Deconstructing the Administrative State: Will This Time be Different?

For decades now, incoming Republican administrations have pledged to take on Washington and “check and reverse the growth of government,” as Ronald Reagan promised to do in his first Inaugural Address.  Reagan’s promise echoed the same commitment that Richard Nixon offered in his now-famous 1971 annual message to Congress: “a new American revolution…in which power was turned back to the people.”  This revolution, Nixon promised in early 1973, would be the “change in direction” that reversed the tendency of power to “flow inexorably to Washington.”  

At the outset of the Trump administration's first term, White House strategist Steve Bannon similarly claimed that “deconstruction of the administrative state” would be an administration priority. Like Nixon and Reagan before him, Trump achieved minimal success in reversing the administrative state’s growth and reach.  

This pattern of promising to roll back the growth of the administrative state has repeated in the weeks following Trump’s victory in the 2024 presidential election.  President-Elect Trump has chosen two high-profile supporters, Elon Musk and Vivek Ramaswamy, to run a new “Department of Governmental Efficiency” (DOGE) dedicated to deconstruction.  Although the details of its scope, structure, and authority are still vague, Musk and Ramaswamy have indicated that it will work with White House officials and the bureaucracy to achieve “structural reductions in the federal government,” completing its work on July 4, 2026 – the 250th anniversary of the Declaration of Independence.  Whether DOGE will overcome the obstacles plaguing previous attempts to deconstruct the administrative state remains to be seen.      

Musk and Ramaswamy emphasize different aspects of DOGE’s work (Musk touts the fiscal cuts DOGE will implement, and Ramaswamy highlights deregulatory initiatives).  However, they both promise that this new organization will succeed, whereas previous efforts to restrict and reverse the growth of government have failed.  They write, “politicians have abetted [the bureaucracy] for too long.  That’s why we’re doing things differently.  We are entrepreneurs, not politicians.  We will serve as outside volunteers, not federal officials or employees.  Unlike government commissions or advisory committees, we won’t just write reports or cut ribbons.  We’ll cut costs.”  “We are prepared for the onslaught from entrenched interests in Washington.  We expect to prevail,” they proclaim.  Trump declared DOGE the “Manhattan Project of our time” and predicted that it would “dismantle Government Bureaucracy” and “slash excess regulations.”    

Will this time be different?  How will DOGE seek to restrict and reverse the growth of government, and will it be successful?  Conservatives generally believe that DOGE’s impact will dramatically affect the trajectory of the modern administrative state.  Roger Kimball predicts that although Trump “managed only to nibble around the edges of the administrative state” in his first term, “things will be very different in Trump’s second term.”  Thus, conservatives seem to think that things will be different this time.  Is their optimism justified?    

Musk and Ramaswamy point to two “critical” Supreme Court decisions in recent years that, in their view, offer an opening for the Trump administration to roll back significant portions of the administrative state.  The first, West Virginia v. EPA, affirmed a “Major Questions Doctrine” which requires Congress to clearly authorize administrative agencies to exercise authority over highly consequential issues.  According to this doctrine, agencies may not rely on ambiguous statutory language to assert authority over important issues.  

The second decision, Loper Bright v. Raimondo, made news last summer by ending the “Chevron doctrine.” That doctrine required courts to defer to administrative agencies’ interpretations of the law in cases in which the law was unclear.    

Musk and Ramaswamy argue that these two decisions will allow “legal experts embedded in government agencies” to identify regulations that can be repealed, presumably because they address “major questions” without clear congressional authorization or because they rely on administrative interpretations of statutes that would not withstand judicial scrutiny post-Chevron.  

In other words, a core feature of DOGE involves submitting a list of regulations that President Trump will rescind in light of these recent Supreme Court rulings.  Musk and Ramaswamy explicitly acknowledge that they “will focus particularly on driving change through executive action based on existing legislation rather than by passing new laws.”  DOGE itself, therefore, raises its own “major question”: can the executive branch unilaterally deconstruct the administrative state?

There are reasons to be skeptical that it can—reasons rooted in fundamental features of American constitutionalism. Our political system is designed so that durable and significant policy change is only achievable through congressional action.  

Admittedly, Congress has delegated an immense amount of authority to the administrative state and thus empowered the administrative state to make policy unilaterally.  However, Congress has also enacted guardrails around the administrative state to constrain agencies’ discretion.  Most notably, Congress enacted the Administrative Procedure Act (APA) in 1946 to impose procedural constraints on making and repealing rules.  These constraints are so considerable that they are often criticized for making it too difficult to write new rules or repeal existing ones.  The APA also authorizes judicial review of administrative agencies where their actions are not based on substantial evidence or appear to be “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.”  

Ramaswamy recently acknowledged this, though begrudgingly, when he noted that the APA requires agencies to follow procedures when rescinding rules, and judicial review applies when agencies do so. In short, both Congress (by writing the statutes that delegate authority to agencies) and the courts (by enforcing procedural and substantive requirements on agency activity) play a significant role in how the administrative state operates, and DOGE’s efforts to reform the administrative state will have to anticipate how these institutions will respond to those efforts.  

For instance, if DOGE wants to rely on new interpretations of laws to repeal regulations, presumably because those regulations go beyond the authority Congress granted, it is always possible for Congress to clarify its intent in a number of ways.  Moreover, courts can interpret those same statutes differently than DOGE, and without a Chevron doctrine, they do not have to defer to DOGE’s interpretations.  Courts could also determine that an agency’s decision to repeal a regulation is “arbitrary” or “capricious.”  

A way to avoid these pitfalls is for DOGE to work with Congress to revise the laws that have authorized and structured the administrative state, such as the APA and other major statutes.  Congress has been the primary architect of the administrative state over the past century.  Ultimately, any meaningful “deconstruction” of the administrative state would require Congress’s action and approval since Congress is the fountain of the administrative state’s power.  Getting Congress to act is, of course, much more challenging than remaking policy through a “phone and a pen,” but the Framers designed our system to require coalition building in legislative bodies where elected representatives make the major policy decisions.  

They did this for good reasons: to ensure the government’s dependence on the people, to promote stability, and to establish a place where representatives could deliberate and “refine and enlarge the public views.”  It is indeed more cumbersome to enact durable policy changes, but it also ensures that those changes, once passed, cannot easily be swept away by temporary majorities and presidents in the future.

DOGE’s leaders would do well to acknowledge, accept, and work within our constitutional system's basic realities.  If it does and attempts to work with Congress to reform the administrative state meaningfully, DOGE could lead a long-overdue reassessment of the administrative state’s role in our constitutional system.  This reassessment is essential to ensure that the modern state remains within constitutional boundaries and that the government remains accountable to the people.  

Joseph Postell is Associate Professor of Politics at Hillsdale College.