After the 2024 election, President Trump announced the establishment of the Department of Government Efficiency (DOGE) to be led by Elon Musk and Vivek Ramaswamy. Not actually a federal agency, DOGE will make recommendations to the Trump administration to reduce the size of the federal government. An incoming administration setting a goal to reduce the size of the federal government is not a novel concept, but this effort could have different results. DOGE could have significant implications for the federal departments and agencies that are most relevant to Section members and our day-to-day work, including those who work for those parts of the federal government.
Musk and Ramaswamy have sent early signals on the intended DOGE efforts, including a focus on “regulatory rescissions, administrative reductions and cost savings.” Regarding regulatory rollback, DOGE intends to present a “list of regulations to President Trump, who can, by executive action, immediately pause the enforcement of those regulations and initiate the process for review and rescission.” Interestingly, Musk and Ramaswamy believe “executive orders” can be used to eliminate regulations, in part, due to the U.S. Supreme Court West Virginia v. EPA and Loper Bright v. Raimondo opinions.
DOGE appears to be taking a page from Musk’s playbook when he acquired X (formerly known as Twitter), where he reduced employment by 80% and forced employees back into the office full time. Musk and Ramaswamy intend a mass head-count reduction and the “number of federal employees to cut should be at least proportionate to the number of federal regulations that are nullified.” There will be low-hanging fruit for DOGE, e.g., a full-time in-office policy will likely result in voluntary departures, but the early signals by Musk and Ramaswamy do not seem to appreciate the nuances of the path forward that will be necessary to achieve DOGE’s stated goals.
For the vast majority of federal regulations, for example, there will be no substitute to notice and comment rulemaking consistent with the Administrative Procedure Act to eliminate the regulations. Each rulemaking action will need to be consistent with the underlying statutory authority and supported by the associated administrative record. DOGE should expect most of these actions to be challenged in federal court, so the procedural and substantive requirements will be necessary to successfully defend elimination of regulations. Post-Loper, agencies will not receive deference to its interpretation, which could cut against DOGE’s efforts depending on the specific statute, regulation, and the agencies’ interpretation.
A problem for DOGE is that while there are certainly examples of federal agencies pushing the envelope via rulemaking, in most circumstances they have the legal authority to adopt the existing rules. An additional problem is how does DOGE expect agencies to undertake—at scale—the administrative actions necessary to achieve its goal, defend those actions, and continue to execute its statutorily mandated functions (i.e., an avoid mandatory duty lawsuits), with what appears to be a historic reduction in the federal workforce. Do layoffs happen before or after the regulatory recissions?
Practically, unless Congress also modifies or rescinds various statutes, which is unlikely, it will be difficult for DOGE to achieve its goals as currently intended. Further, there is a question as to whether some of DOGE’s goals make sense as currently envisioned. Regulated industry, for example, needs to obtain the necessary permits or other authorizations required by federal statutes in a timely and efficient manner. Reducing a federal agency budget and head count does nothing to achieve those goals, again, unless the statute is modified or rescinded. A hope for DOGE is a thoughtful assessment of current budget, staffing, and priorities for each agency, that recommends investment in critical regulatory programs. For example, increasing the budget and staffing at EPA for processing Safe Drinking Water Act Class VI Underground Injection Control permits for carbon capture and sequestration projects or processing new chemical applications under the Toxic Substances Control Act.
The expectations of Musk and Ramaswamy for DOGE are noteworthy and potentially historic, including for Section members and our work, though time will tell if this ambition will run into the reality of federal administrative law.
Editor’s Note: On January 20, 2025, it was reported that Vivek Ramaswamy would depart DOGE to run for governor of Ohio.
