The More You Learn About Elon Musk’s DOGE, the Less Sense It Makes

The masterminds behind the proposed government efficiency agency have provided more detail about how it would function. Their explanations only makes their enterprise seem less plausible.

Nov 30, 2024

Earlier this week, I wrote about the Department of Government Efficiency, or DOGE, and its vague but audacious plans for reforming the executive branch after President-elect Donald Trump’s victory. Elon Musk and Vivek Ramaswamy, the two men leading the project, have largely spoken about it only in hazy terms—at least until now. The clarity that they have offered is unlikely to satisfy its critics or doubters, to say the least.

In a Wall Street Journal op-ed on Wednesday, Musk and Ramaswamy elaborated in more detail about their plans to “reverse a decadeslong executive power grab” and reshape the federal government. They claimed to have a mandate not only from the American people but also from the Supreme Court in their quest to dismantle federal regulatory agencies. And they advanced legally questionable arguments for how they could accomplish it.

The op-ed opens with a certain lack of self-awareness. “Our nation was founded on the basic idea that the people we elect run the government,” the two men wrote. They depicted an America where most policy decisions aren’t made by “the democratically elected president and his political appointees” but by “millions of unelected, unappointed civil servants within government agencies who view themselves as immune from firing thanks to civil-service protections.”

Taking on these nefarious civil servants are two unelected, unappointed men who aspire to wield unaccountable influence—DOGE, despite its name, is not a government agency—who also cannot be fired. “We are entrepreneurs, not politicians,” they wrote. “We will serve as outside volunteers, not federal officials or employees. Unlike government commissions or advisory committees, we won’t just write reports or cut ribbons. We’ll cut costs.” The irony was apparently lost on them.

To accomplish this, they suggest that they would “identify and hire” a “lean team of small-government crusaders” to be housed within the White House Office of Management and Budget, who would presumably be doing much of the real work. As “outside volunteers,” Musk and Ramaswamy can’t actually cut anything or fire anyone. They would simply make recommendations for others—Trump, Congress, federal agency heads, anyone with actual power—to do it. At the same time, the two men act as if they will take a much more direct, personal role in all of this. Unlike those pesky civil servants, they would do so while carrying a wide range of obvious conflicts of interest and opportunities for corrupt self-enrichment.

Broadly speaking, Musk and Ramaswamy have three stated goals. The first one is to massively reduce the number of federal regulations. They argued that two recent Supreme Court rulings—West Virginia v. Environmental Protection Agency in 2022 and Loper Bright Enterprises v. Raimondo earlier this year—compel them toward action. “Together, these cases suggest that a plethora of current federal regulations exceed the authority Congress has granted under the law,” they wrote.

The Supreme Court suggested no such thing. In the West Virginia case, the Supreme Court struck down a defunct Obama-era plan for regulating power-plant emissions and limited the Environmental Protection Agency’s power to enact future regulations of those emissions. The conservative majority invoked the “major-questions doctrine” to argue that Congress hadn’t spoken clearly enough to grant the agency the power to issue such a consequential ruling. Contrary to what Musk and Ramaswamy suggest, the court said that this doctrine was reserved for “certain extraordinary cases,” suggesting that most federal regulations would not fall under its scope.

Loper Bright is much more consequential: The justices used that case to overturn the Chevron doctrine, which had required courts to defer to federal agencies when interpreting the scope of those agencies’ regulatory portfolio. That will have major consequences for when courts review new regulations in the future. At the same time, the conservative majority asserted that old court decisions will generally remain intact. “We do not call into question prior cases that relied on the Chevron framework,” the court explained. “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.”

How would these regulations be eliminated? Musk and Ramaswamy said that DOGE will work with “legal experts embedded in government agencies” who are aided by “advanced technology” to create lists of regulations that they think are invalid. (They did not elaborate upon the “advanced technology” they plan to use.) From there, Trump would use the list to “immediately pause enforcement” of the targeted regulations and “initiate the process for review and rescission” of them. “This would liberate individuals and businesses from illicit regulations never passed by Congress and stimulate the U.S. economy,” Musk and Ramaswamy claimed.

Presidents cannot simply make federal regulations disappear via executive order. The Administrative Procedures Act, or APA, and other federal laws typically set out the bureaucratic process for crafting regulations. Rescinding a regulation generally requires the agency to go through the same process as creating one. Failure to follow this process can lead a federal court to invalidate those efforts. Trump and his allies are well aware of this: Their sloppy approach to the regulatory process led to dozens of defeats in court during his first term.

One aspect of this scheme that sticks out is the claim that Musk and Ramaswamy would use “advanced technology” to decide which regulations to cut. If that is a reference to artificial intelligence programs, then it could be a serious mistake. Not only are AI programs generally untrustworthy and unreliable, but they are ill-suited to complex legal work. Judges have had to castigate lawyers for filing AI-written briefs that included fake citations to nonexistent court cases. Using AI to throw out existing regulations would practically invite legal challenges under the APA’s “arbitrary and capricious” standard.

Then again, they might need AI because of the shortage of human workers that the pair plans to engineer. Their second goal is to substantially reduce the number of federal employees. “DOGE intends to work with embedded appointees in agencies to identify the minimum number of employees required at an agency for it to perform its constitutionally permissible and statutorily mandated functions,” the two men wrote. They argued that this goal goes hand in hand with the aforementioned deregulatory push, claiming that fewer regulations means that there will be fewer civil servants needed to enforce them.

