DOGE Was Always a Distraction

Vivek Ramaswamy is probably feeling pretty dumb right now. At least we can only hope that he does.

The moment that I heard of the Department of Government Efficiency (DOGE), the new Trump/Elon Musk venture named after a meme, I laughed. This sounded like the exact kind of fodder that the MAGA base loves to gobble up without any understanding of how government works. That sums up 75% of what Trump does — make up nonsense to cause headlines and debate so that he is showered with attention, good or bad. The other 25% of what he does is pure evil, but he uses the 75% to clog news feeds and divert attention. Enter DOGE.

Administrative Law 101

Let’s clarify a few things. First, an executive branch agency doesn’t come into existence based on the president’s declaration. An Executive Order cannot create a department in the sense of what we are familiar with (e.g. Department of Health and Human Services, etc.). That power resides with Congress. An agency is created via a congressional statute, the same process used to pass any law in the House and the Senate. The law that creates a federal agency is known as an “organic statute,” which also outlines the limits of the agency’s regulatory power.

Regulations are rules, and they do not have the power of statutes. In fact, regulations can only exist under the authority of statutes. For example, the Department of Housing and Urban Development Act created HUD, and it also limits what regulations HUD may pass. The reason for this is that although Congress creates these agencies, they fall under the supervision of the President and therefore the Executive Branch. If an administrative agency has regulatory power that is too broad, that essentially becomes legislating, which is Congress’ authority and not the Executive Branch. Respecting the separation of powers means giving agencies narrow jurisdiction (this was also the justification for the Supreme Court overturning Chevron).

Agencies also require appropriations, which put simply is the money needed to run an agency. This is the budget process that is discussed each fiscal year, and the appropriations process is what can put agencies at risk of a government shutdown. If there are no funds obligated, then the agencies cannot function. Since Congress has the power of the purse and not the President, an Executive Order cannot provide appropriations either.

The Name Game

DOGE was always intended to be a power play if you ask me. First, naming it “Department” despite DOGE having none of the authority of a department was a way to make people afraid. I predicted some time ago that Trump would simply rename an existing office in the White House because there was no way that this would become an actual agency. Lo and behold, I was correct. He simply renamed the U.S. Digital Service, an office created by President Barack Obama in 2014 to advance and modernize information technology (IT). So what went from a promise for Musk to head a department that would deregulate and dismantle the government is now a mere office in charge of IT services.

The second power play with DOGE was Musk’s firing list published on Twitter in November 2024. As previously stated, this is moot because he is a glorified IT guy at 1600 Pennsylvania Avenue, not someone in charge of firing anybody. But he tried his best to frighten federal employees, many of whom deleted their social media accounts out of fear of losing their jobs. Fortunately, those employees can rest easy knowing that the only call they may get from Musk is one asking if they turned their work computer off and then back on again.

Finally, Vivek Ramaswamy got the boot from DOGE (and I’m sure there’s an off-color joke somewhere in this about an Indian guy being fired from an IT office). People in the Trump inner circle said that Vivek had “worn out his welcome,” which must sting for the poor guy who thought he could cozy up to white supremacy and gain favor. Instead, he’s left out in the cold, and Musk now has access to agency records that could benefit him if he decides to engage in some illegal government contracting.

A Federal Façade

Because DOGE’s authority is as fake as Musk’s hair plugs, it has already been challenged in court under the Federal Advisory Committee Act (FACA). The IT office appears to be presented as an advisory committee, and as such, it must adhere to all FACA requirements including transparency provisions and establishment of a charter. The lawsuit seeks to enjoin DOGE from meeting unless it satisfies FACA. This means that if the lawsuit succeeds, DOGE can only function by having meetings that are open to public inspection, with accessible virtual options available. My guess is Musk won’t like his work being open to public scrutiny, but if he wants to hold himself out as a public servant, then he will have to deal with the burden of being a public servant.