The DOGE Daze of Regulatory Reform
The new “Department of Government Efficiency” (aka “DOGE”), led by Elon Musk and Vivek Ramaswamy, aims to downsize the federal government and tame the federal bureaucracy. DOGE (which is not actually a government department) is seeking help identifying regulations that should be rescinded or repealed. As detailed in a Wall Street Journal op-ed, they aim to achieve these goals through presidential directives, not legislation.
I am skeptical DOGE can fulfill its ambitious objectives through unilateral executive action, particularly without exquisite attention to relevant administrative law constraints. As I explain in an essay for the new Civitas Outlook (where I am a contributing editor), there are few deregulatory shortcuts. Absent legislative action, reforming and undoing rules is typically a long slog.
From my Civitas Outlook article:
It is a core principle of administrative law that amending or revoking a regulation generally takes the same amount of time and effort that it took to adopt the regulation in the first place. If rules governing the amount of energy a dishwasher may use or requiring specific corporate disclosures went through notice-and-comment rulemaking, rescinding such rules will have to go through the same process, even if the agency believes it should never have adopted the rule in the first place. As the Supreme Court explained in 1983 in its landmark Motor Vehicle Manufacturers Association v. State Farm Mutual Automobile Insurance Co. decision (commonly referred to as State Farm) “the direction in which an agency chooses to move does not alter the standard of judicial review established by law.” In doing so, it expressly rejected the argument that it should be easier to rescind regulations than to impose them in the first place. To the contrary, the Court explained “an agency changing its course by resci
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