The DOGE Daze of Regulatory Reform

Elon Musk and Vivek Ramaswamy have announced an audacious initiative to slash red tape, cut government costs, and tame the federal bureaucracy. Their aim, announced in a Wall Street Journal op-ed, is nothing less than a “systematic reduction” in the size and scope of the federal government. Their cheekily named “Department of Government Efficiency (DOGE)” will pursue “regulatory rescissions, administrative reductions, and cost savings” ordered by “executive action.” And they promise to deliver results by July 4, 2026. The Declaration of Independence complained King George III had “erected a multitude of New Offices, and sent hither swarms of Officers to harrass our people, and eat out their substance.” Insofar as this problem persists today, Musk and Ramaswamy see “no better birthday gift to our nation on its 250th anniversary than to deliver a federal government that would make our Founders proud.”

Meaningful regulatory pruning is long overdue. The federal government spends and regulates too much. Further, as they note, too many regulatory and administrative decisions are made by agency personnel instead of our elected representatives. Curtailing and constraining the administrative state are necessary to reduce burdens on the American people and restore political accountability. Nonetheless, Musk and Ramaswamy’s brash claims should also bring a sense of déjà vu.

Numerous presidents have put together teams of experts and blue ribbon panels to recommend government reform. From Ronald Reagan’s Grace Commission to Al Gore’s Reinventing Government Initiative, there have been repeated efforts to identify waste, fraud, and abuse within the budget and rationalize the rules government agencies impose on themselves and, more importantly, the public. Yet such initiatives have generally failed to deliver, largely because Congress has failed to go along—and efforts by the executive branch to go it alone have not fared much better.

The first Trump administration also had ambitious plans to “drain the swamp,” not least by slashing away at the regulatory kudzu that engulfs the American economy. The new administration’s ambitious deregulatory plans quickly ran aground amid legal challenges, mainly because some administration officials were inattentive to relevant legal constraints.

At the Environmental Protection Agency, for example, Trump’s first administrator, Scott Pruitt, sought to delay and undo the late-adopted Obama administration rules governing pesticides, coal ash, chemical facility disclosure requirements, and the scope of “waters of the United States” subject to federal regulation under the Clean Water Act. In case after case, however, the EPA was rebuffed for cutting procedural corners, failing to explain its actions adequately, and asserting imaginary authority to simply delay the effectiveness of promulgated rules. Quick-and-dirty deregulation does not work, as Pruitt’s successor, Andrew Wheeler, understood.

Over time, the Trump administration got its sea legs and made better progress at constraining regulatory growth, but it nonetheless amassed a striking record of failure in federal court. Whereas prior administrations generally prevailed in over two-thirds of the cases challenging their regulatory actions, the Trump administration could not even win one in four, according to one academic analysis. Even in the Supreme Court, the Trump administration prevailed less often than prior administrations, and a failure to do the hard work to justify administrative actions was often part of the cause. Even efforts to undo arguably unlawful initiatives foundered when pursued in a slapdash fashion.

Musk and Ramaswamy are confident this time will be different, thanks to “two critical Supreme Court rulings” that will serve as their “North Star for reform.” In West Virginia v. Environmental Protection Agency (2022), the Supreme Court reaffirmed that federal agencies only have that authority delegated to them by Congress and that agencies must identify clear statutory authorization for broad exercises of regulatory authority. Then, in Loper Bright Enterprises v. Raimando (2024), the Court overturned the so-called Chevron doctrine, eliminating the obligation of federal courts to defer to reasonable agency interpretations of ambiguous statutory text.

These decisions were significant rebukes to self-aggrandizing agencies. Both reaffirmed the foundational principle that federal agencies lack the power to do much of anything until Congress delegates power to them—what we might call a “Delegation Doctrine.” The EPA, National Marine Fisheries Service, Consumer Financial Protection Bureau, and all of the other alphabet soup agencies were created by Congress and solely imbued with that power Congress sought to bestow. That any of these agencies see a problem and has an idea for a fix, does not license unilateral action absent legislative authorization, nor may agencies rummage around in the U.S. Code seeking previously undiscovered sources for newly sought authority. Pouring new wine out of old bottles is not faithful execution of the laws.

