Why This DOGE Won't Hunt

Elon Musk and Vivek Ramaswamy imagine Congress will fade into the Trumpian woodwork while the Supreme Court rubber stamps their diktats. I think they're in for a rude surprise.

Our topic today is the Department of Government Efficiency (DOGE), to be led by Elon Musk and Vivek Ramaswamy.¹

The taxonomy of DOGE is not yet altogether clear. It appears it will be a private organization with some undefined relationship with a to-be-formed subcommittee of the U.S. House of Representatives’ Oversight and Accountability Committee. Its staff will be comprised of, per Musk, “super high IQ small government revolutionaries” who are invited to submit their applications on Musk’s social media web site.

The chair of that subcommittee will be Marjorie Taylor Greene, who is, to say the least, a dangerous kook.² More promising is that various Senators and House members have signed on to a “DOGE caucus” that have indicated a willingness to work with Musk and Ramaswamy.

I. The Game Plan

On November 20, Musk and Ramaswamy published an op-ed piece in The Wall Street Journal outlining their plan to reform government. Anyone who has read even a few Musk tweets, or listened to Ramaswamy on the cable networks, will readily appreciate that the piece was written by lawyers, not the supposed co-authors.

The piece cites, as the legal foundation for DOGE’s presumed powers, two U.S. Supreme Court decisions: West Virginia v. Environmental Protection Agency (2022) and Loper Bright v. Raimondo (2024). We will return to those decisions in Part III.

According to Musk and Ramaswamy, DOGE plans to take three types of actions: (1) to rescind thousands of administrative regulations, (2) to slash the size of the federal workforce, and (3) to cut federal expenditures that Congress never authorized or intended.

What will be achieved? Elon Musk, while performing on stage with the very shady Howard Lutnick, has famously promised that he can find “at least two trillion” dollars to slash from the federal government (the linked video is short, and worth a watch).

Musk and Ramaswamy have set an “expiration date” for DOGE of July 4, 2026, promising “a birthday gift to our nation that would make the Founders proud.”

II. The Praiseworthy Goals

I find the goals of DOGE laudable (much as were those of the Simpson-Bowles Commission³ 14 years ago).

The U.S. bureaucracy has metastasized in recent decades, resulting in a dense thicket of enterprise-choking regulations. Moreover, our government wastes vast sums of money on programs that are of marginal benefit, if not downright harmful, and doubtless there are many people in the vast bureaucracy who would not be missed if they never showed up for work again.

However, in part because of DOGE’s announced approach, and in part because of the realities of checks and balances in U.S. government, and in part because of the character of Musk and Ramaswamy, DOGE’s prospects for grand success are slim indeed.

Saving $2 trillion a year is out of the question. Saving even $200 billion would be useful, but even at that, Trump’s chronically reckless spending means that the U.S. national debt ($36 trillion and climbing) is likely to increase rather than decrease.

III. The Predictable Problems

Let’s examine the three stated DOGE goals one by one.

A. Rescinding Regulations

As noted, I am in sympathy with DOGE’s goal of rescinding a host of federal regulations. I find myself in agreement with Wall Street Journal columnist Peggy Noonan (formerly a speechwriter for Ronald Reagan):

If your eyes have been at all open the past quarter-century, you know the administrative state is huge, largely unaccountable, and consists at least in part of levels of waste and sloth built on previous levels of redundancy and nonsense.

DOGE’s determination to slim down the administrative state seems to me the most achievable of its goals. However, my opinion comes with a huge asterisk: the achievements will be durable if, but only if, DOGE relies on Congress to legislate the changes.

Under the Administrative Procedure Act (the APA), developing and implementing regulations is a lengthy process involving notice to and comment from interested parties. Similarly, when a regulatory agency wishes to remove regulations, that also requires a lengthy process. Both those processes can be, and frequently are, attended with additional delay as legal challenges work their way through the court system.

Consequently, the best and quickest way to put the administrative state on a diet would be for DOGE to assemble a list of regulations it believes could be usefully repealed, along with another list detailing amendments that could usefully be made to regulations that will be retained. Those lists would then be presented to Congress for its vote. Given the Constitution’s grant to Congress, and only Congress, of the power to make laws⁴, the actions taken by Congress in response to the DOGE recommendations could circumvent the APA’s lengthy procedure, and would be legally unassailable.

Unfortunately, it appears DOGE plans to largely bypass Congress. Instead of having Congress pass laws, Musk and Ramaswamy say they will use “executive orders to roll back regulations,” claiming that approach “is legitimate and necessary to comply with the Supreme Court’s recent mandates.”

