The Folly of Firing
What Musk gets wrong about making government smaller and cheaper, and why it matters.
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Elon Musk has set an all-time American record for Reductions In Force (RIFs) and firings in the federal public service. The Department of Education, he said, was a “big con job.” He wants to “delete entire agencies.”
These actions are consequential in themselves. When gathered together, they raise fundamental questions about the limits of presidential power and the balance of power between the branches of American government.
To sort this all out, let’s begin with the basics. The president has very limited power to break through the protections that the civil service system affords federal government employees. Neither he nor his delegate (in this case, Musk) can simply announce that he’s firing feds or laying them off. Feds can only be fired for poor performance (which must be documented) or violations of the law (ditto).
It’s possible to lay off federal employees (that is, to do a “reduction in force”) under limited circumstances: lack of work, shortage of funds, reorganization, or changes in an employee’s duties. The Office of Personnel Management’s guidelines for RIFs, however, have vaporized off the OPM website.
The administration is claiming the power to do all this from a couple of sources: the cleverly crafted memo the OPM distributed on the evening of January 20, which attracted little attention; the executive order terminating DEI programs; an OPM memo with instructions about terminating employees working on DEI issues; and OPM’s guidance on the “fork in the road” program encouraging employees to resign through the “deferred resignation” option.
All of this stretches presidential power beyond anything we’ve ever seen, even during the Nixon administration’s Watergate affair. The president is claiming all these powers under Article II of the Constitution, which states in Section 1: “The executive Power shall be vested in a President of the United States of America.” Everything else cascades from there.
Which takes us to the sharp swords that Elon Musk and his DOGErs are wielding.
Where did Musk get this power?
It’s not clear that, as a “special government employee,” Musk has the power to actually do anything other than advise. He claims authority from President Trump, but it’s not clear that Trump himself is directing Musk’s DOGE. It is clear that these questions are about as fundamental as it’s possible to get.
It’s an old management maxim that “you can’t fire your way to success,” but Musk clearly believes otherwise. When he acquired Twitter in 2022 and rechristened it X, he fired nearly 80 percent of its staff. The company has come back even better than ever, he believes. He fired almost all Tesla employees working in the vehicle charging division. Earnings fell but he sees that as a short-term hiccup in his long-term plan.
So why not do the same thing to the federal government?
News stories talk of “layoffs,” “reductions in force,” “terminations”—and “firings.” But can he do that?
Can Musk dramatically cut the size of the federal workforce?
The simple answer is this: we don’t know. No administration has ever tried to reduce the federal workforce so quickly and at such a large scale.
And, to complicate the debate, it’s not clear what authority Musk has. The White House has said he’s a “special government employee,” a narrow category Congress created in 1962, primarily to bring in expertise that the government otherwise doesn’t have. No president has ever claimed the authority to dismiss thousands (or more) of federal employees or to wipe out whole federal agencies. That’s even more true for Musk. No official in the country’s history has exercised such power. That, in turn, is sure to be the focus of a court suit.
So: can he do that? He says yes. Law scholars say no. With public disapproval of the Supreme Court near its historic high, it’s not going to want to get into a fierce political battle. But the Court ultimately won’t be able to sidestep the question.
Are government employees protected against being fired?
Well, it depends on whether the employee is a political appointee or a member of the civil service. Political appointees can (mostly) be easily fired. Civil servants have pretty strong protections.
There are 4,000 political appointees in the federal government, who are selected to represent the president throughout the bureaucracy. They are the cabinet secretaries, deputy secretaries, confidential assistants, and others who conduct the administration’s work. For the most part, they can be fired at any time for any reason.
There are some exceptions. Some appointees, like members of the Federal Reserve Board, can’t be removed by the president once confirmed by the Senate, except for malfeasance or neglect of duty. In independent regulatory agencies like the Securities and Exchange Commission, the question is murkier, and the Supreme Court would have to sort this one out. The law creating inspectors general, the “meaner than a junkyard dog” officials charged with investigating waste, fraud, and abuse in their agencies, allows the president to remove them, but only after a 30-day wait and only after the president explains to Congress why. Trump fired 19 Inspectors General without either the wait or the explanation. That one is in the courts, too.
And then there are the 2.3 million feds who work in the civil service. The system, created in 1883 and supported by both parties since, protects them from being fired, except for violations of the law (which has to be explained) or for poor performance (which has to be justified).
Dismissed employees have the right to appeal being fired, either to the EEOC (for allegations of violations of their civil rights) or to the Merit Systems Protection Board (for all other charges). The former gets about twice as many cases as the latter. It can take the EEOC years to resolve a case. The MSPB typically decides a case in less than 4 months—and the government wins about 97 percent of the time.
