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Gene Dodaro’s term as Comptroller General of the United States ends in December 2025, providing Congress an opportunity to update the appointment authority for this important legislative branch official. The 1921 law that created the Government Accountability Office (then General Accounting Office) (GAO) made its head, the Comptroller General, a presidential appointee. This was necessary at that time since GAO was originally assigned mainly “executive” functions. The GAO of today, however, bears little resemblance to the 1921 version. Executive functions are no longer part of its mission. The contemporary GAO serves exclusively as a legislative branch agency supporting Congress in the exercise of its constitutional responsibilities.

In view of GAO’s evolution, there is no longer any reason for the President to appoint the Comptroller General and every reason for Congress to choose the head of this key congressional agency. Continued presidential appointment of the Comptroller General is both anachronistic and incongruous. Undoubtedly, Congress would make the Comptroller General a congressional appointee if it were creating GAO today.

Congress should now take control of the appointment of the head of its own “watchdog” agency as it has done with other legislative branch agencies such as the Congressional Budget Office Director and, recently, the Architect of the Capitol. The need for Congress to appoint the Comptroller General transcends political considerations such as which party controls Congress or who occupies the White House. What’s at stake is Congress’s fundamental institutional interests as a coequal branch of  government.

Background

Under 31 U.S.C. 703, the Comptroller General is currently appointed by the President with the advice and consent of the Senate for a non-renewable, 15-year term.^[1]Section 703 contains similar provisions that govern the appointment of the Deputy Comptroller General, although a Deputy has never been appointed under those provisions. Once appointed, a Comptroller General can only be removed from office by impeachment and conviction or by joint resolution of Congress based on limited grounds.

When a vacancy in the office arises, section 703 provides for a “commission” of specified members of Congress to recommend at least three potential nominees to the President. The commission consists of

• • the Speaker of the House,
  • the President pro tempore of the Senate,
  • the majority and minority leaders of the House and Senate, and
  • the chairs and ranking members of the House and Senate oversight committees.

The law provides that the President can request additional names, but it does not require the President to choose a nominee from among individuals recommended by the commission.

The Presidential Appointment No Longer Makes Sense

The Budget and Accounting Act, 1921, which created the office of Comptroller General and the GAO, transferred to them functions that had previously been performed by the Treasury Department. Since these were primarily “executive” functions, the 1921 Act designated the Comptroller General a presidential appointee. Apart from Senate confirmation, the Act made no provision for congressional input into the appointment.

Through the years, GAO’s functions evolved from mainly conducting financial audits of executive agency accounts and making legally binding determinations to performing broad evaluations of federal programs and activities to assist Congress in its legislative and oversight work. Recognizing this evolution, the current appointment process was enacted in 1980^[2]Pub. L. No. 96-226, 94 Stat. 311 (1980). to give Congress an enhanced (albeit only secondary) role based on “the special interest of both Houses in the choice of an individual whose primary function is to provide assistance to Congress.”^[3]S. Rep. No. 96-570 (1980), p. 10.

The 1980 law was the result of a compromise. Predecessor versions of this legislation provided for Congress to appoint the Comptroller General.^[4]A Senate sponsor described one such bill as “a congressional declaration of independence from the White House.” 121 Cong. Rec. 25608 (1975) (remarks of Senator Metcalf). However, the Justice Department objected that a congressional appointment would preclude GAO from performing executive functions. The enacted version thus retained the presidential appointment and settled for enhanced congressional input in an attempt to preserve GAO’s constitutional ability to carry out the residual executive functions it still performed at that time.

This compromise proved to be unavailing. In Bowsher v. Synar, 478 U.S. 714 (1986), the Supreme Court concluded that, notwithstanding the presidential appointment, the Comptroller General was a legislative branch official answerable to and removable only by Congress and GAO was a legislative branch agency. Therefore, the Court held, they could not constitutionally perform any executive functions. In view of this decision, there was no longer any legal reason for the Comptroller General to remain a presidential appointee. Subsequently, various executive functions were transferred from GAO back to the executive branch.^[5] See Pub. L. No. 104-53, 109 Stat. 514, 535 (1995), and Pub. L. No. 104-316, 110 Stat. 3826, 3845-46 (1996).

GAO’s role as an arm of Congress has become even more pronounced since then. GAO’s 2024 Performance and Accountability Report states that the agency “exists to support the Congress in meeting its constitutional responsibilities” and that the “vast majority” of its work is conducted in response to congressional mandates or requests. Specifically, the report notes that this describes 96 percent of its evaluations. GAO’s remaining work likewise serves Congress. For example, its self-initiated, biennial “high-risk list” provides a roadmap for congressional oversight and reform legislation. Another example is GAO’s bid protest function, which one court observed “provides an important congressional oversight mechanism” regarding federal agency procurement practices.^[6]Lear Siegler, Energy Products Division v. Lehman, 842 F.2d 1102 (9^th Cir. 1988).

No Other Exclusively Legislative Branch Agency Has a Presidential Appointee

GAO is the only strictly legislative branch agency that is still headed by a presidential appointee. Presidential appointees lead two other legislative branch agencies: the Library of Congress and the Government Publishing Office (formerly Government Printing Office).^[7] Congressional Research Service, Legislative Branch Agency Appointments: History, Processes, and Recent Actions (2024). Unlike GAO, however, both these agencies continue to perform some executive functions. The Library of Congress administers federal copyright laws, and the Government Publishing Office provides printing and publishing services to executive branch agencies. No other legislative branch agency has a presidential appointee. Notably, the Director of the Congressional Budget Office has been a congressional appointee since the creation of that agency in 1974.

The appointment process for the Architect of the Capitol and its evolution is particularly instructive here. Prior to 1990, the Architect was appointed by the President with no formal congressional involvement. The Legislative Branch Appropriations Act, 1990 retained presidential appointment of the Architect but enacted a process modeled on the Comptroller General’s whereby a congressional commission recommended potential nominees to the President.^[8] Pub. L. No. 101-163, 103 Stat. 1041, 1068 (1989).  In 2023, Congress changed the law to eliminate the presidential appointment and instead provide for appointment of the Architect by majority vote of the congressional commission.^[9]2 U.S.C. 1801a.

Congress Should Control the Appointment of Its Own “Watchdog”

Retaining the presidential appointment of the Comptroller General is not only unnecessary and anomalous but also undercuts Congress’s institutional interests. The Comptroller General and GAO answer to Congress alone. While GAO’s work benefits the executive branch and the public, the agency exists to serve Congress. Therefore, Congress alone should decide who heads it. The 1980 law that enacted the current appointment process was at best a half measure toward this goal. As noted above, it retained the presidential appointment in a compromise that did not pan out and based on a premise that is no longer relevant.

While the law does provide for congressional recommendations, it leaves the final choice to the President. The President can choose from among these recommendations or disregard them and select someone else. Placing the Comptroller General appointment in congressional hands would guarantee Congress its first choice for Comptroller General. In addition to vindicating Congress’s institutional interests, keeping the selection within Congress would simplify and expedite the appointment process.

