DOGE: Congress in the Dock

The unofficial advisory board may not have much actual power, but every finding they make will spotlight Congress’ inaction on waste, fraud, and abuse.

By Mark Strand

There is genuine excitement about the unofficial Department of Government Efficiency (DOGE) headed by Elon Musk and Vivek Ramaswamy. With a nearly $2 trillion annual budget deficit and a national debt of $35 trillion, the United States government is so far beyond its means that it is tempting fate. In the form of a debt spiral, that fate would mean hyperinflation and an economic collapse that would devastate savings and retirement plans, price groceries, housing, and energy beyond most people’s ability to pay, and lead to an economic collapse.

Unfortunately, DOGE has no apparent power. It cannot subpoena government witnesses or ask the Government Accountability Office (GAO) to investigate a particular program, and it has no enforcement mechanism to fix or eliminate broken and wasteful programs. In its present form, which is ambiguous, it has no staff and no funding beyond what Musk and Ramaswamy put into it.

It remains to be seen if President-elect Trump will compel his executive branch employees to cooperate with DOGE. Unlike the Grace Commission, created by an executive order issued by President Ronald Reagan in 1982, which issued a report for Congress to consider, DOGE will not report to Congress so much as offer ideas to slash excess regulations, cut wasteful expenditures, and restructure federal agencies. It may propose eliminating entire agencies and reducing the federal workforce by up to 75%.

Musk and Ramaswamy hope that the Supreme Court will pave the way for Executive action that would impound funds for wasteful programs, eliminate entire agencies, and reduce the federal workforce. They are likely to be disappointed.

The Supreme Court is indeed a conservative one, but their definition of conservative has to do with their more literal interpretation of the Constitution, not a political or partisan ideology. In recent years, the Supreme Court has increasingly been ruling against executive power and in favor of restoring powers to Congress, which it has either neglected or been all too happy to surrender. Given recent decisions like Loper Bright Enterprises v. Raimondo that curtailed the Chevron doctrine, it would be naïve to think the Court will suddenly provide the President with powers that progressives like Woodrow Wilson only dreamed of.

So What Will Happen?

Only one branch of government can accomplish what DOGE plans, and that is Congress. When it comes to cutting programs, eliminating jobs, and slashing waste, the Constitution gives Congress the power of the purse and the ability to conduct oversight over the Executive Branch. The President has some power, using Executive Orders to oversee executive branch employees, but nowhere near the power needed to conduct deep cuts and reform how agencies are run.

Here’s the problem. Congress has had this power for over 200 years.

Later this month, Congress will pass a Continuing Resolution providing funding for every wasteful program DOGE will likely uncover. Congress will pass this without passing the necessary authorizations for most non-defense programs, giving the bureaucracy carte blanche to run programs any way they like.

Congress is supposed to review every federal program and act according to what they uncover in the hearing process. It can increase funding for good programs. It can slash funding for inefficient, duplicative, and wasteful programs. Only Congress can eliminate federal departments and agencies.

Yet Congress has not done this because it finds the authorizing process too complex and fraught with the prospect of angering various constituencies. Besides the Defense Authorization bill, which Congress manages to pass annually, two-thirds of all Executive branch programs are unauthorized.

Were you upset that only about six percent of the federal workforce works a 40-hour week in their offices? Blame Congress. Congress could make those employees report for work. Do you think having a federal Department of Education when state and local governments are responsible for education is wasteful? Blame Congress. Do you find it hard to believe that Federal agencies struggle to eliminate employees with little or no work? Blame Congress.

Both the House and the Senate have rules prohibiting the appropriation of money for programs that have not been authorized, but the two august bodies cheat.

Despite the rules against unauthorized appropriations, Members of Congress routinely pass them, preferring to ignore this procedural requirement rather than shut down all or part of the government due to the failure to pass appropriation bills on time. The House works around the rules prohibiting unauthorized appropriations by using the Rules Committee to waive points of order against them or dispensing with them in other ways. Congress is well within its rights to dispense with the rules against unauthorized appropriations. But it’s a fool’s errand since by doing so, Congress reduces its constitutional power to hold the Executive Branch accountable.

The federal government's sheer size and scope and the complexity of the authorization process mean Congress often fails to authorize some programs before the new fiscal year. As a practical matter, Congress frequently works around the authorization rule to prevent a government shutdown. However, since the authorization process aims to ensure oversight and accountability, create new programs, and eliminate ineffective ones, using these waivers signifies a failure in the budget process.

The fact that appropriations are unauthorized might seem like a parliamentary triviality, but authorization bills provide instructions to agency officials. In the absence of authorizations, bureaucrats have more significant influence over how an agency will carry out its mission – and if the committee persists in its failure to pass authorizations, an agency eventually stops paying much attention to it. Although there may be some capable and well-intentioned public servants in the Executive Branch, the Constitution gives the responsibility for setting policy and spending money to Members of Congress since citizens can hold them accountable at the ballot box.

Aside from setting policy, the authorization process is the key to Congress exercising Executive Branch oversight. In theory, authorizing committees can exercise oversight powers independent of the authorization process. Still, few things can change how an agency is run, like the prospect of losing money or being subjected to a grilling at a public committee hearing. Today, with unauthorized appropriations routinely flowing to government agencies, there is no incentive for these agencies to respond to authorizing committees since these committees can only turn off their funds if they reauthorize or enforce them.

Congress in the Dock

The real power of DOGE will be to put Congress on trial for its failure to do its job. Every wasteful program uncovered by DOGE will be a program that Congress funded this year. When DOGE proposes a way to make a program more efficient, Congress must make it happen.

Most members of Congress won’t like this. When your job security depends on maximizing the number of constituents who like you, eliminating federal jobs seems politically risky. The most important work of DOGE will be to make not eliminating government waste equally politically risky.

The role of Congress is not merely to perpetuate its members' jobs; it is to conduct the people’s business. Sometimes, that means making difficult decisions that can be politically counterintuitive.

Right now, the most inefficient and wasteful programs are hidden in 5,000-page bills written in the strange language of legalese. Do you ever wonder why Congress is so fond of omnibus bills? It is so they can hide the programs that should be eliminated behind programs essential to government operation.

DOGE can serve a valuable purpose by spotlighting wasteful spending, thereby forcing Congress to conduct oversight and make the difficult decisions needed to cut the budget deficit and improve government operations. If DOGE can accomplish this, it will have performed a very valuable service to the nation’s taxpayers.