Elon Musk says DOGE can 'gut the federal government' with a recent Supreme Court ruling. Some lawyers disagree.

• Elon Musk and Vivek Ramaswamy said a SCOTUS ruling on federal regulations will help them cut spending through DOGE.
• Some legal experts said it could actually restrict some of DOGE's aims.
• That's because, under the new legal framework, it will be more difficult to change interpretations of an existing rule.

The Supreme Court might not help Elon Musk and Vivek Ramaswamy's spending cut goals as much as they might think.

President-elect Donald Trump tapped Musk and Ramaswamy to lead a new Department of Government Efficiency, or DOGE, aimed at reducing government waste. Since then, both have said a recent Supreme Court decision that restricts the ability of federal agencies to enact regulations would empower their plans to reduce head count at those agencies and cut unauthorized government programs.

This summer, the Supreme Court overturned the Chevron doctrine, which was established in 1984 and allowed federal agencies to interpret ambiguously worded laws while writing regulations as long as they did not counter Congress' language. Instead, courts themselves are obligated to resolve those ambiguities, rather than executive-branch agency experts.

Ramaswamy, a former GOP presidential candidate, wrote in a December 1 post on X that overturning Chevron "paves the way for not a slight but a drastic reduction in the scope of the federal regulatory state. It's coming." Musk responded to the post, saying: "We are going to use this ruling to gut the federal government."

Some legal experts said that's likely not the case, telling Business Insider that the Supreme Court's overturning of Chevron could actually constrain DOGE because it takes away an agency's power to interpret rules and make decisions independently.

Gillian Metzger, a constitutional law professor at Columbia Law School, told Business Insider that Musk and Ramaswamy's argument is "somewhat puzzling" because the Chevron decision "is about pulling back on executive and agency power."

"Chevron deference gave an agency room to change its interpretation of a statute, provided the statute was ambiguous, and the agency reasonably offered a permissible interpretation," Metzger said. "Without that precedent, it's going to be harder for them to change interpretations of statutes in ways that justify repealing regulations."

Still, Republican control of Congress and the White House could mean that DOGE's goals have a better chance of being implemented with lawmaker support.

Musk, Ramaswamy, and the Trump transition team did not immediately respond to a request for comment from BI.

Holes in Musk and Ramaswamy's argument

The Supreme Court overturned the Chevron doctrine in June 2024 in a ruling on the case Loper Bright Enterprises v. Raimondo. The case was brought on by a group of fisheries that disagreed with the National Marine Fisheries Service's interpretation of a law.

Nicholas Bagley, an administrative law professor at the University of Michigan, wrote in The Atlantic that following the ruling, "an agency that has already adopted the soundest interpretation of a law can't change its mind."

"If the agency were to try to adopt a new reading of the law—perhaps one that DOGE prefers—and to use that to justify rescinding the rule, the courts would stop the agency," Bagley wrote. "Saying that Loper Bright gives DOGE flexibility is about as sensible as saying that handcuffs help when throwing a baseball."

The Administrative Procedure Act, a federal statute that outlines how agencies must enact and revoke regulations, would also complicate matters. Musk and Ramaswamy wrote in The Wall Street Journal that DOGE would offer Trump a list of regulations they recommend rescinding, and Trump could then "immediately pause the enforcement of those regulations and initiate the process for review and rescission." They wrote that doing so would "liberate" Americans and businesses from complying with regulations Congress never passed.

However, to actually rescind a regulation, the APA requires a lengthy rulemaking process that includes seeking public comment and providing justification for the reasoning to rescind a rule. The Biden administration went through that process to craft its second student-loan forgiveness plan after the Supreme Court struck down the first one. Metzger said that rescinding a rule would require agency workers with expertise in the area to help conduct that analysis, something that would be difficult if DOGE fulfills its aim of cutting the federal workforce.

Cary Coglianese, a law professor at the University of Pennsylvania, said he could see why Musk and Ramaswamy are depending on Chevron's overruling to help them slash regulations. If DOGE begins the process of rescinding existing federal regulations, there is likely to be litigation, and Coglianese said that the two DOGE leaders might be banking on courts looking at a regulation afresh and deciding that "the rule was too adventurous and acting well beyond their statutory authority."

Still, Coglianese said, that won't be easy to do — an agency has to provide extensive justification for implementing a new rule, and Musk and Ramaswamy would then be tasked with proving why the original justifications should be undone.

"There's a wild card about how much courts will be willing to reopen old precedents that were decided on Chevron grounds," Coglianese said. "They're banking on some ability to kind of be able to revisit some old statutory interpretations. It's not clear that the Supreme Court had that in mind when it overruled Chevron."

How Congress can advance DOGE's goals

Recent Supreme Court rulings might not help DOGE achieve its goals, but a Republican trifecta in Congress would. Since many of the changes Musk and Ramaswamy are seeking to make are unlikely to be accomplished by executive power alone, Congress would need to approve legislation to enact those changes.

Already, a bipartisan group of lawmakers is on board with advancing some of DOGE's spending cut proposals. Rep. Jared Moskowitz recently became the first Democratic lawmaker to officially join the DOGE caucus alongside dozens of Republicans, saying in a December 3 statement, "I believe that streamlining government processes and reducing ineffective government spending should not be a partisan issue."

Moskowitz pointed to the Department of Homeland Security as a specific agency for which he would support investigating spending cuts. Rep. Ro Khanna, another Democratic lawmaker, wrote in a December 5 post on X that he's ready to work with DOGE to "slash waste" in the Department of Defense, and Sen. Bernie Sanders recently told BI that Musk "is absolutely right" to call for defense spending cuts.

Data from the Treasury Department shows that the US spent $6.75 trillion in fiscal year 2024, with the highest amounts of spending coming from the Department of Health and Human Services, the Social Security Administration, and the Treasury Department. National defense spending also ranked high on the list, coming in at $874 billion.

With a glimmer of bipartisan support emerging for some of DOGE's goals, spending cuts could be facilitated through legislation. Musk and Ramaswamy met with lawmakers on Capitol Hill on December 5, during which GOP Sen. Joni Ernst presented a proposal to enact existing legislation to cut spending by cracking down on teleworking and getting rid of unused federal office space.

Sen. Marsha Blackburn also posted on X that she will be introducing legislation — the DOGE Act — that "will freeze federal hiring, begin the process to relocate agencies out of the D.C. swamp, and establish a merit-based salary system for the federal workforce."

Both Metzger and Coglianese said DOGE's proposals could happen through legislation, and the assumption that Musk and Ramaswamy can act on spending cuts alone — using Chevron as a backup — will likely face legal hurdles.

"If you just came along and said, 'We've got a new sheriff in town, a new president, and we don't like that rule,' that's not enough," Coglianese said. "You've got to be able to essentially rebut all that prior cases and explain why, in the face of all that you said just a couple of years ago, now, you want to get rid of a rule. That's not easy to do."