This is dangerous nonsense. In handing down West Virginia and Loper Bright, the Supreme Court didn’t issue “mandates.” It wrote detailed opinions deciding the particular cases before it. And what the Supreme Court wrote is that (1) the Supreme Court need not defer to administrative agencies in deciding whether regulations fall within the ambit of the authorizing legislation passed by Congress (Loper Bright), and (2) it is for Congress, not administrative agencies, to decide “major questions” about policy (West Virginia).

I invite you to read the opinions in Loper Bright and West Virginia (links included above). It will be plain that what animates those decisions is the foundational idea that the Constitution empowers our elected Congress, and not unelected administrative agencies, to make our laws. Those opinions are invitations, indeed, urgent invitations, to Congress to start doing its job again.

But what you will not find in those opinions is any suggestion that, with Congress chronically failing to do its job, it devolves upon the Executive (whose Constitutional duty is, far more modestly, to execute the laws made by Congress) to itself make (or, unmake) those laws. Indeed, the large number of cases in which federal courts, including the Supreme Court, have struck down Obama, Trump, and Biden executive orders as unconstitutional (consider simply the recent student loan forgiveness cases) gives the lie to the assertions of Musk and Ramaswamy.⁵

The famous “a pen and a phone” wielded by Obama may sound lovely for slicing various policy Gordian Knots, but the U.S. Supreme Court is precisely in the business of enforcing all the vital Gordian Knots inherent in our Constitutional separation of powers and checks and balances.

Strikingly, the entire op-ed piece by Musk and Ramaswamy is suffused with the idea that President Trump, acting in concert with his resident geniuses, who will be guided by “legal experts embedded in government agencies, aided by advanced technology,” can accomplish all of the promised regulatory reform without ever troubling Congress to do much of anything.

If DOGE and Trump do indeed attempt to accomplish the regulatory reform without tasking Congress to do its job, their results will be short-lived, and attended with extensive litigation and resistance. Courts are all but certain to continue striking down unconstitutional executive orders, much as they did to many executive orders of Obama, Trump in his first term, and Biden.

B. Slashing the Federal Workforce

Here, too, I have great sympathy for the stated goal of DOGE. There surely are substantial numbers of government employees either failing to do their jobs, or doing jobs that are actually hindering the greater good.

However, one must be careful not to throw the baby out with the bathwater. Once again, Peggy Noonan said it well:

Federal workers the past four years have, amazingly, made themselves look unnecessary by not bothering to show up at the office, and working at home. But some federal workers are the best we have—brilliant, unheralded, doing life-and-death work, making the wheels turn.

Musk’s penchant for mass firings risks, of course, creating peril for many government employees whose responsibilities and capabilities he cannot possibly understand.

Moreover, for better or worse, federal employees enjoy compensation and job protections that are superior to those of most employees in the private sector. Firing federal employees is not so simple as Donald Trump evicting an “apprentice” from his TV studio. There is, among other statutes, the daunting Civil Service Reform Act of 1978 to treat with. Employees fired for “unacceptable performance” are entitled to extensive due process protections, including written notice detailing the deficiencies and, in many instances, an appeal.

Here, too, one must consider that all of these surplus employees were hired in the first instance because Congress determined some task needed to be done and appropriated funds for its doing. If push really comes to shove, I suppose we could see a Constitutional clash of titans in which the Executive asserts his duty is to execute the law, and he can do that in whatever manner and with whatever employees he chooses.

But imagine, for a moment, that the Executive were to prevail in such a battle. Is the Trump Administration prepared to immediately find competent replacements for the existing bureaucrats whose duty is, for instance, to enforce the Clean Air Act, or to administer the banking system, or to run the military?

Again, if DOGE hopes to have any material success in this effort, it needs to enlist the efforts of Congress rather than attempt an end-run around Congress. And, in Congress, the inevitable clash of parochial interests and the imperative for compromise will result in an outcome far less radical than what Musk and Ramaswamy envisage.

C. Cutting Federal Expenditures

DOGE’s Wall Street Journal manifesto promises to cut federal expenditures that either are “unauthorized by Congress” or are “being used in ways Congress never intended.”

Again, I am in strong agreement that our government spends too much. With federal debt now topping $36 trillion, and with trillion dollar plus deficits adding to that total each year, our nation is in desperate need of some fiscal discipline.

I also agree, of course, that no federal spending is legitimate if not authorized by Congress. The Constitution is quite clear about that.

Despite these agreements, I find this budget-cutting portion of DOGE’s program to be the most ludicrous.