Yet West Virginia, by its terms, is limited to “extraordinary cases,” such as those implicating major economic or political significance. It is not a universal trump card. Loper Bright Enterprises will actually make it more difficult for the executive branch to revise some longstanding interpretations of agency authority because courts will have no obligation to accept the new interpretation. (In this regard it is worth remembering that Chevron deference was born out of Reagan administration efforts to deregulate.) Moreover, as The Chief Justice explained in his opinion for the Court, prior agency interpretations upheld by courts remain good law, protected by statutory stare decisis, even if they relied upon Chevron. Both decisions can be deployed against recent agency power grabs, but neither is a simple antidote to long-entrenched regulatory programs.

Musk and Ramaswamy are correct that agencies (and courts) have not always adhered to the principle that they may only exercise the power Congress delegated to them. The Council on Environmental Quality is a case in point, having long asserted the authority to issue regulations implementing the National Environmental Policy Act that Congress never authorized. The Federal Trade Commission is another. Insofar as these and other agency programs, regulations, and initiatives were never properly authorized, the Trump administration should be able to unwind these programs if it so chooses. But this cannot be done immediately through executive edict or without attention to legal niceties.

It is a core principle of administrative law that amending or revoking a regulation generally takes the same amount of time and effort that it took to adopt the regulation in the first place. If rules governing the amount of energy a dishwasher may use or requiring specific corporate disclosures went through notice-and-comment rulemaking, rescinding such rules will have to go through the same process, even if the agency believes it should never have adopted the rule in the first place. As the Supreme Court explained in 1983 in its landmark Motor Vehicle Manufacturers Association v. State Farm Mutual Automobile Insurance Co. decision (commonly referred to as State Farm) “the direction in which an agency chooses to move does not alter the standard of judicial review established by law.” In doing so, it expressly rejected the argument that it should be easier to rescind regulations than to impose them in the first place. To the contrary, the Court explained “an agency changing its course by rescinding a rule is obligated to supply a reasoned analysis for the change beyond that which may be required when an agency does not act in the first instance.”

The first Trump administration careened headlong into this principle when it tried to rescind the Obama Administration’s Deferred Action for Childhood Arrivals (DACA) program. Even though the Trump Administration claimed, with some merit, that aspects of DACA were illegal, the rescission was “arbitrary and capricious” because the Department of Homeland Security failed to fully consider a range of options and offered an inadequate explanation for the policy change. Given the reliance interests at stake, the Court explained, the executive branch could not simply stop implementing DACA, even if it might be unlawful.

Musk and Ramaswamy suggest they can get around this problem because the President “can, by executive action, immediately pause the enforcement” of regulations DOGE concludes lack adequate statutory authorization, to “liberate individuals and businesses from illicit regulations never passed by Congress” and buy time for agencies to formally rescind them. If only it were that simple. Many regulations impose burdens on the private sector without requiring direct enforcement. Banks and financial institutions, for instance, must certify compliance with applicable rules, whether they believe an enforcement action is likely. Until existing regulations are repealed, those who refuse to comply act at their own risk. Even in the face of executive branch non-enforcement, regulatory penalties may accumulate, and firms would remain at risk of later enforcement actions by subsequent administrations. Some regulations can also be enforced through citizen suits, such as those filed by environmental and consumer groups and litigious state attorneys general. The President has no authority to “pause” such suits, even if he believes the underlying rules lack legitimate legal authority.

Musk and Ramaswamy’s stated aim is a good one. Federal administrative agencies often exert too much power and exceed the scope of their delegated authority. Even where regulations are lawful, they usually hamper innovation, impose disproportionate costs, and make it too difficult for other parts of the government and the private sector to get things done. Bringing the administrative state to heel is a laudable goal, but a successful trek down this road requires more than good intentions. Meaningful regulatory change through the traditional administrative process is slow and cumbersome, particularly where such changes will be subject to judicial review.

The problem Musk and Ramaswamy seek to address was facilitated and enabled by Congress, which often delegated broad authority and failed to keep a tight leash on the administrative entities it empowers. So, just as Congress sowed the seeds of administrative overreach, the surest way to solve this problem is for Congress to take legislative action that uproots agency excess. The problem of executive branch overreach cannot be solved by executive branch edict alone. If Musk and Ramaswamy care about delivering results, this is a lesson they will take to heart.

Jonathan H. Adler is the inaugural Johan Verheij Memorial Professor of Law and Director of the Coleman P. Burke Center for Environmental Law at the Case Western Reserve University School of Law. He is a contributing editor to Civitas Outlook.