Not so fast
It’s one of the classic blunders. Not the most famous — “never get involved in a land war in Asia” — nor the most recent — “everything Trump touches dies” — but it’s up there. Men assume their expertise in one area of human endeavor makes them experts in another. (It’s always men, isn’t it?)
President Elon Musk and billionaire-dilettante Vivek Ramaswamy are joining the Trump 2.0 administration (1st classic blunder) to operate as his proposed, informal Department of Government Efficiency (DOGE). Never having worked in government before, the pair mean to “to cut the federal government down to size.” And inflict pain on the little people. Piece of cake.
Except.
The irony come Jan. 20 is that Trump, the naif in 2016, now brings experience, if not wisdom, to his White House job. Musk and Ramaswamy are the overconfident naifs (2nd classic blunder).
MSNBC’s Jen Psaki invited Bob Bauer, former White House Counsel to Barack Obama and Jack Goldsmith, former Assistant Attorney General in the Office of Legal Counsel under George W. Bush, onto her show Monday night to discuss the obstacles Musk-Ramaswamy may face in implementing government of, by, and for oligarchs through a presidential advisory commission.
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Whaddya mean, I can’t just slash shit?
Trump 2.0 may attempt to incapacitate agencies from within through firing and not hiring, and by installing unqualified MAGA loyalists to run agencies. But Bauer and Goldsmith write in their new substack that the Musk-Ramaswamy effort to drown government in the bathtub simply may not be legal:
The Department of Government Efficiency (DOGE), to be led by Elon Musk and Vivek Ramaswamy, is one tool that the Trump administration will use to deregulate. Trump says DOGE “will pave the way for my Administration to dismantle Government Bureaucracy, slash excess regulations, cut wasteful expenditures, and restructure Federal Agencies.” According to Musk and Ramaswamy, DOGE will work closely with the White House Office of Management and Budget. The two men will “serve as outside volunteers, not federal officials or employees,” and will “advise DOGE at every step to pursue three major kinds of reform: regulatory rescissions, administrative reductions and cost savings.” This will raise a hornet’s nest of legal issues.
One is the legal status of DOGE itself. It appears it will be a group of non-government officials who lack policy-implementing power and instead will advise the White House on various deregulatory steps. If so, DOGE would likely be governed by the Federal Advisory Committee Act (FACA). FACA defines an “advisory committee” subject to its rules as “any” committee, task force, “or other similar group” which (among other things) is “established or utilized by the President.” FACA, if it applies, will slow DOGE down, since it has rules about transparency, record keeping, and conflicts of interest. The incoming Trump administration is surely looking for ways to avoid FACA compliance—perhaps by “taking on an informal structure and rendering advice as individuals rather than as a group,” or by going all in on a 1974 Antonin Scalia Office of Legal Counsel (OLC) opinion that elements of FACA are unconstitutional. DOGE’s operation will likely be litigated.
A lot will hinge on “likely be governed” and “likely be litigated.” The first instinct of Trump and his allies in oligarchy will be to treat inconvenient regulations as “likely to be ignored.” Like conflict-of-interest rules and transparency regulations. But a more glaring problem for Musk-Ramaswamy, says Goldsmith, is that as nongovernmental advisers they’ll lack real authority to impose any government shrinkage they recommend. Plus there are a hornet’s nest of federal laws and regulations that may impede the efforts of these wannabe masters of the universe to build better worlds in their image.