Musk, Ramaswamy ‘DOGE’ confidence in Supreme Court may be tested

Elon Musk and Vivek Ramaswamy are leaning on the conservative Supreme Court to support their ambitious plans to slash federal regulations and increase government efficiency.  

Tapped by President-elect Trump, Musk and Ramaswamy will head the newly minted "Department of Government Efficiency," or DOGE, a nongovernmental commission to dismantle government bureaucracy and cut costs. 

“With a decisive electoral mandate and a 6-3 conservative majority on the Supreme Court, DOGE has a historic opportunity for structural reductions in the federal government,” they wrote in a Wall Street Journal op-ed. “We are prepared for the onslaught from entrenched interests in Washington. We expect to prevail.” 

The op-ed leans on the idea that a Supreme Court recrafted by Trump, who appointed three conservative justices during his first term, will reject legal challenges from the left that might rise against initiatives led by Musk and Ramaswamy.

But legal and financial experts suggested that the court has not given the duo much additional leeway for the sweeping changes they seek to enact.  

“They want to go in with a blow torch, and really it's going to take a pair of tweezers to really unravel what the bureaucratic infrastructure is in Washington,” said Joann Needleman, who leads the financial services regulatory and compliance practice at law firm Clark Hill. 

Musk and Ramaswamy cited Supreme Court rulings in two recent cases that sharply curbed the power of executive agencies as a “mandate” from the justices to cut back regulations.  

In 2022, the high court’s six conservatives in West Virginia v. Environmental Protection Agency (EPA) solidified a doctrine that federal agencies can’t take actions with major political or economic significance without clear authorization from Congress.

Then, last summer, the justices in Loper Bright v. Raimondo overturned by the same margin the Chevron deference, a 40-year administrative law precedent that instructed judges to defer to agencies in cases where the law is ambiguous.  

Now, judges must substitute their own best interpretation of the law, instead of looking to agencies — effectively making it easier to upend scores of regulations.  

Musk and Ramaswamy wrote that, together, the two rulings suggest a “plethora” of federal regulations exceed the authority agencies were granted by Congress. They intend to tear it all down.  

Nicholas Bagley, a University of Michigan law professor who served as Gov. Gretchen Whitmer’s (D) chief legal counsel, said the op-ed “reflects a misunderstanding” of what the high court actually did.  

While Musk and Ramaswamy contend the rulings established a path forward for agencies, the justices told courts how to think about challenges to agency action. Agencies have had the authority to reconsider regulations they previously issued, both now and before the landmark decisions. 

“Nothing changed with respect to their authority to consider different approaches to regulating,” Bagley said. “If what they're saying is agencies can now adopt different regulations without going through the administrative process, because they think they've got some clincher of a legal argument, I think they're going to find out very quickly that the courts are not likely to be sympathetic with cutting procedural corners.” 

Needleman similarly suggested that pointing to the Supreme Court’s recent decisions is not the “golden ticket” to accomplish all that the pair laid out. 

“I don't think Loper Bright or West Virginia do anything to help shrink the size of the ‘administration state,’ but what they can do is basically give thought to and prioritize how they want these agencies to run moving forward,” Needleman told The Hill. 

“Loper Bright was nothing more than agency overreach, not agency expansion or contraction,” she added. 

Eyeing cuts to federal spending, Musk and Ramaswamy have also proposed squashing a 1974 law that blocks presidents from choosing not to spend monies authorized by Congress. Trump has described the law as “not a very good act; this disaster of a law is clearly unconstitutional — a blatant violation of the separation of powers.” 

The tech entrepreneurs predict the Supreme Court would “side” with the president-elect. 

While the justices may look favorably on boosting government efficiency, their conservative bent would likely not outweigh their obligation to the law, Bagley said.  

“They're not going to recraft entire swaths of constitutional and administrative law just to accommodate this novel committee that President Trump has set up,” he said. 

Still, there are actions DOGE could take with little legal push back.  

As Musk and Ramaswamy noted in their Journal op-ed, they plan to identify a list of regulations for Trump, who they argue can immediately halt enforcement of the rules and begin the process of rescinding them via executive action. 

Agencies can usually rescind rules as long as they follow the typical notice-and-comment period required under federal law and provide a “reasoned explanation” for their changes in policy. This process has never required outright involvement from the courts. 

The commission could direct federal agencies to begin the process of amending rules Trump’s administration finds objectionable with ease, and requiring federal employees to return to office could very well succeed, Bagley said.  

But attempting not to spend money Congress required to be spent would be a “very aggressive move and likely unconstitutional.” 

Musk and Ramaswamy’s plans to slash the federal government down to size are likely to face other obstacles. While the pair plan to focus their efforts on what they can do unilaterally from the executive branch, they could still encounter resistance. 

They are tasked with working with the Office of Management and Budget (OMB) to enact their plans. The Office of Information and Regulatory Affairs (OIRA) will also likely be crucial to this process, Needleman noted. 

“It seems to me that if Trump really wanted them to do what he wants him to do, he would have appointed one of them as the director of [OMB],” Needleman said, adding, “They can dance around and proclaim great ideas and stuff, but if they want those ideas implemented, it's got to go through OMB and OIRA.”