I could tell you what Trump’s latest executive order on “Ensuring Lawful Governance and Implementing the President’s ‘Department of Government Efficiency’ Deregulatory Initiative” says. I could tell you that it purports to give the illegally constituted “DOGE Team Leads” assigned to every agency nearly unchecked authority to choose which of the agencies’ existing rules get to remain on the book and whether and what kind of the regulations the agency may issue in the future. I could also tell you that it is now official Trump administration policy that existing regulations that are too inconvenient for the business community – no matter what kind of benefits they deliver – will no longer be enforced, purportedly rendering them a dead letter.
I could tell you all these things, but they wouldn’t convey what the import of what this order actually means.
To appreciate its meaning, it’s helpful to zoom out and understand why we have a regulatory system in the first place – since, ultimately, this order represents a fundamental restructuring of that system.
By design, our constitution created governing institutions that were meant to be insulated against public demand, and instead to be more responsive to the concerns of elites. By the dawn of the Progressive Era in the late 1800s, it became increasingly clear that this design was not workable. Unable to amend the Constitution to cure these defects, progressive advocates, movement leaders, and thinkers fought for and won important reforms that built what we know as the modern regulatory system on the existing scaffolding of our existing constitutional framework.
The Constitution was preserved, and we had governing institutions that would be both more responsive to the public’s demands for social and economic policy and more inclusive of the public in how those policies were ultimately implemented, particularly by collaborating with agencies’ professional career experts.
This regulatory system has not been perfect. But it has become arguably the most democratic institution in the broader federal governing apparatus.
For more than a century, the Constitution’s vision of “government of, by, and for the people” was being redeemed by our regulatory system. And the new Trump executive order now threatens to throw all this away with just a few paragraphs.
Musk’s whims, as effectuated by the DOGE Team Leads, will dictate which of our existing rules remain in place, despite the public’s hard-fought battles to put them there. And the public’s calls for new safeguards will go unheeded, unless Musk happens to give his imprimatur.
The only solace is that this is merely an executive order – a glorified press release. Given that its provisions are blatantly illegal, it should be rejected by our elected officials in Congress and, if necessary, by the judiciary. We the people fought to build our regulatory system. Now, we will have to fight to keep it.