GAO is the only source of nonpartisan, wholly independent oversight of the executive branch within the federal government. To be of maximum effectiveness to Congress as well as the public, it must  operate without fear or favor, reviewing executive branch programs and activities objectively and producing unvarnished, fact-based analyses. In these politically polarized times, a bipartisan congressional commission is best suited to select an individual who possesses the qualifications and credibility to maintain GAO’s high standards.

A Modest Statutory Fix

The update can be accomplished simply by amending 31 U.S.C. 703 to provide for appointment of the Comptroller General (and Deputy) by majority vote of the congressional commission it already establishes.^[10]Congress should also consider appointing the Librarian of Congress, particularly in view of the congressional support functions performed by the Library’s Congressional Research Service. This is a … Continue reading

 

 

 

The Supreme Court heard oral argument last week on the validity of so-called “nationwide” injunctions in the context of President Trump’s Birthright Citizenship Executive Order. Strong conceptual and practical arguments can be made against nationwide injunctions. Such arguments might be compelling if dealing with a presidential administration that respected the rule of law. However, it’s hard to imagine a worse test case challenging this practice than Trump and his Birthright Citizenship EO.

The Trump EO is, as one district judge (a Reagan appointee, no less) observed, blatantly unconstitutional. It contradicts the plain language and original history of the Fourteenth Amendment as well as longstanding Supreme Court precedent. Evidently, it’s the brainchild of John Eastman, also known for advocating that Vice President Pence could reject the 2020 election results. All lower federal courts to rule on the EO so far found it unconstitutional. Three courts issued nationwide injunctions against its enforcement. If ever an action justified a nationwide injunction on the merits, the Birthright Citizenship EO is it.

But there is an additional key consideration here. The strategy employed by the Trump Administration regarding the Birthright Citizenship EO illustrates the bad faith and legal gamesmanship characteristic of many of its actions. Trump’s lawyers did not ask the Supreme Court to overturn the three lower court decisions holding the EO unconstitutional as applied to the individual plaintiffs in those cases. Rather, they only contested the nationwide injunctions the three judges issued. While this approach may seem odd at first blush, the rationale underlying it became clear during the oral argument, particularly under questioning by Justices Kagan and Barrett, and is highlighted here.

Trump’s attorneys must recognize there is little chance that the Supreme Court will uphold the EO’s risible attempt to redefine birthright citizenship if it gets a case on its merits. No self-respecting textualist/originalist jurist could support it. Thus, one prong of the strategy is to keep such a case away from the Court. The other prong is to force individual plaintiffs to contest the EO over and over in the 94 federal judicial districts.

As Justice Kagan pointed out during the oral argument, this cynical strategy could work if the nationwide injunctions are lifted. A loss in an individual district leaves the EO in place in the remaining districts until the next challenge comes along. If the plaintiffs challenging the EO continue to be successful in these individual cases, there is no losing plaintiff to appeal to a higher court and the EO retains life. The Trump Administration might try its luck at taking a loss to a circuit court of appeals, but even if it lost again at that level, the EO could still operate in other circuits. (In response to questions by Justice Barrett, Trump’s solicitor general refused to commit that the Administration would honor an adverse court of appeals precedent.)

This approach could persist for some time, creating chaos and distress for those whose citizenship is at risk under the EO and who don’t have the wherewithal to challenge it. Children born in one state or federal judicial district could be treated as U.S. citizens while similarly situated children born in a different jurisdiction would not.        

This is a prime example of what happens when Trump’s impulses are free from internal constraints. Apparently, Trump’s craven and ethically challenged lawyers can’t bring themselves to tell him that his Birthright Citizenship EO is clearly unconstitutional. They seem willing to let this drag on until an overwhelming number of federal districts or circuits rule against the EO. While the justices may (rightly) have qualms about nationwide injunctions, hopefully they will find some way to prevent Trump and his enablers from continuing this travesty.      

Donald Trump’s dizzying assault on democratic norms and the rule of law strains many institutions in and outside of government. One major casualty is the Department of Justice (DOJ), which has suffered a severe loss of credibility. Attorney General Pam Bondi acts more like a Trump cheerleader than the Nation’s chief law enforcement officer. She and other DOJ leaders such as Emil Bove place unquestioning subservience to Trump above allegiance to their constitutional oaths and their ethical obligations as officers of the court to treat the judiciary with honesty and respect.

Evidence of DOJ’s decline abounds.^[1]See here, here, and here. One  striking example is the attempted use of the Alien Enemies Act (AEA) to summarily deport hundreds of illegal migrants to the notorious El Salvador CECOT prison. The AEA deportation operation has been an exercise in bad faith from the outset. It features misuse of a statute that clearly does not apply, disingenuous and downright deceitful legal arguments, stonewalling judges, disciplining DOJ attorneys for excess candor in court, and evading and grossly distorting judicial decisions—including those of the Supreme Court.

The obvious goal of the operation was to deport large numbers of suspected gang members with as little investigative effort, due process, and judicial intervention as possible. To do this, the Trump Administration dusted off the AEA, a 1798 statute that had been used sparingly, most recently during World War II. The AEA grants the president broad power to deport non-resident citizens of an enemy nation that is engaged in declared war or any invasion or predatory incursion against the United States.^[2]See here for background on the AEA.

The deportation operation was developed stealthily and initiated with lightning speed in a way that Justice Sotomayor later observed “can be understood only as covert preparation to skirt both the requirements of the Act and the Constitution’s guarantee of due process.” On March 14, President Trump signed a proclamation invoking the AEA with regard to the Venezuelan gang Tren de Aragua. On the same day, Attorney General Bondi issued a memo to law enforcement officers asserting that Trump’s proclamation authorized the seizure and summary deportation of suspected gang members without a warrant, due process, or judicial review. Deportations commenced the next day, March 15. They included hundreds of Venezuelans as well as illegal migrants from other countries.

The hasty, seemingly haphazard execution of the operation along with the total absence of due process created many problems. From what little is known, there is scant evidence that some (perhaps many) deportees were in fact gang members. Apparently, the evidence of gang membership often consisted of nothing more than tattoos and clothing. Clearly, at least some individuals were wrongly deported.

The most infamous case is Kilmar Abrego Garcia, who is neither Venezuelan nor an alleged Tren de Aragua gang member. (He’s said to be a member of MS-13.) Abrego Garcia was sent to CECOT despite an administrative order prohibiting his deportation to El Salvador. A DOJ attorney conceded  that Abrego Garcia’s removal was a mistake—an act of candor for which he was later fired. Four lower court federal judges and all nine Supreme Court justices concluded unanimously that Abrego Garcia had been wrongly deported and should be returned.

The Trump Administration responded with intransigence and deception. They claimed to be unable to retrieve Abrego Gracia from Salvadoran custody. Trump and Salvadoran President Bukele staged a bit of Kabuki theater at the White House in which Bukele insisted he would not “smuggle” Abrego Garcia back to the United States as Trump looked on approvingly. 

DOJ argued, utterly implausibly, that court orders to “facilitate” Abrego Garcia’s return did not require the U.S. Government even to ask El Salvador to give him back. Attorney General Bondi stated sarcastically that the Government’s only obligation was to provide him a plane ride back to the United States if he somehow extricated himself from Salvadoran custody. Trump later exposed this deceit by acknowledging several times that he could obtain Abrego Garcia’s return by simply asking but that his lawyers “don’t want to do this.”

