the increasing use of private contractors, which may be no less costly and is hardly guaranteed to be more competent at either enforcing the law or delivering services to the public.
The President has no inherent impoundment authority. Musk and Ramaswamy say Trump may be able to save billions of dollars by challenging Congress’s authority to insist that appropriated funds be spent. Congress’s power of the purse is at the heart of its role in our separation of powers system. That power entails both the authority to set spending caps and the power to determine spending “floors.” As University of California-San Francisco law professor Zachary Price has recently written, the historic examples typically cited as evidence that presidents have exercised impoundment authority are almost all examples in which Congress, by statute, authorized presidents to spend less than the amounts appropriated. There is no longstanding practice of presidents defying Congress by refusing to spend what Congress has told the executive branch to pay.
Trump has no greater executive order power than any other president. Musk and Ramaswamy suggest Trump will have more executive power to roll back regulations than earlier presidents had to command regulations. In truth, few regulations emanate from presidential command, especially in peacetime, and do so only if Congress has vested regulatory authority directly in the president. Executive orders that purport to set an agency’s agenda typically ask them to develop regulatory proposals that may ultimately be issued under the legal authority of the agency head, not the president. Trump’s authority to tell agencies to “analyze,” “consider,” and “propose” will be no different from the supervisory powers the Constitution vested in earlier presidents.
Musk and Ramaswamy swear their “North Star for reform will be the U.S. Constitution.” But DOGE would undermine one of the primary reasons we have it: to establish a national government with the authority and the capacity to address the nation’s challenges. That government has been one of the key elements to American prosperity. Eight years ago, political scientists Jacob Hacker and Paul Pierson diagnosed public indifference to the productive role of government as “American Amnesia.” In truth, whatever its flaws, America’s administrative state continues to deliver essential collective goods, regulate for the protection of consumers and investors, soften the business cycle, and reduce adverse spillover effects, such as pollution, that sellers and buyers in the market do not fully bear.
In short, the DOGE recipe for a Trump-led kneecapping of the administrative state threatens much and offers little. Don’t be fooled by bravado.
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