Elon Musk speaks with U.S. President-elect Donald Trump at a viewing of the launch of the sixth test flight of the SpaceX Starship rocket in Brownsville, Texas, U.S., November 19, 2024 Brandon Bell/Pool via REUTERS
(Reuters) - Elon Musk and Vivek Ramaswamy, who were tapped by Republican President-elect Donald Trump to lead a new Department of Government Efficiency, have revealed plans to wipe out scores of federal regulations crafted by what they say is an anti-democratic, unaccountable bureaucracy.
Getting rid of federal agency rules can be a monumental task, according to experts. Here is a look at the hurdles and legal challenges Trump could face if he follows through on the panel's recommendations.
WHAT ARE DOGE'S PLANS?
In a Wall Street Journal opinion piece published on Nov. 20, Musk and Ramaswamy said they and "a lean team of small-government crusaders" embedded at federal agencies will review regulations to identify ones they deem invalid. The review will be guided by a pair of recent U.S. Supreme Court decisions that placed significant limits on agencies' rulemaking powers, they said.
DOGE will present its findings to Trump, who could issue executive orders immediately pausing enforcement of specific rules and directing agencies to repeal them, according to the op-ed. Federal regulations impact every facet of American society, from education, healthcare and immigration to environmental pollution, drug safety, tax policy and labor rights.
Musk and Ramaswamy said DOGE will also recommend mass layoffs across federal agencies and identify billions of dollars in government spending that is invalid because it was not authorized by Congress. They said they are aiming to complete the panel's work by July 4, 2026, the 250th anniversary of the country's founding.
CAN THE PRESIDENT REPEAL REGULATIONS?
Trump cannot rescind rules on his own and would instead have to direct agencies to do so, which in most cases would not be legally binding, according to legal experts. If an agency opted to repeal a rule, the process would be governed by a complex law, the Administrative Procedure Act, that lays out the procedures for doing so.
Agencies often repeal rules adopted by previous administrations, but the process is lengthy, complicated, and legally fraught, and many agencies likely lack the resources needed to repeal a large number of rules at once.
To rescind a rule, the APA requires agencies to release a detailed proposal, including legal justifications and potential costs, and accept and respond to public comments. That can take months or longer.
Agency rules can also be wiped out by Congress with the president's approval, but only within a short period after they are enacted, so that process cannot be used to eliminate older rules.
WHAT CAN TRUMP DO TO BLOCK RULES FROM BEING ENFORCED?
There are federal laws authorizing the president to block certain agency rules, such as some immigration regulations. Otherwise, any call by Trump to stop enforcing a rule is more of a recommendation, though one that a loyal appointee may be likely to comply with.
Agencies and their politically appointed heads have some latitude in setting enforcement priorities. But they are legally bound to enforce the law in many cases, and cannot stop enforcing a regulation as a way around the cumbersome process of repealing it, experts said.
And, any effort by Trump and his appointees to cease enforcement of rules by agencies will not prevent individuals from filing lawsuits alleging violations of them. Many agency regulations are issued pursuant to laws that allow for private lawsuits, such as environmental and wage laws.
WILL AGENCIES BE SUED FOR REPEALING RULES?
Moves by Trump and his appointees to eliminate existing rules will be met with legal challenges, as many progressive groups and Democratic officials have made clear. Lawsuits seeking to block repeals or reinstate rules that have been rescinded have become common, and typically claim that agencies failed to adequately justify eliminating them or did not respond to concerns raised in public comments.
The first Trump administration was rebuked on several occasions for not following those procedures in eliminating Obama-era policies.
If Trump follows through on DOGE's recommendations, it would likely trigger a flood of lawsuits across the country, yielding mixed results.
Trump appointed 234 judges in his first term, including dozens to appeals courts, and many have shown deep skepticism of the administrative powers long wielded by federal agencies. Opponents of Trump's policies could turn to friendlier courts with more Democratic appointees, mirroring a trend of conservative and business groups bringing challenges to the Biden administration in certain courts in Texas.
HOW WILL THE SUPREME COURT DECISIONS GUIDE DOGE'S WORK?
In a 2022 decision, the Supreme Court ruled that agencies cannot address "major questions" with broad economic or societal impact without explicit permission from Congress. And in a landmark June ruling, the court overturned its own precedent and said courts no longer were required to defer to an agency's interpretation of an ambiguous law.
Musk and Ramaswamy said their review will focus on regulations that are invalid in light of those decisions, which were seen as major victories in a campaign by conservative groups to rein in the "administrative state." But the Supreme Court's holdings in those cases were nuanced, and it will take years for courts to sort out how they apply to individual regulations, lawyers and other experts said.
Many regulations are explicitly authorized by Congress or have been upheld by courts on their merits rather than out of deference, making it more difficult to justify repealing them under the recent Supreme Court rulings.
(Reporting by Daniel Wiessner in Albany, New York and Brendan Pierson in New York, Editing by Alexia Garamfalvi and Rosalba O'Brien)
