Gunfight in DOGE City
In moving fast, the incoming administration is likely to tie itself up in years of litigation.
This article is part of an ongoing project by American Purpose and Francis Fukuyama on “The ‘Deep State’ and Its Discontents.” The series aims to analyze the modern administrative state and critique the political right’s radical attempts to dismantle it. Click here to subscribe to Francis Fukuyama’s blog and American Purpose at Persuasion to receive future installments into your inbox!
The newly elected Trump administration is moving fast on what is likely to be their premiere initiative, an assault on the federal bureaucracy that will allow them to staff the government with loyalists. This takes the form of the so-called “Department of Government Efficiency,” or DOGE, headed by Elon Musk and Vivek Ramaswamy. The Republicans have correctly perceived that the failure of the first Trump administration to achieve key goals was due to the lack of the right personnel, and they have used the four year interregnum to come up with plans to fix this problem. Indeed, getting staffing right is the precondition for Trump to achieve any of his goals, from economic policy to migration to culture change.
Musk and Ramaswamy have laid out a game plan of sorts in an op-ed published in the Wall Street Journal. Theirs is not the first ambitious effort to reform the government; most, like the Grace Commission in the 1980s, have failed in the face of enormous legal challenges. Whether DOGE can succeed today is an open question; it too needs to overcome a series of challenges.
First off, DOGE is not a department; departments can only be created by Congress. Nor is it an advisory committee; such bodies are governed by the Federal Advisory Committee Act (FACA), which imposes strict rules regarding transparency and open meetings. In recognition of this, Musk and Ramaswamy have suggested that they will simply make recommendations that can be used by allies like Russ Vought, the designated head of the Office of Management and Budget, for how to shrink government.
Nor do they have the authority to fire federal workers or close agencies as part of their announced intention to cut $2 trillion from the Federal Budget. To get around this, they have resorted to other tactics. While individual workers have legal job protections, agencies can engage in Reductions in Force (RIFs) that affect groups of workers, and DOGE has promised to pursue that route. They have suggested that all workers need to be in the office five days a week, and that some agencies can be moved out of Washington. More ominously, Musk has started to single out individual government officials and to rally online mobs against them. His intention is to create an atmosphere of fear, wherein many current workers will voluntarily leave government service.
The irony, of course, is that the best qualified are the likeliest to leave. All of this is done in anticipation of a revived executive order that will be issued shortly after January 20 of next year, creating a Schedule F category of at-will workers, into which a vast number of federal employees will be moved. Such an order will doubtless be contested in the courts, but as Don Kettl notes in an earlier American Purpose piece, the courts are unlikely to find such a move unconstitutional.
The DOGE plan relies on two recent Supreme Court decisions, West Virginia v. EPA in 2022 and Loper Bright v. Raimondo this past June. In the former, the Roberts Court invalidated an effort by the EPA to apply authority granted by the Clean Air Act to carbon emissions, because that authority was not explicitly granted in the original statute. They did so using a “Major Questions” doctrine, which assumes big questions of statutory authority must be explicitly decided by Congress. The Loper Bright decision invalidated the 1984 “Chevron Deference rule,” which had deferred to executive agencies’ expertise to interpret laws passed by Congress. The Musk-Ramaswamy article suggests that these decisions will allow the new administration to rescind thousands of regulations, and thereby allow the president to reduce the size of agencies.
No one would question the fact that there are a large number of regulations that need to be eliminated if the government is to work more efficiently. But how does one distinguish those regulations in which an agency exceeded its statutory responsibility? Implementing the people’s will through statutory mandates requires agencies to exercise considerable discretion. The Clean Air Act, for example, does not specify how many parts per million constitutes a dangerous level of pollutants for the dozens of emissions it authorizes the EPA to regulate. Does this lack of specificity then invalidate the EPA’s authority to regulate all pollutants across the board? Or, as Justice Kagan noted in her dissent to Loper Bright, the Public Health Services Act mandates that the Food and Drug Administration can regulate “biological products” including “proteins.” She then posed the question: when does an alpha amino acid polymer qualify as a protein? The statute is silent on this issue; if the FDA designates a particular molecule for regulation, is it exceeding its statutory authority? When is an agency using discretionary authority to interpret an ambiguous statute, as opposed to extending the statute beyond the intention of Congress?
The ultimate problem lies in the fact that Congressional mandates are inevitably vague, general, and sometimes self-contradictory. They are often the result of political compromises done by a branch of government that does not have the expert staff to produce more detailed legislation. And even if it did, would we be better off with detailed lists of rules written into hard law by Congressional staff? The concern that drove the Chevron Deference rule in the first place was that only executive branch agencies had sufficient expertise to make these interpretations, expertise that was lacking either in Congress or in the courts.
Musk and Ramaswamy (or whoever drafted the op-ed for them) seem to think that the new administration can simply invalidate hundreds of regulations by executive order, based on these and other Supreme Court decisions. However, each regulation challenged in this manner is likely to be contested in the courts, oftentimes by the commercial entities that have learned to abide by them. It took years for the West Virginia decision to be handed down; while the Roberts Court may be sympathetic to regulatory rollback, it is not clear that it has simply handed blanket authority from the agencies to the White House. When the first Trump administration sought to roll back Title IX authority from the Department of Education’s Office of Civil Rights, it properly put its initiative through the notice-and-comment procedure legally mandated by the Administrative Procedure Act. A second Trump administration is unlikely to be this patient and rule-following. Rescinded rules will therefore be tied up in litigation for years, greatly increasing the level of uncertainty that business interests will face. And if the administration tries to accomplish its ends through extensive use of executive orders, it is setting itself up for failure, whether or not the Democrats return to power in 2028. So much for small-government conservatism.
Francis Fukuyama is Senior Fellow at the Freeman Spogli Institute for International Studies at Stanford University. He writes the “Frankly Fukuyama” column, carried forward from American Purpose, at Persuasion.
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This all coincides with Trump’s essential overly simplistic understanding of problems and issues outside of his direct experience or interest combined with his contradictory self-assertion that he’s the smartest man in the room and understands everything better than anyone else. .
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