Why Advisory Committee Law Might Make DOGE Far Less Efficient

The words “department” and “efficient” won’t make DOGE either of those things by themselves.

By Jared Danaher

Background

On his first day in office, President Donald Trump fulfilled a post-election pledge to establish a federal “Department of Government Efficiency,” popularly known as DOGE and headed by entrepreneur Elon Musk. Despite its title, DOGE is not a department of the federal government with any technical legal power because Congress did not create it. Instead, Elon Musk and his employees at DOGE are members of a federal advisory committee. All of DOGE’s power comes from the weight that people with legal authority give to the advice it provides. That means DOGE might be subject to a law called the Federal Advisory Committee Act or FACA. If courts hold that DOGE is subject to FACA, the “Department” of Government “Efficiency” it is going to become much less efficient.

Why Doesn’t DOGE Have Any Legal Power?

Because of an important legal concept called delegation. It would be impossible for Congress to make laws comprehensive enough to answer every question those laws may generate and still meet the broad array of demands that come with serving a country of 300 million people. For example, if Congress passes a law requiring that all fences in America be painted pink, that leaves open a lot of questions. What shade of pink? What kind of paint? How soon does the painting need to happen? While we are at it, what sort of structures count as fences?

As this thought experiment illustrates, a series of unpredictable questions accompany any law that Congress may enact. Thus, our constitutional system allows Congress to delegate—or transfer—some of its lawmaking power to the executive branch so it can fill in these gaps. Put another way, Congress can (within limits) give the executive branch some of its legislative power so it can answer questions left open by Congress’s exercise of its lawmaking power. This is exactly what Congress is doing when it creates an agency—a body within the executive branch that possesses the legal authority to help Congress carry out its legislative enactments by issuing regulations. To return to our fence example, when Congress passes the pink fence law, it might, in the same statute, create the National Fencing Painting Agency (NFPA) and give it the legal authority to carry out the pink fence law by answering all those questions raised earlier. So, the NFPA could issue a regulation that says all fences must be painted in the shade #FF69B4 (hot pink!). This regulation would have the force of law and all fence owners would be required to comply with it.

So how does all of this connect up with DOGE? Well, DOGE was not created by Congress. Instead, President Trump unilaterally established DOGE. The President is head of the executive branch—that branch enforces laws, but cannot make them. That means the President has no lawmaking authority to delegate to an agency. Congress may delegate some of its lawmaking power, but the President cannot delegate lawmaking power he does not have. Since DOGE was created by President Trump—who has no lawmaking power to delegate—DOGE is not an agency with legal authority.

So if DOGE isn’t an Agency, What is it?

Donald Trump has no legal power with which to create DOGE? What!? How can that be? He created it, didn’t he? DOGE is certainly at work right now, isn’t it? If Trump had no power to make DOGE, how did he do it? If you are thinking this way, your lawyerly instincts are excellent.

Here is the legal explanation for why DOGE still exists despite the fact President Trump cannot delegate legal authority to it. The President can appoint advisors: He can select people to give him advice and counsel as he navigates the most difficult job in the world. But those people do not have any legal power, they simply provide advice to the people with the legal power.

So, when President Trump created DOGE and charged it with cutting down regulation and eliminating waste in the government, what he really did is ask DOGE to give him advice about what regulations he should cut and what waste he should eliminate. As head of the executive branch, the President has the power to order the heads of agencies (the people Congress delegated lawmaking authority to) to do certain things, including reduce red tape. President Trump has simply asked Elon Musk and his team at DOGE to help him figure out who he should issue those orders to. This means DOGE’s decisions do not have any legal effect themselves. Instead, DOGE is just offering advice to President Trump about what decisions he should make, and President Trump’s decisions have legal effect. It may be the case that President Trump blindly accepts all of DOGE’s recommendations, but that does not change the fact that, by themselves, DOGE’s recommendations are just that. The Trump administration, never one to make unearned concessions, has already acknowledged that Musk’s legal authority is limited and largely advisory, likely in an attempt to get in front of legal challenges to DOGE’s existence.

The Cases

Against this backdrop, we can start to make sense of the lawsuits against DOGE. In 1972, Congress passed a law called the Federal Advisory Committee Act (FACA). That law was intended to produce greater transparency into the workings of the influential committees that give advice to the powerful people in our government. FACA imposes a host of chartering and reporting requirements on advisory committees. Two lawsuits against DOGE, Lentini v. Department of Government Efficiency and American Public Health Association v. Office of Management and Budget, essentially allege that DOGE is an advisory committee under FACA, and that it has not complied with the reporting and chartering requirements of the law. As of right now, the cases have seen little movement, aside from the plaintiffs filing a complaint. Nevertheless, we can anticipate the legal arguments that will be made in the suit.

Most likely, DOGE will argue that it is not covered by FACA. FACA’s requirements are extensive. They include public reporting, public access to meetings, “fairly balanced membership,” and freedom from special interests. It is probably fair to assume that a group dedicated to cutting down inefficiencies in government does not want to get caught up in the inconvenient quagmire of complying with all the technical requirements imposed by the law.

That means DOGE will probably argue that it is not subject to FACA’s requirements. The mere fact that DOGE is an advice-giving committee does not necessarily mean it is subject to FACA’s requirements. The language of the act is deceptively simple. It says that an advisory committee is subject to FACA whenever it is “established or utilized by the President.” That simple definition would almost surely sweep in DOGE, but courts have added additional layers of complexity to FACA’s meaning. So, whether a particular advisory committee is subject to FACA depends on “many factors and is often decided on a case by case basis,” according to a Congressional Research Service Report. The leading Supreme Court case on FACA offers little guidance for how the DOGE case might be resolved. In Public Citizen v. Department of Justice the court ruled that a committee of the American Bar Association did not count as an advisory committee under FACA even though it gave the Department of Justice and President advice about which lawyers might make good federal judges. Writing for the court, Justice William Brennan ruled that even though the plain text of FACA would cover the ABA committee, this result was too odd to be intended by Congress. Justice Brennan scoured the legislative history of the law and determined its drafters did not intend to cover the ABA and therefore the ABA was not subject to FACA.

The Supreme Court today is far more textualist than it was in 1989 when Public Citizen was decided. That means Justices today are more likely to let the plain language of the law control the legal analysis and are far less likely to turn to legislative history to determine the meaning of a legal term, although they may diverge on whether to use historical context to inform their reading. Thus, whether DOGE has to comply with FACA will turn on whether the courts abandon Public Citizen’s legislative history focused approach. If not, DOGE will have to comply with FACA only if the legislative history of the law makes clear that it intended to reach an advisory committee like DOGE. If the Court does take a more textualist approach to interpreting FACA, DOGE will almost certainly have to comply with the law because it was established by President Trump. If DOGE is forced to comply, its mission will become a lot more difficult to carry because it will have to begin complying with the complicated and intricate administrative burdens FACA imposes.

Further Reading

On Delegation: https://constitutioncenter.org/the-constitution/articles/article-i/clauses/749#article-i-section-1-general-principles

On the Presidential Appointments power: https://constitutioncenter.org/the-constitution/articles/article-ii/clauses/346

On FACA: https://www.gsa.gov/blog/2022/09/30/50-facts-for-50-years-building-the-framework-of-faca

On the Textualism of the Current Supreme Court: https://scholarship.law.duke.edu/dlj/vol74/iss3/1/