I’ve got a new piece in the Atlantic about the soon-to-be Department of Government Efficiency. Musk and Ramaswamy’s claims depend much more on the finer points of administrative law than I would’ve expected!

I thought about mental models when Elon Musk and Vivek Ramaswamy released an op-ed in The Wall Street Journal making their first major statement about the soon-to-be-created Department of Government Efficiency, or DOGE. In some ways, I liked what I read. I share their conviction that government has become too bureaucratized, rigid, and slow. I agree that radical change is needed.

Musk and Ramaswamy smell the same crap that I do. But I fear they’ve got a bad mental model about what’s wrong. They think we’ve got too many civil servants—their equivalent of the garbage disposal. They aren’t paying nearly enough attention to the clogs in the drainpipe, including the finicky legal and procedural rules that will predictably frustrate their reform efforts. Unless they change what they’re up to, I doubt they’ll make much progress.

What I find strangest about the op-ed is the insistence that Loper Bright and West Virginia v. EPA give them the power to take a meat cleaver to the Federal Register.

Don’t get me wrong, there are lots of dumb rules. It’s just that most of those rules are squarely within their agency’s remit. Although that doesn’t make them any less dumb, it does mean that pointing to Loper Bright and West Virginia v. EPA won’t help get rid of them.

What’s more, Musk and Ramaswamy get it backwards when they say that the cases give them extra powers to undo existing regulations. In fact, the cases constrain their authority. Imagine that an agency, for example, has an old rule on the books that is based on an interpretation of the law that DOGE dislikes. Before Loper Bright, the agency could have changed that interpretation so long as the new interpretation was also “reasonable.” The agency was free, in other words, to toggle between different ways of reading an ambiguous law.

After Loper Bright, toggling is verboten. An agency that has already adopted the soundest interpretation of a law can’t change its mind. It’s stuck. 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. Saying that Loper Bright gives DOGE flexibility is about as sensible as saying that handcuffs help when throwing a baseball.

There’s a lot more at the link, including about impoundment and the difficulty of cutting all the waste, fraud, and abuse in the system.

@nicholas_bagley