DOJ continues to prevaricate and stonewall. However, it’s hard to believe the courts will condone this charade that makes a mockery of their decisions. In fact, the entire house of cards that is the AEA deportation scheme will likely collapse.

Ultimately, the courts are almost sure to rule AEA inapplicable by its plain terms. The United States is not at war with Venezuela; the many illegal activities of Tren de Aragua, reprehensible as they are, do not resemble any kind of invasion of the United States; and there’s no evidence that Tren de Aragua is a government actor. On the contrary, U.S. intelligence agencies found no connection between the gang and the Venezuelan government.^[3]See here and here. So far, lower federal courts have consistently rejected AEA’s  application as have most legal experts even on the right.

A preliminary Supreme Court decision already undermines the operation’s key goal of avoiding due process and judicial review. The Court did not reach the issue of whether AEA applied, and it vacated a lower court order against the deportation of Venezuelans on procedural grounds. Importantly, however, the justices concluded unanimously that the deportees were entitled to due process and judicial review on the applicability of the AEA and whether they were in fact covered by Trump’s proclamation invoking it. Specifically, the Court held:

“AEA detainees must receive notice after the date of this order that they are subject to removal under the Act. The notice must be afforded within a reasonable time and in such a manner as will allow them to actually seek habeas relief in the proper venue before such removal occurs.”   

This clearly indicates that no further AEA deportations can occur without due process and the opportunity for judicial review.^[4]Unsurprisingly, DOJ takes an extremely narrow view of what due process is required under this decision. The courts will likely insist on more. Moreover, since the hundreds of initial deportees were denied due process and judicial review prior to their removal, the Supreme Court’s decision seems to mean that their deportations were illegal and, like Abrego Garcia, they should be returned to the United States. This will certainly be true if the courts ultimately rule the AEA inapplicable.^[5]It appears that the Government has the legal right to regain custody of the Venezuelan deportees and return them to the United States. Reportedly, the United States and El Salvador entered into an … Continue reading

Nevertheless, the Trump Administration and DOJ remain defiant. In addition to their continuing gamesmanship with the courts, they are waging a public relations campaign demonizing Abrego Garcia and other deportees along with anyone who supports their return. Of course, whether the deportees are good or bad people is wholly irrelevant. They are entitled to due process as is a person accused of the most heinous crimes. If the Trump Administration can violate their rights with impunity, they can potentially do the same to anyone.

The attacks on judges are reprehensible. Trump described a judge who ruled against him as a “radical left lunatic” and called for his impeachment. Shamefully, Attorney General Bondi joined in this demagoguery, accusing the same judge of “support[ing] Tren de Aragua terrorists over the safety of Americans.”

The end of the AEA operation may come sooner rather than later. Judges are losing patience with DOJ’s mendacious tactics. On April 17, Judge Harvey Wilkinson, a highly respected conservative, wrote a scathing opinion in the Abrego Garcia case deriding DOJ’s legal arguments as “shocking not only to judges, but to the intuitive sense of liberty that Americans far removed from courthouses still hold dear.”

Two days later, the Supreme Court intervened in another AEA case and issued an order by a 7-2 vote barring the deportation of certain detainees “until further order of this Court.” This unusual action is widely seen as a signal that the Court has finally had enough of the Trump Administration’s disingenuous tactics.^[6]See here, here, here, and here for background and analysis. One pundit observed that apparently Justices Alito and Thomas, the two dissenters, “are now the only members of the Court who are still willing to trust the Trump administration to faithfully abide by court orders in an [AEA] case.”  

The AEA operation is also losing the PR battle. By wide margins, the public approves Trump’s efforts to stem illegal immigration and deport illegal migrants who are convicted criminals or otherwise shown to be dangerous. However, polls indicate that most Americans disapprove the AEA operation’s KGB-like tactics of disappearing individuals without due process or judicial review. Also, a large bipartisan majority of the public opposes violation of judicial decisions. Ninety-five percent of Democrats and 82 percent of Republicans say the Trump Administration must abide by decisions of the Supreme Court.

The demise of the AEA deportation operation would vindicate  the rule of law and, hopefully, produce a useful course correction in immigration enforcement. Immigration authorities should prioritize arresting and deporting truly dangerous illegals and conduct the investigative work necessary to ensure that the people they apprehend actually fit that description. They have many tools available to do this and, with the Trump Administration’s control of Congress, the means to obtain any necessary additional resources.

The most lasting damage from all of this may be DOJ’s loss of stature in the eyes of the courts if it continues to engage in contortions like these in its efforts to defend Trump’s often indefensible impulses.   

 

 

 

 

 

With congressional Republicans firmly in Trump’s pocket and an administration stocked with toadies, the federal judiciary stands as the only constraint on his many legally dubious actions. So far, the lower courts have met the challenge as judges across the ideological spectrum frequently rule against his excesses.

Whether the Supreme Court is up to the task remains to be seen. In several preliminary rulings, the Court overturned lower court orders adverse to Trump on technical grounds. While each individual ruling may be defensible, some pundits (but not all) suggest that, taken together, they show a pattern of reluctance by a majority of justices to confront Trump. 

The outrageous deportation of Kilmar Abrego Garcia to El Salvador could be the first direct test of the Court’s resolve. The Supreme Court’s April 10 preliminary ruling in his case is widely viewed as a win for Abrego Garcia; however, the end game remains very much in doubt. The justices agreed with lower courts that Abrego Garcia should be brought back to the United States but were less than supportive of the judiciary ordering that he must be returned.

The Court’s apparently unanimous per curium opinion acknowledged that Abrego Garcia’s deportation was illegal since it violated an immigration agency order prohibiting sending him to El Salvador, and the opinion confirmed that he had wrongly been denied due process.^[1]The Government conceded both points, admitting that his deportation resulted from what it euphemistically called an “administrative error.” It also affirmed a district judge’s order that the Government pursue getting him back to the United States.

From there the opinion veered into ambiguity. While concluding that the district judge appropriately ordered the Government to “facilitate” Abrego Garcia’s return, it seemingly balked at the notion that the judge could go so far as to require the Government to “effectuate” his return, i.e., make it happen. The Court called on the judge to “clarify” that part of her order “with due regard for the deference owed to the Executive Branch in the conduct of foreign affairs.” 

The opinion also seemed to constrain how much information the district court could demand concerning efforts to bring Abrego Garcia back. It stated that the Government should be prepared to “share what it can” concerning steps to obtain his return.

The case now comes down to the sole question of whether the courts can make the Government return him if it persists in resisting. Specifically, what happens if it continues to insist, however implausibly, that it can’t force the Salvadoran government to give him back or that his return is somehow precluded by privileged foreign policy considerations that it can’t “share”?  On its face, the Court’s opinion seems to leave the door open to these assertions.

It will be a sad day if the Supreme Court ultimately accedes to this obvious subterfuge and condones the gross miscarriage of justice that defines this case.

