What is DoGE’s hardest task?

The nasty fight between Elon Musk and Steve Bannon over H-1B visas, meant for high-skilled workers, is the Ghost of Christmas Future. That’s not because the visas themselves will be a perennial problem. It’s because of three larger implications, foreshadowed by the visa dispute.

One is the battle between populist nationalists (represented, in this case, by Steve Bannon) and growth-oriented American companies with extensive foreign markets. Those are led by hi-tech industries, represented here by Elon Musk, which benefit from bringing in foreign engineers, programmers and others.

The second implication is that, in a country with only two major parties, there are bound to be major cleavages within each party on a wide range of issues.

The third implication is that parties with narrow majorities on Capitol Hill are subject to “holdouts,” members who threaten to vote “no” and kill the bill unless their demands are met. They have significant negotiating leverage because of the narrow majority. We can already see the holdouts’ power in the dispute over a new House speaker.

All three implications will continue to hurt Republicans and limit their ability to accomplish the goals they campaigned on. Expect lots more fights among them on a range of issues. When Democrats had that problem in the House, Speaker Nancy Pelosi had enough savvy, experience and clout to keep the strays in line. So far, her Republican successor, Mike Johnson, has not shown the same skills.

Although Elon Musk chose to speak out on visas, they are a minor issue compared to the major task Donald Trump has given him and Vivek Ramaswamy. They are tasked with leading the Department of Government Efficiency (DoGE), which has promised to cut government spending, federal employment and unnecessary regulations.

Most attention will center on proposed cuts in spending and employment. That’s understandable. Washington is shelling out far more than it takes in and far more that it can afford. DoGE will at least try to reduce that enormous problem. Expect controversy — and the media focus — to be on its proposed budget cuts, department closings and layoffs from the federal workforce.

But DoGE has another major task, which will receive much less coverage but is equally important. Musk, Ramaswamy and their aides must slash the tangle of bureaucratic regulations that impose huge, hidden costs on consumers and producers, stifle economic growth and seize the legislative role of Congress.

Those rules, imposed with little control by elected officials, affect how Americans live their daily lives, everything from driving to work to cooking dinner. To paraphrase Seinfeld’s Soup Nazi, “No gas car for you!” If your congressman voted against gas cars, you can respond by voting for or against him. If a mid-level bureaucratic decreed it, you better start shopping for electric vehicles.

Changing the scope of this bureaucratic authority poses hard questions for DOGE.

• How slow and difficult will it be to cut specific regulations?
• Can they roll back the mammoth administrative apparatus that imposes these rules?
• Can they restore effective control to elected officials in Congress and high-level officials in each agency, appointed by the president? And
• Can they make their proposed changes permanent? Or will the bureaucratic behemoth simply pause its growth, only to resume under a more favorable administration?

There is no question big changes are surely needed. Federal agencies now issue about 100,000 pages of new regulations every year. How many do they remove? Almost none. They don’t have any incentives to do so.

Nor do they care if those regulations impose heavy costs or have unintended effects. The bureaucracies don’t have any responsibility for those, so why should they care? The result is a mountain of detailed rules that grow ever-steeper, ever-more complex and ever-more burdensome.

To solve these problems, or at least reduce them, DOGE needs to focus on four overriding goals:

1. Reducing the dead-weight drag of regulations on the economy without removing essential safeguards
2. Making significant changes, not minor ones
3. Ensuring those changes have an enduring impact by making them difficult to reverse
4. Increasing democratic oversight of future rule-making, a legislative responsibility that Congress has wrongfully (and perhaps unconstitutionally) abdicated

The latter two tasks are closely connected. The more Congress is involved in ratifying DoGE’s proposals, the harder it will be to overturn them by presidential fiat. Conversely, the more that is done by executive order, the easier to reverse later.

These are enormous tasks. If they succeed and endure, they will form an inflection point in how America is governed. The last such inflection point began under President Franklin Roosevelt in 1937. That’s when he finally flipped the Supreme Court, which, until then, had ruled his major programs were unconstitutional. The high court’s submission began the long process of building the administrative state. That process has continued apace for almost a century, with short breaks during the Reagan years and Trump’s first term.

The cumulative result is that America’s governance has become increasingly centralized in Washington and bureaucratized within the executive branch. After Roosevelt began the process, the biggest step came when Lyndon Johnson passed the Great Society programs. Richard Nixon added to them, as did Barack Obama with the Affordable Care Act. Joe Biden didn’t make major changes. He simply threw more money at existing programs, fueling inflation.