This is one of the reasons why Trump chose to try to make the EEOC powerless rather than the MSPB, by putting a strong thumb on its leadership.
That’s all pretty down in the weeds. Can Musk demand RIFs and layoffs and firings, or not?
That’s a three-part question.
First: does Musk have that power? He claims he’s operating with the president’s authority, so the answer is probably yes.
Second: can Musk order a layoff—a “reduction in force”? Yes, if an agency is reorganized, or if it runs out of money. The running out of money part is easy. It can happen if Congress fails to appropriate the cash. The reorganization part is also easy: creating, restructuring, or eliminating agencies is the job of Congress. Congress hasn’t done that for any of the announcements that Musk has made. So, the answer is no—but Congress hasn’t put up much of a squawk.
Third, can Musk order firings? This is also an easy question, on paper. The answer is no, for the same reason. The creation and elimination of federal programs, the appropriation of money, and the authority for hiring employees to administer them rests with Congress. Here again, Congress hasn’t done any of this. But neither has it complained institutionally about what Musk is up to.
What about shutting down agencies? Can Musk do that?
Maybe. Congress creates agencies and has the power to shut them down. Trump and Musk are claiming the power to close down agencies that don’t fit the administration’s agenda.
He’s certainly promising an enormous downsizing in the number and scale of federal agencies. As he told the World Governments Summit in Dubai in a virtual appearance, “We do need to delete entire agencies, as opposed to leave part of them behind.” That, he said, is “kind of like leaving a weed.” And, “If you don’t remove the roots of the weed, then it’s easy for the weed to grow back. But if you remove the roots of the weed, it doesn’t stop weeds from ever going back, but it makes it harder. So we have to really delete entire agencies, many of them.”
Musk claims unprecedented authority to make such enormous decisions. That authority, he says, comes from the president. It’s not clear whether he is acting on the instruction of the president—or whether he keeps going until Trump objects. His official position, moreover, is murky. He’s serving as a “special government employee,” an appointment with a limited term but whose authority can be very broad, including the authority “to approve, disapprove, or otherwise direct Government action,” as 18 U.S. Code § 202 puts it.
The counterargument is the constitutional one: that only Congress can create a federal agency, and only Congress can eliminate one. In many cases, however, Trump and Musk have not actually eliminated an agency. For the Agency for International Development, for example, he fired (or “laid off” “put on paid leave”) most of its employees, moved it to the State Department, and appointed Secretary of State Marco Rubio as its administrator. A federal judge ordered the administration to resume humanitarian aid, a decision that left the administration’s plans on uncertain ground.
It’s also uncertain how the courts will tackle the basic question of whether the president or an aide has the power to close down an agency. It’s likely heading to the Supreme Court.
How easy is it to cut the number of federal employees?
There are limits to how much the administration can cut before running into a policy buzzsaw.
The facts are startling for anyone who hasn’t peeked under the covers. Take the five largest federal agencies by number of employees: the Veterans Health Administration (which runs VA hospitals); the IRS (which is hard to do without, since someone has to collect the taxes we owe); Customs and Border Protection (which is already short-staffed in protecting the borders); the TSA (charged with keeping air travelers safe without causing interminable lines at airports); and the Social Security Administration (which seniors and the disabled count on for their monthly checks).
Together, they account for 47 percent of all federal employees on the civilian side of the house. (Employment in civilian agencies is two-thirds of the total; defense agencies account for the other third.) Dig a little deeper into the next five largest agencies, and the total goes to almost 60 percent of employment of agencies in the civilian side of the government: the FAA, the FBI, Federal Bureau of Prisons, the Veterans Benefit Administration, and FEMA.
I don’t think there would be support from any quarter for cuts in the top five. The Trump administration doesn’t want to give the IRS more employees—although the evidence is that more auditors more than pay for themselves by collecting taxes owed to the government—but it also can’t afford the drop in revenue that would come from slashing IRS employment. The IRS, of course, has long been a favorite target of the right. In 2023, Republicans introduced a bill to abolish the agency altogether, and there’s been an ongoing campaign to eliminate 87,000 positions that Congress authorized, on the grounds that the IRS had been “weaponized.”
But evidence shows that the IRS has a return on investment of 415:1. One study estimates that the investment in new IRS employees would generate additional revenue of at least $480 billion in the next decade. Paying taxes is based on a system of “voluntary compliance,” and the fewer IRS employees who help taxpayers file their taxes and who investigate those who don’t, the less federal revenue there will be—including to fund the tax cuts and other high-priority administration programs.