From the outset, it featured patently illegal, bad faith conduct by Trump Administration officials. Abrego Garcia was one of over 200 alleged “terrorist” gang members surreptitiously seized without warrant, removed from the United States, and transported to a notorious prison in El Salvador with no due process. This was supposedly based on the Alien Enemies Act, a law that appears inapplicable by its plain terms. It is also far from clear that some deportees, including Abrego Garcia, were in fact gang members.^[2]From the sketchy information available, there appears to be little if any credible evidence of gang membership regarding Abrego Garcia. And, notably, he is alleged to be a member of MS-13, not the … Continue reading

Undoubtedly, the deportations were conducted hurriedly and secretively at least in part to avoid prior judicial review. Even after the fact, government officials have impeded judicial review at every turn. They defied one federal judge who ordered the deportees’ return while some flights were still in the air and later stonewalled the judge to the point that he was considering holding them in contempt.^[3]The Supreme Court ended this case by ruling that the judge lacked jurisdiction.

Justice Department leaders spearheaded a similar effort against the district judge in the Abrego Garcia case, going so far as to fire  one of their own attorneys for being too candid with the judge and not sufficiently vigorous in stonewalling her. (Shamefully, they appear not only indifferent to their own ethical obligations as officers of the court but determined to force subordinate attorneys to compromise their ethical obligations as well.)   

The Government’s assertion that it can’t return Abrego Garcia to the United States is utterly disingenuous if not an outright lie. El Salvador is essentially a custodial agent for the United States under an agreement in which the United States pays the Salvadoran government $6 million to hold the deportees “for one (1) year, pending the United States’ decision on [their] long term disposition.” (Emphasis supplied)^[4]See the trial judge’s opinion at page 6.

There is no reason to believe the Salvadorans would (or could, under the agreement) refuse a request to return Abrego Garcia to U.S. custody for transport back to the United States. Moreover, he is not alleged to have committed any crime in El Salvador so the Salvadorans have no reason of their own to detain him. Even Trump said that he could get Abrego Garcia back, and would do so if the Supreme Court told him to, before he was apparently advised to walk back that statement.

All three levels of the federal judiciary have ruled unanimously that Abrego Garcia’s deportation was unlawful and that he should be returned to the United States. One might think the Trump Administration would get the message and finally do the right thing. (The Supreme Court was surely hoping they would too.) Instead, clearly emboldened by the wiggle room in the Court’s opinion, it has become even more recalcitrant.

The Justice Department’s latest filing takes the absurd position that its obligation to “facilitate” Abrego Garcia’s return means nothing more than to remove any “domestic barriers” to his return. Under this ridiculous interpretation, the Trump Administration need not even ask the Salvadorans to turn him over to them.

Perhaps this latest act of flouting the law and disrespecting the judiciary—now including the Supreme Court by grossly distorting its opinion—will be the final straw. It’s hard to imagine why or even how the Supreme Court would still give any credence to the Trump Administration’s transparently false assertions. Indeed, considering its conduct in this and other cases, it’s hard to imagine a president or a Justice Department less entitled to the presumption of regularity and good faith usually accorded to the executive branch. 

If the Trump Administration persists and forces the Supreme Court to take another shot at the case, the Court should definitively put an end to this lawless, unconscionable farce.

 

On April 2, in his latest and potentially most consequential act of hubris, Donald Trump announced a blizzard of so-called “Liberation Day” tariffs on most countries—and then some. This triggered financial chaos in the United States and throughout the world. The U.S. stock market fell into “correction” territory and there were widespread expressions of concern domestically and internationally.

Trump’s tariffs have been panned by economists and others across the ideological spectrum.^[1]See here for a summary of criticisms from the right. Their stated goals are widely viewed as implausible and internally inconsistent. The supporting facts are dubious and rife with errors. Tariff targets include barren islands populated mainly by penguins. There are contradictions over whether the tariffs are firm or simply a negotiating tactic. Even apart from their negative economic impacts, the tariffs are yet another blow to our standing in the world. Whatever may be said in support of the tariffs, the issues and potential effects are surely much too complex to be left to the whim of one individual.

The tariffs and their rollout have all the hallmarks of a typical Trump flight of fancy that his bumbling, unquestioning staff attempted to execute as best they could understand them and most congressional Republicans were afraid to criticize. All in all, it would have been more fitting to announce the tariffs on April 1.

How is Trump, or any other president, able to take such sweeping, unilateral action with such profound impact on foreign commerce and the domestic economy? There’s nothing in the Constitution granting the executive branch this authority. On the contrary, the Commerce Clause (Art. I, section 8) explicitly grants Congress, not the president, the power to “collect Taxes, Duties, Imposts and Excises (Clause 1) and to “regulate Commerce with Foreign Nations” (Clause 3).

This is yet another striking example of how Congress has ceded its constitutional authority to the executive branch with few constraints on its exercise. Congress enacted statutes over the years delegating to the president authority to impose tariffs under various circumstances. The circumstances are usually described in general terms, often referencing loosely defined emergency conditions. The courts have consistently upheld the delegations.^[2]For detailed background, see here and here.

It’s possible that Trump’s assertion of a qualifying “emergency” to support his massive tariffs here may be too far-fetched for the courts to accept.^[3]See here and here. In any event, there is a more fundamental point beyond the issues related to these tariffs.

Congress may get away with abdicating its constitutional authority over tariffs and so many other subjects to presidents who act with at least a modicum of responsibly and good faith. Clearly, that’s is not the case with Trump. His only motivation is self-gratification, he operates with no regard for laws or democratic norms, and many of his initiatives are hoaxes.^[4]For example, his “Department of Government Efficiency,” fronted by Elon Musk, is not a serious effort to reduce fraud and waste by any objective definition or make a significant dent in federal … Continue reading

Trump’s many abuses highlight the urgent need for Congress to reclaim its constitutional role and responsibilities. Of course, this isn’t likely to happen with the current majorities composed largely of Trump sycophants. Hopefully, a future Congress will awaken from hibernation and find some remnants of democracy left when it emerges.

In the not-too-distant past, the federal government consisted of three reasonably functional branches. Each conducted its business in accordance with established norms and was composed of individuals who, for the most part, respected the rule of law and took seriously their oath of office. We seem to have reached the point, at least for now, when only one branch still functions as intended.

The legislative branch is in near-total meltdown. Congress, supposedly the primary source of federal policymaking, has abdicated most of its legislative authority to the executive branch and is barely able to accomplish its most basic task of appropriating funds to keep the government open. It has all but abandoned oversight other than political grandstanding. Both the House and Senate have devolved into hyper-partisan, polarized bodies whose members prioritize political survival over public service.

The executive branch is careening off the rails under President Trump, who clearly has no respect for democratic norms or the rule of law. Indeed, he delights in flaunting his contempt for our democratic institutions. He stocked his second term administration with yes-people whose only allegiance is to him. In just a few months, Trump and his surrogates (most notably Elon Musk) and subordinates have taken a wrecking ball to the federal government. Their actions create widespread chaos within and outside of government. Many raise serious legal issues.