There are some things that the Trump administration could lawfully attempt to do to reduce the number of civil servants. One option would be reduction through attrition by imposing a hiring freeze on new federal employees. When Trump tried imposing one three days into his first term, however, it faced a chaotic rollout and had numerous exemptions. He eventually scrapped it four months later for practical reasons.

Another would be to end work-from-home policies for most federal employees, which has often led to departures in private-sector companies that tried to reverse the post-Covid trend. The Trump administration, via the Office of Personnel Management, would almost certainly be able to end federal work-from-home policies that became popular during the Covid-19 pandemic. Every agency has different work-from-home rules, however, so it’s not clear how impactful such a change would be.

During his first term, Trump also sought to relocate some federal agencies as a backdoor means of downsizing their workforces. The Trump administration moved the headquarters of the Bureau of Land Management from D.C. to Grand Junction, Colorado, in 2019, prompting most of the affected workforce to be reassigned elsewhere within the federal government. Since the agency’s legal obligations remained intact, however, ProPublica reported that the relocation made it more difficult for the agency to finalize some policy changes that had been sought by the Trump administration.

All of this would not be enough to fit with DOGE’s ambitions. Musk and Ramaswamy, who have no legal background or government experience, argued that the president’s power to carry out mass firings is greater than most people think. Federal civil service laws could make such a maneuver difficult, but the two men argued that Trump could get around those laws using one phrase from the Civil Service Reform Act of 1978, which says that the president “may prescribe rules governing the competitive service.”

“That power is broad,” Musk and Ramaswamy claimed. “Previous presidents have used it to amend the civil service rules by executive order, and the Supreme Court has held—in Franklin v. Massachusetts (1992) and Collins v. Yellen (2021)—that they weren’t constrained by the Administrative Procedures Act when they did so.” They argued that Trump could cite this language to enact “large-scale firings,” force the “relocation of federal agencies,” and compel civil servants to return to the office five days a week.

Here, it’s worth noting that while Musk and Ramaswamy are listed as co-authors on this op-ed, much of its language and reasoning seems to come from Ramaswamy, who advocated for similar tactics against federal regulatory agencies during his brief presidential campaign last year and this spring. The former biotech executive told an audience at the America First Policy Institute in 2023 that he believed, based on his own research, that mass layoffs could circumvent federal civil service protections.

“If you actually read the U.S. Code in full, they don’t apply to mass layoffs [that] they call reductions in force,” Ramaswamy said at the time. “And large-scale reductions in force are absolutely the method that I’ll be using.” By only reading the U.S. Code, which is not actually federal law, Ramaswamy may have missed language in congressional appropriations bills that restricts executive-branch officials from relocating or downsizing many agencies without lawmakers’ approval. It is also questionable whether the White House could effectively eliminate a congressionally established agency simply by laying off its entire workforce.

A separation-of-powers battle is even more inherent to their third and final series of proposals, which call for massive cuts to government spending. Any American who watched Schoolhouse Rock as a kid knows that the “power of the purse” belongs to Congress, which has the power to fund or defund federal agencies as it wishes. Musk and Ramaswamy see the basic framework of the Republic as an obstacle to be overcome instead of a process to be followed.

“Skeptics question how much federal spending DOGE can tame through executive action alone,” they wrote in the op-ed, with considerable understatement. Those skeptics typically note that the Budget and Impoundment Control Act of 1974 generally forbids a president from not spending funds that were authorized and appropriated by Congress. Lawmakers enacted the law to constrain Richard Nixon, who autocratically tried to defund specific programs created by Congress on his own whims.

Musk and Ramaswamy would simply ignore that law. “Mr. Trump has previously suggested this statute is unconstitutional, and we believe the current Supreme Court would likely side with him on this question,” they wrote. I can’t really blame Trumpworld for assuming that the justices will act like a Pez dispenser of favorable rulings for them. But this one might go too far. The Supreme Court already drew a sharp line against a presidential line-item veto in the 1990s despite bipartisan support for it. Just this year, the justices also emphasized Congress’s broad discretion over how it structures appropriations when they turned back a right-wing challenge to the Consumer Financial Protection Bureau’s budgetary structure.

DOGE might have more success on cutting government spending—or any of its other priorities, for that matter—if it worked with Congress to enact them through legislation. House Republicans have even taken steps to facilitate this process: Georgia Representative Marjorie Taylor Greene said this week that she would chair a DOGE-themed subcommittee when the new Congress takes power in January. With Republican control of both chambers, it should theoretically be easier than ever to come up with major legislative reforms.

But the long, difficult work of writing legislation is a poor fit for DOGE’s incoherent knee-jerk ideological vision. Musk and Ramaswamy complained about “executive overreach” by regulators while proposing to use executive powers in legally dubious ways to deregulate en masse. They claimed that the president “owes lawmaking deference to Congress, not to bureaucrats deep within federal agencies” while suggesting that the president should simply ignore laws passed by Congress. And they denounce “unelected” civil servants as if they themselves hold public office.

Indeed, the vision seems to be not that “the people we elect run the government,” as the op-ed claims, but that rich and well-connected people should and do run it instead. Musk spent an estimated $200 million of his considerable fortune to help send Trump back to the White House this year. In return for that help, Trump has apparently given Musk free rein to reshape federal agencies that regulate Musk’s companies and purge the civil service that awards him lucrative government contracts. DOGE is not aiming to eliminate a wasteful, lawless, and antidemocratic bureaucracy in Washington—it is hoping to become one.