Although Congress passed the laws these agencies implement, the language is typically vague, giving the agencies enormous discretion to write their own detailed rules. Hundreds or even thousands of times, the laws say “the secretary shall determine” how particular rules should be written and to whom they should apply. The fundamental question here — one the Supreme Court is taking up in a series of cases — is whether such vague, discretionary laws violate the Constitution by improperly delegating Congress’s legislative function to the executive branch. Congress cannot delegate that function, even if it wishes to.

Of course, the executive agencies don’t stop at making the rules. They also enforce them and adjudicate any complaints. That means they consolidate the legislative, executive and judicial functions within each agency. That, too, raises fundamental constitutional questions.

Donald Trump attacked these trends in his first term, but his efforts were quickly wiped out by the Biden administration and the daily churn of federal bureaucracies. That is the fate of changes made by executive order. What one president does, the next can undo. In fact, the next president doesn’t have to do anything. He can just stand aside and let the hundreds of federal bureaucracies return to their daily grind of imposing, enforcing and adjudicating new regulations.

Stopping this continual process will be DoGE’s hardest task. Some can be done by the presidential order, but those changes won’t be locked in unless Congress passes them. That won’t be easy, not only because the Republican majority is slim but because Trump has so many other big items on his agenda. To make his task even harder, he needs to accomplish it in the next eighteen months, before Washington turns to the mid-term elections.

Trump’s opponents in the bureaucracies and Congress will impede the proposed reforms at every turn, aided by the slow, difficult process of repealing current regulations. As one expert, Jennifer Pahkla, puts it, “DoGE is about to crash into this wall of weaponization of the complexities of law, policy, regulation, process and lore in defense of the status quo.”

Beyond trying to overcome those obstacles and implement DoGE’s proposed reforms, President Trump plans to make one other major change to the administrative state. He will issue an executive order reclassifying federal employees directly involved in policymaking. His goal is to make them “at will” employees he can dismiss. Currently, those policymakers, like nearly all federal employees, are effectively given lifetime jobs. They are protected by elaborate, time-consuming procedures that make it almost impossible to reduce the workforce, fire incompetent employees or ensure federal agencies work toward the administration’s goals, not their own. That’s obviously a much bigger problem for Republican presidents than for Democrats.

Trump tried to remove these bureaucratic roadblocks at the end of his first term, when he created a new employment classification, “Schedule F.” The new category strips policy-making employees of civil-service protections. Because Trump created that new schedule near the end of his term, it had little impact before Biden tossed it out. Trump will try again and, of course, face legal challenges and a frontal attack from Democrats and their media allies.

In seeking to reform these deeply-entrenched government structures, Trump can expect help from the Supreme Court, which has already restricted the ability of administrative agencies to interpret their own rules. That was the effect of their decision overturning “Chevron deference,” which told courts to bow to the agencies’ interpretations of ambiguous laws. Expect more major cases to come down the line, challenging the constitutionality of bureaucratic regulations and administrative rulings based on vague laws.

The Supreme Court’s rulings will do more than relieve regulatory burdens. They will require Congress to do some heavy lifting of its own. If legislators can no longer delegate their essential functions, they will have to return to the old-fashioned task of passing laws. They will probably need to approve or reject major regulatory proposals, instead of merely overseeing the agencies, as they do now.

This is a huge fight for big stakes, and it is certain to put the two parties at loggerheads. Democrats will rally against changes proposed by Trump and DoGE, just as they have against the SCOTUS rulings. That’s not just because they are the Opposition Party. It’s because they are the party that built the administrative state. They consider it one of their most important achievements of the past century. They certainly won’t lie down and allow Republicans to reshape it without a bitter fight.

Democrats will have vocal support from the legacy media. The New York Times is already writing about how dreadful Trump’s Schedule F will be. Politico is saying some DoGE plans will actually cost more money. Expect lots more attacks as soon as DoGE floats prospective cuts.

Establishment Republicans are in a more delicate position. They have close ties to the agencies and the large corporations that benefit from many of the regulations. (Corporate lobbyists help shape those rules, which create a favorable terrain for their clients and often prevent the rise of competitors.) The dilemma for these Republicans is that opposing Trump is costly. They could lose their seats if he backs a primary opponent.

DoGE is at the center of these battles, which go well beyond cutting the size and budget of federal agencies. They go to the very heart of how America has been governed for the past hundred years. They are really about how it will be governed for the next hundred — and how rapidly the income of Americans will grow when the regulatory burdens are eased.