Elon Musk, DOGE, Civil Servants & the US Constitution

It's about a year, now, since I wrote a newsletter which compared the US and UK approaches to scrutinising their officials.  It turns out that concerns about the American approach to such scrutiny underlie much of Elon Musk's and Vivek Ramaswamy's attitude to 'their regulatory state'.  

Here's an extract from what I said, followed by the Musk/Ramaswamy plans.

The 1914-18 First World War then demonstrated severe weaknesses in both [the US and UK] administrations.

The UK answer (courtesy of Lord Haldane) was to ensure that civil servants became very close to ministers.  UK officials are supposed to know their ministers' minds so well that they take the same decisions that ministers would take, given the law and the substance of the relevant government policy.  ...

President Woodrow Wilson also wanted to strengthen his Civil Service whilst ensuring that, when civil servants exercised discretion, their decisions were the legitimate expression of the views of their political masters.  But he chose a quite different route to this end.  His alternative answer was the greatest possible separation of functions between politicians and officials.  Civil servants were to take decisions on specific cases within rules set by politicians.  This was intended to ensure that political interests (and corruption) did not influence administrative decisions.  ... These rules are now published annually and [now fill approaching 100,000 pages]. 

Wilson's functional separation has been eroded by the politicisation of the top levels of the US executive.  Wilson had hoped to administer government, as in the UK, through a wholly merit-based civil service.  But the US spoils system was too strong.  There are now 2,000 senior posts which are Presidential appointments with the result that many candidates have few relevant qualifications and little relevant experience, and many posts remain open long after the arrival of a new President. 

In practice, each part of the federal bureaucracy now makes rules for itself because politicians do not have the time to do so.  Also, as American politicians are not very interested in holding officials to account, effective accountability is now to the courts rather than to the President or Congress.  All US courts, and particularly the American Supreme Court, appear to be much more 'political' than their UK counterparts.

The American courts have recently changed their approach:- 

The leading case used to be Chevron which involved a highly technical dispute over the meaning of a specific term in the Clean Air Act. Congress did not define that term so the Environmental Protection Agency  defined it for itself.  The question at issue was whether the court should defer to the agency's interpretation or interpret the statute itself.  The court chose to defer to the EPA and so established a default rule of deference going forward.

But Chevron was overturned earlier this year in Loper Bright Enterprises whose decision David French, in the New York Times, described as 'signalling that America may be on the verge of a welcome restoration of proper constitutional order'.  Brooke Masters, writing in the FT, argued on the other hand that 'many US businesses will be in for a shock when they see the real world consequences of tearing up a regulatory regime that America has lived with since 1984'.  Anjana Ahuha, also in the FT, noted that 'for companies feeling suffocated by regulation this will be welcome. ... Customers and citizens however should tremble.'

And so we now come to Messrs Musk and Ramaswamy - the joint-heads of DOGE (the Dep't of Government Efficiency) - writing in the Wall Street Journal:

Our nation was founded on the basic idea that the people we elect run the government. That isn’t how America functions today. Most legal edicts aren’t laws enacted by Congress but “rules and regulations” promulgated by unelected bureaucrats—tens of thousands of them each year. Most government enforcement decisions and discretionary expenditures aren’t made by the democratically elected president or even 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.

...

In West Virginia v. Environmental Protection Agency (2022), the justices held that agencies can’t impose regulations dealing with major economic or policy questions unless Congress specifically authorizes them to do so. In Loper Bright v. Raimondo (2024), the court overturned the Chevron doctrine and held that federal courts should no longer defer to federal agencies’ interpretations of the law or their own rulemaking authority. Together, these cases suggest that a plethora of current federal regulations exceed the authority Congress has granted under the law.

...

DOGE will work with legal experts embedded in government agencies, aided by advanced technology, to apply these rulings to federal regulations enacted by such agencies. DOGE will present this 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. This would liberate individuals and businesses from illicit regulations never passed by Congress and stimulate the U.S. economy.

When the president nullifies thousands of such regulations, critics will allege executive overreach. In fact, it will be correcting the executive overreach of thousands of regulations promulgated by administrative fiat that were never authorized by Congress. The president owes lawmaking deference to Congress, not to bureaucrats deep within federal agencies. The use of executive orders to substitute for lawmaking by adding burdensome new rules is a constitutional affront, but the use of executive orders to roll back regulations that wrongly bypassed Congress is legitimate and necessary to comply with the Supreme Court’s recent mandates. And after those regulations are fully rescinded, a future president couldn’t simply flip the switch and revive them but would instead have to ask Congress to do so.

...

The number of federal employees to cut should be at least proportionate to the number of federal regulations that are nullified: Not only are fewer employees required to enforce fewer regulations, but the agency would produce fewer regulations once its scope of authority is properly limited. Employees whose positions are eliminated deserve to be treated with respect, and DOGE’s goal is to help support their transition into the private sector. The president can use existing laws to give them incentives for early retirement and to make voluntary severance payments to facilitate a graceful exit.

So ... what happens next?

It reminds me of the post-Brexit promise to review or repeal all 4000+ pieces of retained EU law by the end of 2023 - a promised abandoned by Kemi Badenoch, no less, in May 2023.  Even if DOGE is sensible and even if there is no institutional resistance, the task facing the new US administration is mind-boggling.

At a deeper level, however, it's very worrying.  There is surely no point in 'deferring to Congress', even though this is DOGE's purported aim.  Congress, like our own Parliament, does not have the capacity to scrutinise detailed regulations and its members have no interest in doing so.  It looks as though scrutiny will in practice become the responsibility of Elon Musk, Vivek Ramaswamy and their mates - not quite what the founding fathers, or Woodrow Wilson, had in mind.

Martin Stanley