Trump has no guardrails within the executive branch. It’s obvious that Congress won’t check his power. The Republican majorities in both houses of Congress apparently view their principal role as serving Trump rather than operating as an independent, co-equal branch of government. Democrats are powerless in Congress and too consumed by internal conflict to even produce coherent opposition messaging.

This leaves the judicial branch as the only serious constraint on Trump’s excesses. How effectively the courts counter him when he oversteps his authority will be a key test for our democracy.

Unsurprisingly, Trump’s blitzkrieg of legally controversial actions has already generated well over 100 lawsuits and counting.^[1]See here, here, and here. While most cases are in their early stages, there’s no indication so far that the courts are reluctant to rule against Trump. Indeed, the initial results provide two truly remarkable takeaways: Trump is on the losing end of over 80 percent of the preliminary rulings, and the adverse rulings are coming in almost equal proportion from judges across the ideological spectrum—84% liberal, 86% centrist, and 82% conservative. 

Still, many on the left fear–and many on the MAGA right hope–that once cases reach the Supreme Court, its 6-3 majority of conservative Republican appointees will fall into line behind Trump. The Trump Administration apparently shares this hope since it has staked out many very aggressive legal positions.

There is no objective reason to think that Supreme Court justices are biased toward Trump or that they would be susceptible to the intimidation and extortion he employs so successfully in so many contexts. The conservative majority is ideologically disposed toward a broad view of presidential authority.^[2]This probably explains their highly questionable decision last year on presidential immunity from criminal prosecution. They may therefore be receptive to several cases challenging statutory restraints on the president’s authority to remove certain executive branch officials based on the so-called “unitary executive theory.” Trump’s challenges to the controversial practice of nationwide injunctions may also resonate with the Court.

Apart from these possibilities, however, it’s doubtful that Trump will fare better at the Supreme Court than he has at lower levels. The most obvious reason is that many of his challenged actions are clearly illegal. His executive order attempting to redefine birthright citizenship is patently unconstitutional. It’s hard to imagine any self-respecting textualist/originalist justice upholding it. Indeed, there’s no good reason for the Court to take this case for review on the merits.^[3]Since the lower courts have uniformly ruled against Trump, there is no conflict to resolve. One possible complicating factor is that the Trump Administration is attempting to use this case as a … Continue reading Trump’s invocation of the Alien Enemies Act to deport alleged members of the Venezuelan gang Tren de Aragua with no due process looks like another loser for him if it reaches the Supreme Court on the merits. The Act seems inapplicable on its face.     

If the courts function as they should, how will Trump respond?

Trump and his minions are in full demagogue mode in the face of preliminary adverse court decisions. Trump ranted that the judge who initially ruled against him in the Tren de Aragua case was a “Radical Left Lunatic” who, along with other judges ruling against him, should be impeached.^[4]This drew a rebuke from Chief Justice Roberts. Musk made political donations to House members who echoed this nonsense and introduced impeachment resolutions. Attorney General Bondi accused the district judge of “support[ing] Tren de Aragua terrorists over the safety of Americans.”

While it’s easy to grow numb to Trump’s constant outrages, it’s still shocking that a president of the United States and an attorney general could engage in such absurd and disgusting behavior. It’s also distressing, if not surprising, that no prominent congressional Republican had the courage or integrity to condemn the ridiculous impeachment calls. Worse yet, House Speaker Johnson made veiled threats of his own against the judges.   

In addition to the extreme rhetoric, the Trump Administration is clearly playing fast and loose with the courts by stonewalling them and otherwise trying to keep them at bay. They may have violated court orders in the process. So far, however, they have stopped short of avowed defiance. Trump himself insists that he will not defy the courts.

It remains to be seen whether this changes when final judicial decisions go against Trump, as seems inevitable. However, openly defying the courts may be a bridge too far even for Trump. Trump is a con man and a bully; he operates by bluffs and intimidation, staking out extreme positions and pushing them as far as he can. But like any bully, he backs off in the face of stiff opposition.

There are reasons to believe he would encounter such resistance here. It has been accepted for centuries that, as Chief Justice John Marshall famously observed in Marbury v. Madison: “It is emphatically the province and duty of the Judicial Department to say what the law is.” Even prominent voices on the right reject the notion that Trump could disobey the courts.^[5]See here, here, and here. There would likely be a broad, bipartisan condemnation of defiance of the courts from academics, pundits, and most others outside MAGA world.

Furthermore, public opinion across party lines strongly opposes defiance of the courts. Overall, 84 percent of respondents (including 79 percent of Republicans) say Trump should abide by judicial decisions. Notably, most Americans (57 percent) already think Trump is exceeding his authority. Refusal to comply with final judicial decisions might even be the last straw for some otherwise spineless Republican politicians.

For now, all we can do is rally around the judiciary and hope that the rule of law prevails. The courts have come under cynical, spurious attack recently as both the left and the right sought to politicize them and undermine their credibility.^[6]See, e.g., here, here, and here. Now is the time to rise above partisanship to accord the federal judiciary the respect it deserves and that it will surely need in the months and years to come.

The chaotic start to the second Trump Administration includes a fiasco reminiscent of the infamous Watergate era “Saturday Night Massacre.” In a February 10 memo, Acting Deputy Attorney General Emil Bove ordered Danielle Sassoon, Acting U.S. Attorney for the Southern District of New York, to file a motion to dismiss “without prejudice” pending criminal corruption charges against New York Mayor Eric Adams. Sassoon declined, as did many other lawyers in the U.S. Attorney’s office and in Main Justice in Washington, leading to a series of resignations.

Bove’s memo stated that he was acting “without assessing the strength of the evidence or the legal theories on which the case is based.” He also stated that his directive “in no way” called into question the integrity and efforts of the line prosecutors or Sassoon’s leadership. He cited “two independent reasons” for dismissal: (1) the actions of the former U.S. Attorney threatened the integrity of the prosecution and improperly interfered with Adams’ reelection campaign; and (2) the prosecution unduly restricted Adams’ ability to fight crime and particularly to support federal efforts to combat illegal immigration.

Sassoon responded in an 8-page February 13 letter addressed to Attorney General Pamela Bondi that provided a detailed rebuttal to Bove’s directive and requested a meeting with Bondi to discuss the matter. She concluded by offering to resign if Bondi was unwilling to meet or reconsider Bove’s directive.

On the same day, Bove responded to Sassoon with his own 8-page letter rebutting hers. Bove’s letter accepted Sassoon’s resignation, placed two assistant U.S. attorneys who supported her on administrative leave, and stated that all three would be investigated.       

The two assistant U.S. attorneys from New York resigned along with Sassoon. One of them, Hagan Scotten, wrote his own scathing letter to Bove.^[1]He concluded with this widely-quoted zinger: “I expect you will eventually find someone who is enough of a fool, or enough of a coward to file your motion. But it was never going to be me.” All … Continue reading Bove then turned to the Public Integrity Section in Main Justice in search of someone willing to sign the dismissal motion. Five lawyers in that office, including its two leaders, refused and resigned.

