This is an adapted excerpt from MSNBC legal correspondent Lisa Rubin’s YouTube series “Can They Do That? With Lisa Rubin.”
With the Department of Government Efficiency, or DOGE, Donald Trump and Elon Musk have launched an assault on state capacity. Conservatives say they want to attack the administrative state, but the administrative state is just another word for government.
When we think about the United States government, the Constitution actually doesn’t say very much about what that government is supposed to look like. But over the course of the last two centuries, different problems have arisen at the federal level, and in response to each of those problems, Congress has had to create different kinds of institutions, or agencies. If we think of the sum of all those agencies together, that’s what makes the administrative state. Most of these agencies have been created by statute and follow a similar process: A problem presents itself, and Congress passes a law.
In American politics, the separation of powers seems to matter less than the party allegiance across the different branches of government.
But when it comes to DOGE, the Trump administration did not follow this process. When Trump first announced his intent to start DOGE, a lot of us in the administrative law world thought there was nothing to worry about because, typically, he would have to pass a law to create a new agency.
But instead, the administration came up with a backdoor. They took the U.S. Digital Service, hollowed it out and turned it into DOGE. And now, they are using DOGE as a vehicle to allow the president to exercise unprecedented control over how our government agencies operate.
Transparency is a key part of the administrative state. You have to be able to see what an agency is doing and grasp what it’s up to. In DOGE’s case, we have the opposite of that. We don’t know what the structure of the agency is, we don’t know what its responsibilities are, we don’t know what its mission is, and we don’t know what laws it is implementing. As we see court cases against DOGE make their way through the legal system, it sure seems like some of their actions are transparently illegal, or at the very least in real tension with the spirit of the law.
Some of the biggest fights in American political history have been about the tools presidents use to control the administrative state. While the judicial branch is putting up a fight against DOGE and checking the president’s power, Congress appears to be letting Trump do whatever he wants.
This is emblematic of a much deeper problem in American politics, which is that the vision of the Constitution that we all learned in school, the one with three branches that are supposed to counterbalance one another, is not our reality in practice. Instead, as professors Daryl J. Levinson and Richard H. Pildes wrote in their article, "Separation of Parties, Not Powers," what we actually know about American politics is that the separation of powers seems to matter less than the party allegiance across the different branches of government.
For better or worse, DOGE is the embodiment of the will of the current Republican Party, which is deeply hostile to the federal government and anti-administrative state. So even as the courts are getting involved to try to stop DOGE and its damage, the real break here isn’t going to be a court declaring what they’re doing as illegal. It’s going to be the American people recognizing what Trump and his administration are doing to our system of government and fighting back.