For starters, while Musk and Ramaswamy speak of expenditures that are “unauthorized by Congress,” they fail to identify any such expenditures. If DOGE is ever successful in identifying any such unauthorized expenditures (and I doubt it will be), they will amount to very little.

The only specific potential savings cited by Musk and Ramaswamy in their Wall Street Journal piece (cuts to the Corporation for Public Broadcasting, grants to international organizations, and funds for “progressive groups”), even if actually fully realized, amount to a grand total of $2.3 billion. Truly a tiny drop in the bucket.

And, not incidentally, even those $2.3 billion of identified expenditures were authorized by Congress. What Musk and Ramaswamy are saying is that they and many of their fellow Trump enthusiasts don’t like those expenditures. Okay, fine. Then persuade Congress to repeal them. But don’t dishonestly suggest the expenditures are either unauthorized or unintended.

Musk and Ramaswamy appear to recognize that their budget cutting approach is going to run headlong into Congressional power. They think they have a solution: encourage Trump to ignore the Impoundment Control Act, which prevents the Executive from refusing to make expenditures authorized by the Legislature. They write:

Mr. Trump has previously suggested this statute is unconstitutional, and we believe the current Supreme Court would likely side with him on this question.

Lots of luck with that, fellas. I have spent a lot of my life reading U.S. Supreme Court decisions, and have never seen a single suggestion in any opinion that the Supreme Court would find the Impoundment Control Act unconstitutional.

Indeed, in Train v. City of New York (1975), the Supreme Court held that even without that act, the president has no authority to impound funds. The decision in Train was unanimous, with the justices stretching from Douglas on the left to Rehnquist on the right.

The simple fact is that unless Congress is willing to reform the major entitlement programs, there is simply no way federal spending can be cut in any material way. Here’s the simple math from a recent CNBC news story:

In fiscal 2023, for example, the federal government spent a total of $6.1 trillion, according to the nonpartisan Congressional Budget Office.

Of that $6.1 trillion, about $3.8 trillion was already off limits for cuts on day one, legally obligated to go toward mandatory spending programs like Social Security benefits for retired workers, Medicare coverage and veterans benefits.

After that, roughly $650 billion was set aside to pay the interest on the national debt.

This left $1.7 trillion for everything else, known as discretionary funding. $805 billion of this was spent on national defense, a largely untouchable pot of money. Finally, the remainder was divided up among the federal departments that perform much of the visible, daily work of government, agencies like FEMA, NASA, and Customs and Border Protection.

Obviously, nothing approaching $2 trillion, or even half of that, can be saved without reforming the entitlement programs such as Social Security and Medicare. The same programs, in other words, that Trump consistently promised during his campaign would remain sacrosanct. As, of course, did Harris.

The bipartisan resistance to making the needed reforms is deeply unfortunate because unless major reforms are enacted, and enacted quickly, Social Security benefits will automatically be cut starting in 2033, and even at that the program will continue on shaky financial ground. Unless Congress increases the eligibility age to align benefits with life expectancy, reduces benefits for wealthy retirees, and returns more control over retirement savings to individuals, we will continue on our national path to disaster.⁶

Medicare and other entitlement programs are a separate train wrecks, also working great mischief on government finances.

So, if DOGE is to make any material progress on budget cutting, it will need to advocate for significant reform to the entitlement programs. That will require educating a public which has been reluctant to consider those reforms, and motivating legislators who have studiously avoided touching the so-called “third rail” (the rail carrying the electric current in many train systems).

Bringing the public and the legislators along will, in turn, require from the president strong support and consensus building. Such a concerted effort is difficult to mount in any administration, and will be especially difficult to accomplish in an administration whose early nominations for key cabinet and agency positions appear consonant with the themes of unquestioned loyalty, sycophancy, and retribution rather than coalition building.⁷

That’s not to say, of course, that Musk and Ramaswamy, won’t some day manipulate the numbers to claim budget cutting achievements far exceeding the actual facts (which will be perfectly in character given Tesla’s accounting practices or Ramaswamy’s fraudulent pumping of Axovant).

But, as I said at the start, Trump’s chronically reckless spending, and his lack of any real commitment to fiscal discipline, means that the U.S. national debt ($36 trillion and climbing) is likely to increase as we continue to run annual deficits, further imperiling our future prosperity.

There is, however, one sector of the economy that is certain to prosper if DOGE follows through on its announced intention to neuter Congress of its Constitutional duties and powers: the business of lawyers engaged in challenging those efforts. The explosion in litigation will be a thing to behold.

