Federal courts 'not likely to be sympathetic' to Musk’s proposed budget cuts: legal expert

23 November 2024

Billionaires Elon Musk and Vivek Ramaswamy are eager to fire thousands of federal government employees. But some experts believe they may find the federal judiciary to be a significant obstacle in their path.

The Hill recently reported that the billionaires' so-called "Department of Government Efficiency" (which has not been authorized by Congress and lacks the ability to make binding decisions) may be in for a rude wake-up call from the federal courts, despite their belief that two Supreme Court decisions will help them demolish a slew of regulations on the private sector. Musk and Ramaswamy laid out their plans in a Wall Street Journal op-ed, insisting that the High Court's rulings gave them free rein to bulldoze the administrative state.

"In West Virginia v. Environmental Protection Agency (2022), the justices held that agencies can’t impose regulations dealing with major economic or policy questions unless Congress specifically authorizes them to do so. In Loper Bright v. Raimondo(2024), the court overturned the Chevron doctrine and held that federal courts should no longer defer to federal agencies’ interpretations of the law or their own rulemaking authority," they wrote. "Together, these cases suggest that a plethora of current federal regulations exceed the authority Congress has granted under the law."

University of Michigan law professor Nicholas Bagley — a former chief legal counsel to Michigan Democratic Governor Gretchen Whitmer — said their op-ed "reflects a misunderstanding" of those decisions. He argued that those decisions were more for lower courts to have additional guidance when ruling on challenges to those regulations, and that agencies both before and after those decisions still have the power to reconsider any rule they impose.

“Nothing changed with respect to their authority to consider different approaches to regulating,” Bagley told the Hill. “If what they’re saying is agencies can now adopt different regulations without going through the administrative process, because they think they’ve got some clincher of a legal argument, I think they’re going to find out very quickly that the courts are not likely to be sympathetic with cutting procedural corners.”

Musk and Ramaswamy also argued in favor of abolishing a 1974 law prohibiting a president from using what's known as "impoundment," in which money authorized by Congress that has not been spent be returned to the U.S. Treasury. But Bagley argued that the law is clear in what a president is and isn't allowed to do, and that the courts are obligated to uphold the statute.

"They’re not going to recraft entire swaths of constitutional and administrative law just to accommodate this novel committee that President Trump has set up," he said.

Click here to read the Hill's report in full.

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