Reportedly, Bove next called the remaining members of the Public Integrity Section together on Friday morning and gave them an hour to come up with two attorneys willing to sign the motion. One eventually came forward—apparently to protect the others–and he, along with a lawyer from the Criminal Division and Bove himself, signed the motion. Notably, Bove was the only lawyer who appeared on behalf of the United States at an initial hearing on the motion.^[2]More detailed background on all this can be found here, here, and here.

The actions of the Justice Department have been widely condemned,^[3]Ironically, the episode has also severely damaged its supposed beneficiary, Adams. with some of the harshest criticism coming from rock-solid conservative sources.^[4]See here, here, and here. The criticism is justified. Bove’s stated reasons for the dismissal are at best dubious and at times implausible and contradictory.

His first asserted rationale—misconduct by the prior U.S. Attorney that tainted the prosecution—is thoroughly contradicted by the facts detailed in Sassoon’s February 10 letter. And if this was an independent reason to end the prosecution why not dismiss it outright?

Bove’s second rationale—freeing Adams to concentrate on fighting crime—is also suspect on several grounds. Sassoon asserts that it constitutes, in effect, a quid pro quo to obtain Adams’ support for federal immigration enforcement efforts. Bove and Adams deny this, but Adams’ subsequent actions are consistent with her assertion. The proposed dismissal without prejudice, thereby retaining the threat of reinstatement, further supports her assertion. Another problem with this rationale is that its logic potentially extends to and undermines prosecutions of incumbent public officials in general. Obviously, a federal criminal prosecution would be a major distraction for any such official and seriously impact their performance.      

Other aspects of Bove’s conduct seem contrived and inconsistent. He may have coached Adams’ lawyers into embracing his rationales. The Adams lawyers said in a letter to the judge assigned to the case, Dale Ho, that Bove “invited us to a meeting at which he asked us to address how the case might be affecting Mayor Adams’s ability to do his job and whether there was evidence of politicization.”

Moreover, Bove’s February 13 letter to Sassoon seems to contradict his earlier statements that the dismissal was not based on the legal merits of the case or the conduct of prosecutors other than the former U.S. Attorney. In it he asserted: “The case turns on factual and legal theories that are, at best, extremely aggressive.” He also alluded for the first time to concerns over the conduct of Sassoon and the line prosecutors.  But if these were the real concerns, he surely would have invoked them initially.

Given the questionable stated grounds for dismissal and related inconsistencies, could there be another explanation for what happened here? At the risk of appearing cynical, my guess—and, of course, it’s purely a guess—is that Trump simply told Bove, directly or through an intermediary, to drop the prosecution and left it to him to make up a legal justification for doing so.

Trump denies instigating the dismissal. However, it’s hard to believe Justice officials would initiate it without his involvement, especially if one accepts their claim to have acted without regard to the merits of the case. Clearly, Adams had been currying favor with Trump for some time. Trump rewards those who kiss his ring and feed his massive ego just as he punishes his detractors. Indeed, Trump had publicly suggested that Adams was being treated unfairly and mused about pardoning him. It also figures that Trump would want the option of reviving the charges if Adams strayed from his good side.

Judge Ho declined to rubber stamp the dismissal motion and is now conducting an inquiry into whether it is contrary to the public interest.^[5]One specific point Judge Ho might rule on is the “without prejudice” aspect. He may be able to shed light on how this came about, perhaps by questioning Bove under oath concerning its genesis. Ultimately, however, the Adams prosecution will almost surely be abandoned. As a legal and as a practical matter, Judge Ho can’t force the Justice Department to prosecute the case.

Whatever its outcome, this episode raises a number of broader concerns. 

How politicized will the Trump Justice Department become? Trump and his allies railed against alleged political manipulation of the legal system by the Biden Justice Department. This case may signal that they are prepared to take such abusive practices to new levels, as Trump so often does.

Where was Attorney General Bondi? While Bove was the front man, creating havoc within the Justice Department, Bondi’s role is unclear. She kept her fingerprints off the documents and declined to meet with Sassoon or personally respond to her letter. Bondi appeared to be one of Trump’s more palatable cabinet choices, but this episode calls into question her leadership and integrity.

What does it say to current and prospective Justice Department lawyers? The disrespectful, ham-handed treatment accorded Sassoon and the others suggests that Justice leadership won’t hesitate to jettison high-quality lawyers who don’t reflexively accept its political objectives.^[6]Bove doubled down on this following the initial hearing on the dismissal motion, virtually inviting more resignations. He said that Justice attorneys who are “with me” will “do great things to … Continue reading If this is the message, expect more principled, highly competent attorneys to head for the exits. Other such attorneys considering employment at Justice will probably think twice as well. The Department will sorely need attorneys of their caliber to defend Trump’s many legally fraught actions.^[7]Contrary to most of the government, Justice is staffing up now for this purpose.

What does it signal to the courts about the Department’s credibility and bona fides? The willingness of the judiciary to assume good faith on the part of the executive branch and accord some degree of deference to its legal positions can be an important factor in litigating close cases. The questionable if not disingenuous conduct of Justice leadership here threatens to squander the Department’s credibility with the courts—something that may come back to bite them as the host of legal challenges to Trump’s actions move forward.

Where is the Congress? The silence on the part of Republicans in Congress is deafening. Many of them joined Trump in denouncing alleged abuses of the Justice Department under the prior administration, but they have nothing to say here. In this instance and others during just the first month of the Trump Administration, Republican majorities in Congress seem wholly disinclined to exercise their oversight responsibilities as a supposedly co-equal branch of government.

Now long retired, I spent my career in jobs focused on reducing waste and improving the performance of the federal government. I worked for many years at a nonpartisan agency dedicated to these goals (GAO) and continued with the same issues as a staffer on several congressional committees under both Republican and Democratic chairs.

I’m sickened by what’s being done these days in the name of government “reform.”

President Trump has apparently delegated virtually unbridled authority to Elon Musk, who seems clueless about how the federal government works and uninterested in learning but who is nonetheless eager to toy with it. Among other things, Musk is wreaking havoc on the federal workforce. His DOGE operation orchestrates massive firings in an arbitrary, ready-fire-aim way that lacks any strategic framework. (We are starting to see cleanup efforts to undo some of the mess.)

The vast majority of employees impacted by these firings are ordinary Americans, including many veterans, who perform their duties conscientiously.^[1]For example, 80 percent of federal employees work outside of the Washington metropolitan area and 30 percent are veterans. They do not make policy. They are not part of some “deep state” movement. They are not hostile to the public; on the contrary, many perform essential public services. They now find themselves out of work not because of any shortcomings on their part but because Musk et al. are trying to score political points. 

In addition to its unfairness and the human toll it exacts, Musk’s meat ax approach is wholly disingenuous as a “reform” project. Federal “bureaucrats” are convenient scapegoats for the many shortcomings of the federal government, but they exercise no inherent authority. They implement programs and activities enacted by Congress under the supervision and control of the political appointees who head their agencies. They often operate with antiquated management systems and processes that their political masters show no interest in updating. 

Musk’s blanket approach to downsizing fails to differentiate based on the importance of the work employees perform or the quality of their performance. His so-called  “fork in the road” initiative offered millions of federal employees eight months pay to do nothing if they agreed to deferred retirement. He patronizingly described it as a chance to “take the vacation you always wanted, or just watch movies and chill, while receiving your full government pay and benefits.” Putting aside the many legal and practical issues the offer raised, imagine that most employees had accepted it. The result would have been government paralysis resulting in severe harm to the public in many areas.