IV. Character Is Destiny

Heraclitus said “Character is destiny” 3,000 years ago. I believe it is still true today.

Elon Musk, placed in the role of proposing governmental reforms, has immense conflicts of interest arising out of his large roles in SpaceX, Tesla, xAI, Neuralink, and even The Boring Company.

He is also a “circus monkey” and a puppet of the Chinese Communist Party. (Hey, I didn’t say that. Vivek Ramaswamy did, only a year ago. And while I’m no fan of Ramaswamy, when he’s right, he’s right.)

Moreover, there is no single person in all of human history who has directly or indirectly collected more government largesse — by way of subsidies, tax breaks, direct grants, utility discounts, real estate giveaways, and laws and regulations designed to extract payments from his competitors — than Elon Musk. He is, truly, the all-time champion of milking taxpayers, ratepayers, and consumers.

And yet this is the man whom Donald Trump and his minions are celebrating as the answer to our fiscal woes. What we are likely to get instead, with Musk, Ramaswamy, and so many others who will populate Trump’s inner circle, is crony capitalism on steroids.

Yes, the noxious $7,500 EV federal tax credit is likely to be abolished soon after Trump takes office. But far more important to Musk and Tesla is the Environmental Protection Agency waiver that has, over the years, generated billions of income for Tesla.⁸ The effect of that waiver has been to require payments to Tesla by manufacturers of vehicles with internal combustion engines. The cost of those payments, of course, are passed along to consumers of the ICE vehicles.

I think it’s a safe bet that Musk will use his influence with Trump to do all he can to preserve that utterly outrageous and unfair extraction of wealth from the rest of us.

In all events, put Trump, Musk, and Ramaswamy in a room, and what you have is a room full of men who are deeply ambitious and congenitally dishonest, and who lack any ethical core. Meanwhile, circling Trump are many other men (and women) equally ambitious and amoral, and looking for ways to undermine the influence of Musk and Ramaswamy.

And, of course, what you have in Trump is a man who, while prizing loyalty above all other virtues, practices no loyalty himself. A man who will, without the slightest hesitation, throw Musk and Ramaswamy under the bus at the very first moment it becomes politically expedient to do so.

There’s no saying exactly when or how the great blowup comes, but come it will.

1. If you’re mystified by the title of this piece, here’s a clue.

2. Consider, as you read this, whether Trump, by parking Musk and Ramaswamy at DOGE, has managed to place two ambitious rivals in a role where they can do little lasting harm and are likely to fail. And whether, by having the deeply unpopular (even among Republicans) Greene riding herd over DOGE’s work, he has managed to reward her for her loyalty while at the same time assuring she has a position of little consequence.

3. The Simpson-Bowles Commission (after the names of its co-chairmen, Alan Simpson and Erskine Bowles), or more formally, the U.S. National Commission on Fiscal Responsibility and Reform, was created by a Barack Obama in 2010. It was the most serious effort ever to extend the solvency of Social Security and Medicare. Alas, it failed miserably, both because its members had very different views about tax and entitlement policies and because Obama lost interest in the commission’s work after Democratic losses in the 2010 midterm election.

4. The very first substantive provision of the Constitution, Article I, Section 1, states: “All legislative powers herein granted shall be vested in a congress of the United States, which shall consist of a Senate and House of Representatives.” Note those words, all legislative powers are vested in Congress. None of them is vested in the Executive or Judiciary.

5. Musk and Ramaswamy, in the The Wall Street Journal piece, make note of the “6-3 conservative majority.” That’s sort of true, but sort of not true. There were many interesting defections from that so-called majority during the last term. Moreover, every one of those “conservative” justices is deeply committed to some form of “originalism” that seeks to honor the Constitution’s meaning. Mark my words: notwithstanding the fears of many of my left-wing friends, not a single one of those justices will countenance Trump attempting to usurp the powers of the Legislative Branch.

6. Yes, I have seen the news that Utah Senator Mike Lee has proposed radical reform of the Social Security program in a 24-part post on X, and that Musk retweeted it. Already, Lee is being viciously attacked from the left (example here from Michael Hiltzik at the Los Angeles Times). I agree with Hiltzik that parts of Lee’s tweeting were inaccurate. But I don’t notice Hiltzik proposing any alternative reform plan.

7. And yes, Republicans now have a majority in both chambers, but those majorities are slender indeed, and will dissolve in an instant when the the topic of Social Security reform is broached.

8. An excellent explainer is in this article entitled Elon Musk, the EPA, and a Decision Worth Billions.