Elon Musk and Vivek Ramaswamy are relying on a conservative Supreme Court to support their ambitious plans to reduce federal regulation and increase government efficiency.
Musk and Ramaswamy, who were nominated by President-elect Trump, will chair the Department of Government Efficiency (DOGE), a new non-governmental commission aimed at dismantling government bureaucracy and cutting costs.
“With decisive electoral power and a 6-3 conservative majority on the Supreme Court, DOGE has a historic opportunity to reduce the structure of the federal government,” they wrote in their paper. Wall Street Journal editorial. “We are prepared for an onslaught from entrenched interests in Washington. We look forward to victory.”
The editorial raises the possibility that the Supreme Court, which was restructured by President Trump, who appointed three conservative justices during his first term, could mount a legal challenge from the left to the efforts led by Musk and Ramaswamy. It is based on the idea that it will be rejected.
But legal and financial experts suggested the court didn't give the pair much additional room for the sweeping reforms they were trying to enact.
“They want to carry the torch and go into the investigation,” said Joanne Needleman, head of the financial services regulation and compliance practice at law firm Clark. I need tweezers.” hill.
Mr. Musk and Mr. Ramaswamy cited Supreme Court decisions in two recent cases that significantly curtailed executive branch power as “orders” from judges seeking to reduce regulations.
In 2022, six conservative members of the high court in West Virginia v. Environmental Protection Agency (EPA) held that federal agencies cannot take actions of major political or economic significance without explicit authorization from Congress. The principles were solidified.
And last summer, by the same narrow margin, the justices in Roper Bright v. Raimondo overturned the Chevron decision, a 40-year-old administrative law precedent that directed judges to defer to administrative agencies when the law is ambiguous. .
Judges now have to substitute their own best interpretations of the law rather than relying on government agencies, effectively making it easier to overturn numerous regulations.
Musk and Ramaswamy wrote that the two rulings, taken together, suggest that federal regulations go “too far” beyond the authority given to them by Congress. They're going to destroy it all.
Nicholas Bagley, a University of Michigan law professor who served as chief legal adviser to Democratic Gov. Gretchen Whitmer, said the op-ed “reflects a misunderstanding” of what the high court actually did.
While Musk and Ramaswamy argued that the ruling set the agency's path forward, the justices told the court how it should think about challenges to the agency's actions. The agency now, and prior to the landmark decision, had the authority to review previously issued regulations.
“Nothing has changed regarding the authority to consider different approaches to regulation,” Bagley said. “If what they're saying is that the agency thinks it has a smoking gun in its legal argument, it can now adopt different regulations without going through the administrative process. , I think we'll soon find out that the court is making legal arguments that will be unsympathetic to the procedural shortcuts. ”
Needleman similarly suggested that pointing to the Supreme Court's recent decisions is not the “golden ticket” to accomplishing everything the pair proposed.
“I don't think Roper-Bright or the state of West Virginia isn't doing anything to reduce the size of the 'administrative state,' but what they can do is fundamentally change how these agencies operate going forward. It's about thinking about what you want to do and prioritizing it,” Needleman said. The Hill.
“Roper Bright was just an overreach of an agency, not an expansion or contraction of an agency,” she added.
Mr. Musk and Mr. Ramaswamy are looking to cut federal spending, and have also proposed repealing a 1974 law that prevents presidents from choosing not to spend money authorized by Congress. Mr Trump is explained the law “That's not very good practice. This legal disaster is clearly unconstitutional and a blatant violation of the separation of powers.”
Tech entrepreneurs predict the Supreme Court will be on the next president's “side.”
Bagley said that while the justices may be sympathetic to improving government efficiency, their conservative leanings will never outweigh their duty to the law.
“We're not going to completely rewrite the Constitution and administrative law just to accommodate this novel commission that President Trump has created,” he said.
Still, there are steps DOGE can take with little legal resistance.
As Musk and Ramaswamy pointed out in a Journal op-ed, they plan to identify a list of regulations for President Trump, arguing that Trump could immediately halt enforcement of the regulations and begin the process of rescinding them through executive action. I am doing it.
Agencies generally can rescind rules as long as they follow the typical notice-and-comment periods required by federal law and provide a “reasonable explanation” for the policy change. This process has never required the full involvement of the courts.
Bagley said the committee could direct federal agencies to facilitate the process of amending rules the Trump administration deems unfavorable, and a proposal to require federal employees to return to public service could be successful. He said that the quality is very high.
However, any attempt to not spend the funds that Congress seeks to spend would be “a highly aggressive action and likely to be unconstitutional.”
Mr. Musk and Mr. Ramaswamy's plan to reduce the size of the federal government is likely to face another hurdle. Both men intend to focus on what the executive branch can do unilaterally, but they may still encounter resistance.
They are tasked with working with the Office of Management and Budget (OMB) to enact the plan. Needleman noted that the Information and Regulatory Authority (OIRA) is also likely to play an important role in this process.
“It seems to me that if Trump really wanted them to do what he wanted, he would have appointed one of them as secretary.” [OMB]”They can dance around and declare great ideas and all that, but if they want those ideas to become reality, they have to go through OMB and OIRA,” Needleman said.