His subsequent blanket, indiscriminate dismissal of probationary employees was more of the same. He targeted them not based on the importance or quality of their work but because they were easy to fire.

Downsizing federal employees per se without regard to what they do or how they do it is nonsensical as a government reform initiative. The federal workforce is about the same size as it was 50 years ago and has actually decreased as a percentage of the overall American workforce. If the objective of reform is to reduce government “bloat” and “waste,” the focus should be on first identifying those programs and activities that don’t serve important federal objectives and only then reducing or eliminating their funding and staff. But this is hard work that requires much analysis and means taking on powerful political constituencies. It’s far easier just to attack federal employees as a whole, who are less politically connected and more vulnerable.

If Musk really wants to highlight a group of underperforming federal workers, he should look to Capitol Hill. Congress is fundamentally dysfunctional. Its members have abdicated most of their legislative authority to the executive branch. They struggle to perform their most basic constitutional responsibility of appropriating funds to keep the government running. They distain meaningful oversight as a co-equal branch of government. Notably, the current congressional majorities turn a blind eye to the flood of dubious actions taken in just the first month of this Trump Administration, including Musk’s.

On top of this, most of the bloat and waste that plagues the federal government can be traced back to Congress. After all, Congress rather than bureaucrats created the agencies, programs, and activities that make up today’s massive, unwieldy, and excessive federal government.  Congress is also the most formidable barrier to reform. It has largely ignored or actively resisted a wide range of reform recommendations submitted to it (often repeatedly) by GAO, agency inspectors general, and others.  

Musk’s attacks on the federal workforce are all the more disappointing because they distract from so many real reform opportunities. Musk and DOGE benefit from a level of visibility and cachet with the president unique in the history of government reform. They are ideally positioned to be a catalyst to force action on a host of serious reform recommendations that would save billions of taxpayer dollars and enhance the efficiency and effectiveness of the federal government. These recommendations have languished for years due to lack of interest or political will to act on them by decision-makers in the executive branch and Congress. Musk and his band of tech bros could also be effective in addressing IT issues that lie at the heart of many federal performance problems—a task that plays to their strengths.

To borrow his phrase, Musk and DOGE face their own “fork in the road.” They can continue their mindless attacks on federal employees, along with their grandstanding on other fronts–e.g., playing the familiar game of cherry picking isolated examples of silly federal expenditures; claiming to “uncover” problems already documented by GAO and IGs; portraying computer programming glitches as evidence of fraud. Or they can take up the large body of existing work that provides a roadmap to needed reforms, add contributions based on their own expertise, and use their immense influence to actually achieve great results for the American people.            

                

Among the flurry (blizzard) of executive orders President Trump issued on his first day in office was one purporting to deny U.S. citizenship to children of unauthorized immigrants born in the United States–and even to some children whose mothers were in the country legally. The executive order immediately triggered lawsuits challenging its constitutionality. The ink was barely dry when Federal District Judge John Coughenour (a Reagan appointee) enjoined its enforcement, finding the order to be “blatantly unconstitutional” and deriding attempts to defend it as mind-boggling.

Trump is unlikely to fare better as the litigation proceeds. His order clearly contradicts the Fourteenth Amendment. While expressing themselves less bluntly than Judge Coughenour, even many conservative legal pundits are highly skeptical of the order’s constitutionality.

Section 1 of the Fourteenth Amendment provides:

“All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.”^[1]For good measure, a federal statute, 8 U.S.C. 1401, says the same thing.

This unambiguously grants U.S. citizenship to all individuals born in the United States, regardless of their parents’ immigration status, with a few minor exceptions not relevant here involving persons who are immune from the laws of the United States (e.g., foreign diplomats). The background and history of the Fourteenth Amendment reinforce the plain meaning of its language,^[2]See here. as do two Supreme Court decisions.^[3] See United States v. Wong Kim Ark, 169 U.S. 649 (1898), and Pyler v. Doe, 475 U.S. 202 (1982).

While the executive order is likely to remain a dead letter, the controversy over it offers two lessons that may have more lasting significance than the order itself.

Originalism isn’t just for conservatives

This case provides a good example of contrasting approaches to constitutional interpretation—originalism versus living constitutionalism—but with a twist.^[4]See here for background on these contrasting methodologies. The originalist approach, usually favored by conservatives and distained by liberals, adheres to the original public meaning of constitutional text. Therefore, this is an easy case for any self-respecting originalist. Judge Coughenour described it as the easiest case he could recall from his four decades on the bench.

The only possible defense of the executive order is, in effect, to invoke the living constitutionalism ordinarily embraced by liberals and ridiculed by conservatives. The argument here is that the original meaning of birthright citizenship must “evolve” to better address the current landscape of massive illegal immigration and arguable abuses of citizenship acquisition such as “birth tourism.”

After all, the Fourteenth Amendment’s birthright citizenship provision was designed primarily to overrule the reviled Dred Scott decision and affirm the citizenship of African Americans living in the United States; illegal immigration was a non-issue at that time. From this perspective, its sweeping grant of birthright citizenship could be considered anachronistic and unsuitable in today’s environment. In support of this, advocates for the executive order argue that the phrase “subject to the jurisdiction” of the United States can be read to limit birthright citizenship to persons who owe exclusive “allegiance” to the United States and thus exclude non-citizens living here legally or illegally.

This effort to reimagine the birthright citizenship provision rather than apply it as written has been roundly condemned and is unlikely to gain any traction with the courts.^[5]See here for more on these arguments together with a rebuttal by a leading conservative legal scholar. Originalism not only produces a liberal result in this case but provides a far superior legal rationale.

Even Trump needs to know when to fold

Many legal cases turn on how much credence and judicial deference to afford executive branch positions; thus, presidents and their lawyers can ill afford to squander whatever cachet they have with the courts. Administrations of both parties regularly test the limits of their authority and sometimes stake out far-fetched legal positions.^[6]See, for example, President Biden’s risible declaration on his way out the door that the Equal Rights Amendment has been duly ratified and is now part of the Constitution. But Trump takes this practice to a new level. Many of his actions, including several other recent executive orders, flout the law.

Sadly, Trump’s standard approach of bullying, intimidation, and personal attacks on those who resist him has served him well in the political arena. However, as the initial round in this controversy shows, these tactics won’t work with the federal judiciary. It’s hard to imagine any court, much less the Supreme Court, ruling for him in this case.

The worst approach Trump could take is to push the case through the judicial system and force his lawyers to defend the indefensible by pressing outlandish arguments. Doing so will surely end in defeat, and it could well cause them reputational damage carrying over to more serious cases. The most sensible thing Trump could do is settle for whatever political advantage he got from staking out his position on birthright citizenship, drop the legal defense of the order, and move on. Of course, Trump being Trump, he probably won’t.

