In the Wall Street Journal, Elon Musk and Vivek Ramaswamy outline their approach to cutting the size of government: The DOGE Plan to Reform Government – Following the Supreme Court’s guidance, we’ll reverse a decades long executive power grab. From the core of the article:
… Our North Star for reform will be the U.S. Constitution, with a focus on two critical Supreme Court rulings issued during President Biden’s tenure.
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.
This is a fairly sophisticated separation of powers analysis for a couple of billionaires. (Sounds like they have been reading Justice Gorsuch's concurrences). Also it's a notable focus on deregulation (as opposed to just government efficiency, which is a somewhat different thing.) The key component here is the major questions doctrine (MQD), invoked by the Court in the West Virginia case to require “clear congressional authorization” for administrative or executive agencies to exercise delegated authority over “major policy decisions." (I argue here that the doctrine is consistent with originalism, as a protection against the executive branch overreading vague statutes to claim lawmaking authority that the executive branch shouldn't have.) Although the MQD is a canon of judicial interpretation, after West Virginia the President doesn't need to wait for regulations to be challenged in court — he has the power (under the executive vesting clause) and arguably the duty (under the take care clause) to review executive branch claims of authority to assure that they are consistent with the MQD.
Further, as the article notes, the President likely has power (as part of the executive power of prosecutorial discretion) to pause enforcement while considering whether claims of delegated authority comply with the MQD. Again, I don't think the President has to wait for the Court to rule. As head of the executive branch, the President has the power and duty to assure the executive branch is operating constitutionally (including that it is staying within its delegated power).
And, related to these points and not mentioned in the article: if regulations are challenged in court under the MQD, I would not think the President has a duty to defend them. Whether the President has a duty to defend statutes passed by Congress against constitutional challenges is debated — but whatever arguments can be made in favor of such a duty, they seem not to apply to claims that regulations exceed delegated authority. So the President can decline to litigate and agree to withdraw the challenged regulation.
Thus Musk and Ramaswamy see a dynamic that perhaps the Court in West Virginia did not fully appreciate: the MQD doesn't just empower courts — it empowers a deregulatory President (if that's what Trump wants to be).
Posted at 6:08 AM