They might want to give the FBI a haircut, until it’s time to track down potential terrorists or to investigate the shooters who tried to kill the president during the campaign. There’s a proposal to trim back FEMA and give more responsibility to the states, until there’s a hurricane in North Carolina and the complaint is that government help didn’t get there fast enough.
There’s no doubt that fat could be trimmed from each of these agencies. But talk to the butcher at your favorite market and none of them would propose trimming fat in a piece of meat with a sledgehammer. That would only make the meat uneatable.
We know from the last major try at downsizing the federal government, during the Clinton administration, that an open-to-all-comers downsizing has several predictable effects. The Government Accountability Office found in a 1996 analysis that the government lost important institutional memory as experienced employees left the government. Backlogs piled up. To get back some of the expertise they lost, many government agencies relied on private companies, which aren’t cheaper than government employees.
And there was a huge irony in some cases: the government so badly needed the skills of some employees who took buyouts that it hired them back as private contractors. So it paid twice: once to buy them out, a second time to hire them back. Things were often so frantic that government agencies didn’t even have time to look at whether they had saved any money in the end.
Moreover, among the very first targets of the Musk strategy of slashing federal government employees have been “probationary employees,” who typically had been with the government for less than a year and who could be eliminated with virtually no recourse. These employees number more than 200,000, and the administration appears to be trying to fire all of them. Almost all of them are young workers who had decided to make their careers in public service. Slashing through the probationary employees thus eliminates the talent pool of the federal government.
The profile of the federal workforce is already much older than in the private sector, where 20 percent of the workforce is under the age of 30, compared with 7 percent of the federal workforce. At the other end of the spectrum, 42 percent of the federal workforce is over the age of 50, compared with 33 percent of the private sector. Given the assault on the federal service, few talented young workers will take the chance of starting a federal job, so the administration will soon face an enormous talent gap.
So here’s what we can confidently predict. The administration will talk about how it’s slashing the government to “empower American families, workers, taxpayers, and our system of Government itself,” as the executive order said. Feeling that they face the choice of jumping or being pushed, many federal employees will leave government service. The ones most likely to leave are those just starting their careers, who are being told they’re not valued; those nearing retirement, who might see this as the nudge they need; and the most skilled employees, who will have the easiest time getting another job.
The administration will later discover it needs the talent that walked out the door. The programs it wants to cut won’t produce significant personnel savings, and the programs that could yield big personnel cuts are ones where it can’t afford them.
What’s at the bottom of all this?
There’s an unusual confluence of Musk’s instincts for radical change and the broader conservative effort to ratify the unitary executive.
Since the Reagan administration, conservatives have claimed that the president has the power, rooted in the Constitution and in precedents reaching back to the first decades of the country, to use power as he sees fit to “take Care that the Laws be faithfully executed.” This “unitary executive” theory, as it has become known, provides the president with sole authority over the executive branch of government.
So the headlines are about much, much more than the power to fire federal employees, cut off spending, and close down government organizations. In his Second Treatise on Government, the philosopher John Locke contended, “Wherever law ends, tyranny begins.” The big debates here all test the basic question of where law does indeed end in the American constitutional system—and how close the nation teeters toward tyranny. These are the front lines where that question will be decided.
Donald F. Kettl is Professor Emeritus and Former Dean of the University of Maryland School of Public Policy. He is the author, with William D. Eggers, of Bridgebuilders: How Government Can Transcend Boundaries to Solve Big Problems.
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‘We know from the last major try at downsizing the federal government…To get back some of the expertise they lost, many government agencies relied on private companies, which aren’t cheaper than government employees’.
But this is exactly what they want to do—to move as much as they can to the private sector because the public, to whom they play, assumes that government is always inefficient, wasteful, and incompetent and business can always do any task cheaper and better. They didn’t even check empirical data: this is an unshakable a priori belief and nothing will disconfirm because the assumption will be that if it hurts now it will make things much better in the long run.
The Administration did this at my place. We had student tutorial centers run by faculty and staffed by students we hired and managed. Worked great. Then they contracted with a tutorial firm to provide ‘free’ tutoring to students at a cost that they refused to reveal to faculty and it isn’t working fine. There’s no way a business taking a cut for profit could be cheaper than funding departments to hire work-study students selected and managed by faculty who know what they’re doing, in house, at cost. Don’t let me continue with the travel agency through which we now have to book all travel…
It's an article of faith that outsourcing is efficient and profit-making enterprises do everything cheaper and better. How do you address that? And how did it get into the heads of the American public that it’s business that’s on their side, defending their interests from the predation of the Deep State?
People like Musk are not in favor of "small government" in some principle way but just want to reduce the government where they selectively and opportunism do not like it