 

 

 

 

The federal government clearly needs reform. Duplication and overlap abound. Many programs and activities are at high risk for fraud, waste, abuse, and mismanagement. The federal government faces a looming fiscal crisis as spending spins out of control. Annual interest payments on the federal debt exceed the entire defense budget. Entitlement programs such as Social Security and Medicare are financially unsustainable and on the road to insolvency. It’s no wonder most Americans lack confidence in the federal government.

In the face of this, President-elect Trump announced to great fanfare a reform initiative called the “Department of Government Efficiency” (DOGE), to be led by Elon Musk and Vivek Ramaswamy. Despite its name, DOGE will be a non-government entity although it will work closely with the executive branch and Congress.^[1]Several past government reform initiatives used a similar model. The closest analog is the Grace Commission, established by President Reagan in the early 1980s. DOGE is to complete its work by July 4, 2026.

Will DOGE be a serious, substantive undertaking?

At best, DOGE could be the kind of high-profile, high-powered change agent needed to train the spotlight on the government’s many shortcomings and deliver major improvements and taxpayer savings. At worst, it might be nothing more than a political exercise and a vanity project for its co-leaders that accomplishes little and even distracts from more earnest reform efforts.

Time will tell which way DOGE goes, but there are early warning signs. The rhetoric coming from Trump, Musk, and Ramaswamy—e.g., “drain the swamp,”“second Manhattan Project,” use a “chainsaw not a chisel”–makes DOGE sound more like a scattershot attack on the federal government than a thoughtful undertaking to fix it.^[2]See, e.g., here and here. Their pervasive emphasis on “cutting the government down to size” ignores what should be a concomitant—in fact, more important—goal for any comprehensive reform initiative: enhancing the performance and effectiveness of core federal government functions.

Musk and Ramaswamy make extravagant promises that call into question their understanding of the work before them.  In particular, Musk’s suggestion that DOGE could cut “at least $2 trillion” from the annual federal budget has been met with  great skepticism. ^[3]See here for a detailed reality check of the early DOGE agenda.

The selection of Marjorie Taylor Greene, one of the most frivolous and least respected members of the House of Representatives, to chair a subcommittee working with DOGE is another red flag.

A reform effort as ambitious as DOGE claims to be is sure to encounter resistance from many corners. It will need all the credibility, good will, and support it can muster from the public, the media, and politicians of both parties. If its leaders are genuinely interested in achieving serious results, they would be wise to project more seriousness.

DOGE prioritizes dubious projects

Some of the specific priorities Musk and Ramaswamy pushed in a recent Wall Street Journal op-ed raise additional warning signs. For example, they suggest that a “plethora” of current federal regulations are illegal and pledge to develop a list of “tens of thousands” of them for Trump to “nullify.” They would also eliminate federal employees in numbers “at least proportionate to the number of regulations nullified.”

It’s absurd to think that thousands of legally suspect regulations have gone unchallenged and are just waiting for DOGE to discover them. In any event, Trump can’t simply nullify regulations. Repealing them is a complex, legally fraught process requiring the experience and expertise of the employees they plan to eliminate. One recent Supreme Court decision Musk and Ramaswamy cite as easing this task will actually make it harder.

Another problematic example is their pledge to target $500 billion in annual federal spending that is “unauthorized by Congress.” Apparently, they refer to agencies and programs operating under expired statutory authorizations. Contrary to their implication, there’s nothing illegal about this. Lack of authorizing legislation is significant only under internal congressional rules, which Congress regularly overrides as it continues to fund these agencies and programs.

There are much better projects for DOGE to prioritize

DOGE could get off to a stronger start by prioritizing projects that are more likely to attract broad support and achieve real results. Nonpartisan federal watchdogs such as the Government Accountability Office (GAO) and agency inspectors general (IGs) have reported (repeatedly) on a host of serious problems facing the federal government along with their root causes. Much of what’s needed to address them is already known.

One major reason these problems persist is that executive branch and congressional decision-makers lack the interest and sustained commitment to implement solutions. A high-visibility initiative like DOGE could serve as the catalyst needed to pressure decision-makers to act. It could use the extensive body of work already done by GAO and the IGs as a roadmap for this purpose. Some examples:

• • Hundreds of billions of taxpayer dollars are lost annually to fraud and other improper payments. DOGE could start by targeting six federal programs GAO identified as accounting for $200 billion of the estimated $236 billion of improper payments in fiscal year 2023.
  • The Defense Department is a poster child for waste, inefficiency, and mismanagement. It can’t pass a basic audit. It owns five areas on GAO’s high risk list that have persisted for decades and contributes to several more. Its ossified business operations, which seem impervious to reform, present many targets well suited to DOGE’s aggressive entrepreneurial approach.
  • GAO reports that the nation’s air traffic control system “urgently” needs modernization. Many of its data systems are seriously outdated and unsustainable. Fixing these problems would enhance the safety and efficiency of air travel.
  • Federal oversight of the U.S. food supply is badly fragmented. Fifteen different agencies administer at least 30 different laws in this area. For example, cheese and meat pizzas are regulated by different departments. This problem has languished on GAO’s high risk list for 17 years. Streamlining and rationalizing this regulatory maze would save money and enhance food quality and safety.

There are many other well-documented, promising reform opportunities like these that offer substantial taxpayer savings and improvements in the delivery of essential government services that the public relies on.

Entitlement program reforms should be on the table

Any comprehensive reform initiative, especially one that promises to improve the government’s dire fiscal situation, should include massive entitlement programs like Social Security and Medicare. Both programs are fiscally unsustainable as now structured and will become insolvent in about a decade. While these programs are popular, the reform options—some mix of reduced benefits, tightened eligibility requirements, and/or higher taxes—are not. Consequently, neither political party shows interest in taking them on despite the inevitable need to face up to them at some point. Unfortunately, DOGE apparently plans to dodge them as well.   

Congress is a major obstacle to reform

Bureaucrats are convenient scapegoats for the government’s woes. In reality, however, Congress is both a primary source of many problems and often a roadblock to fixing them. Federal agencies and their employees exercise only the powers that Congress grants them. The thousands of federal programs now on the books are the work of Congress. A significant cause of the proliferation of federal regulations is Congress delegating vast discretionary authority to agencies with little accompanying guidance. As Congress has become increasingly dysfunctional in recent years, it has defaulted more and more of its legislative responsibilities to the executive branch.

DOGE will probably find Congress to be more of an adversary than an ally. Most members of Congress see little political payoff to pursuing government reforms. On the contrary, troubled programs and activities have constituencies with political influence on Capitol Hill that actively resist reforms. Lawmakers on authorizing and appropriating committees zealously guard their turf and protect the special interests that fund their elections. These headwinds to reform contribute mightily to the tenacity of problems like fragmented food inspection programs and hidebound Defense Department operations.

Congressional barriers to reform are a rare example of bipartisanship; members of both parties are equally protective of their constituencies and resistant to change. If DOGE is to achieve real reform, its leaders must find ways to overcome these forces.

Outlook

Comprehensive federal government reform is sorely needed. DOGE starts with the key potential advantages of a high profile, aggressive leaders (to say the least), and strong presidential support. Whether it can live up to its billing remains to be seen. As a good first step, its leaders should approach their work with more realistic, strategic thinking and less hubris.