Elon Musk and Vivek Ramaswamy, in their roles as advisors to a new “Department of Government Efficiency” that President Trump has proposed, just issued a revolutionary document regarding the federal administrative state. It is a fundamental challenge to the massive shift in power away from the Congress and toward the federal executive agencies that started in the New Deal and has expanded ever since.
This is not the first time a president has tried to constrain the executive branch. In 1981, newly elected President Ronald Reagan empaneled a commission under businessman J. Peter Grace to eliminate unnecessary federal agencies and thousands of their regulations. The Grace Commission admirably fulfilled its mandate; but President Reagan found a formidable adversary in Speaker Tip O’Neill, whose approval he needed to repeal the laws that enabled the executive overreach. So Reagan left the Grace Commission recommendations largely unimplemented.
Now Musk and Ramaswamy are proposing making changes every bit as sweeping as the Grace Commission, by voluntarily giving up the power presidents have taken from Congress. To prevent the next Democratic Administration from reversing what they hope the Trump Administration will be able to accomplish, Musk and Ramaswamy explicitly state they’ll rely on the U.S. Supreme Court to rule that the executive branch should not have taken the power it did in the first place. Power to make national policy will return to the Congress.
The sweeping nature of this change is illustrated by how far the administrative state has gone to make federal policy without Congress, and even in face of clear Congress-passed law contrary to the executive action.
Consider the arrogation of federal policy assumed by Presidents Obama and Biden, such as President Obama’s policy statement allowing dreamers and their parents to stay in America, despite Congress having set a detailed set of steps for adjusting immigration status, all of which were ignored by President Obama’s policy.
Consider President Biden’s decision to forgive the obligation for student-borrowers to repay $1 trillion of student loans. In each of these, and hundreds of other instances, the question is not whether we like or dislike a specific policy the President has adopted on his own. The issue is whether it is Congress or the president’s appointees who get to make the laws in our country.
It is true that Congress can, in some circumstances, delegate its law-making authority. For instance, Congress passed laws to outlaw dangerous drugs, then delegated to the federal Food and Drug Administration (“FDA”) what dosage levels were dangerous. Congress could not, however, delegate to the FDA the right to repeal the drug laws.
Musk and Ramaswamy’s pronouncement makes explicit reference to the U.S. Supreme Court’s recent holding (which was not the Supreme Court’s view during the Grace Commission’s time) that Congress needs to be specific and explicit if it wants to delegate authority to the executive branch on major policy issues.
When Congress is so explicit, a second question then arises, whether Congress can constitutionally contract out its law-making functions. For most of the matters the Department of Government Efficiency will confront, however, this second question won’t arise since the claims that Congress delegated authority rest on statutory language that is either hopelessly vague or inapposite. A good illustration is President Biden’s assertion that his ability to forgive student loans flowed from the post 9/11 authority given to the Department of Education to adjust conditions of student loans for first-responders. (The Supreme Court called foul on that attempt by President Biden.)
President Obama tried to get Congress to pass his policies when the Democrats were in the majority. When the Republicans took over Congress, Obama said he had “a phone and a pen,” and would use those tools instead of trying to convince Congress.
Ramaswamy and Musk have commenced a long-overdue course correction—if you wish to create or alter federal policy, work to change Congress instead of bypassing it.
Tom Campbell is a professor of law and a professor of economics at Chapman University. He served five terms in the US Congress as a Republican; he resigned from the Republican Party when it nominated President Trump in 2016. He is the author of Separation of Powers in Practice, a constitutional law text.
