DOGE Goes Deep State
A smaller government with a more powerful set of unaccountable executive officials is unlikely to be much of a win for liberty.
For much of the past decade, President Donald Trump and his allies have been waging a war against the so-called "deep state"—and the conflict has only escalated since Trump's return to power.
There's no official definition of the term, of course. Loosely, the deep state is the collection of bureaucrats, contractors, intelligence officials, and other official or even quasi-official entities that more-or-less retain their power no matter who occupies the White House or which party controls Congress. But it's more specific than that. Implicit in talk about the deep state is the idea that certain individuals outside the official chain of command wield the true power in the federal government, and that they frequently ignore or thwart the will of the people's elected and appointed representatives. In a nutshell, the deep state is undemocratic and unaccountable, even to powerful figures in the federal government.
Trump has cast the deep state as one of the chief antagonists of his populist movement, in no small part because such movements always require enemies (and the less well-defined the better). Much of what the second Trump administration has done so far—from the mass firings of federal employees to the appointment of unorthodox leaders at the Pentagon, FBI, and other key outposts—is probably best understood as a direct assault upon this perceived opponent.
But at the same time that he's focused on dismantling the deep state, Trump seems to have built his own undemocratic, unaccountable executive apparatus.
How else should we view the incident that The Washington Post reported on last week involving Elon Musk, the unofficial head of the White House's Department of Government Efficiency (DOGE), and Secretary of State Marco Rubio?
As DOGE was slashing its way through the U.S. Agency for International Development (USAID), Rubio issued a waiver ensuring that "existing life-saving humanitarian assistance programs" should continue, despite the announced shutdown of USAID. "Several times, USAID managers prepared packages of these payments and got the agency's interim leaders to sign off on them with support from the White House," the Post reported. "But each time, using their new gatekeeping powers and clearly acting on orders from Musk or one of his lieutenants, [Luke] Farritor and [Gavin] Kliger would veto the payments—a process that required them to manually check boxes in the payment system one at a time, the same tedious way you probably pay your bills online."
As a result, USAID clinics that were supposed to be protected by Rubio's order were shuttered.
That is an almost perfect illustration of how conservatives used to believe the deep state operated—with unelected, unofficial back-channel operatives overruling the plainly stated instructions of those who are nominally in power.
And, sure, much of USAID's spending seems to have been wasteful and in need of a thorough audit, if not a serious cut. Yes, you can also make whatever jokes you'd like about Rubio getting exactly what he deserves for becoming Trump's lackey.
Still, this should be worrying to anyone who takes seriously the threat of the deep state or values the rule of law.
Whatever your views of Musk and Rubio as individuals, it simply cannot be that the Senate-confirmed secretary of state is having his decisions overruled by a man (or his lieutenants) who still lacks any official place in the White House's organizational chart and who runs a rebranded version of the U.S. Digital Service, an agency meant to streamline the executive branch's digital outreach efforts that has no statutory authority to make spending decisions.
It's an encouraging sign that some Republicans are upset about this.
"Now that Marco is confirmed and in place, there should be nobody in the administration—outside of the president of the United States or at the direction of the president—that should pause, delay, or cancel anything Marco thinks is in our best national interest," Sen. Thom Tillis (R–N.C.) told NOTUS last week in response to a question about the Rubio/Musk turf war. Tillis also chalked up the incident to a case of having "a lot of cooks in the kitchen" but said there should be no doubt that Rubio, in this case, is "head chef."
Maybe it was all just a mix-up. But while the situation with USAID and Rubio is the most high-profile, it is not the only example of DOGE and Musk operating like the very deep state Republicans used to criticize.
Take, for another example, how the Trump administration is working to exempt DOGE from the Freedom of Information Act (FOIA). As Reason's C.J. Ciaramella reported, Justice Department lawyers are now arguing that the DOGE does not have to respond to FOIA requests because it is no longer part of the White House Office of Management and Budget (OMB).
Much of the office of the president is exempt from FOIA (the OMB is a bit of an outlier), but that maneuver still "runs contrary to Trump and Elon Musk's promises and stated goals of delivering open, transparent government to the public," Ciaramella wrote. Indeed, Musk has claimed that "all aspects of the government must be fully transparent and accountable to the people," Musk posted on X earlier this month. "No exceptions."
Well, some exceptions, apparently.
Musk's role within the executive branch is starting to look every bit as vague and unaccountable as the shadowy deep state operatives that Trump campaigned against—and that lack of clarity might soon undermine some of what DOGE has accomplished. In a statement to a U.S. district judge in February, a White House attorney explained that Musk is a "special government employee" and an adviser to the president, not the actual head of the DOGE or even an employee of the department.
So who is running things? The White House said last week that Amy Gleason is now the administrator of the DOGE project. But Musk remains the face of the effort, and federal judges assessing the legality of DOGE's actions seem to have questions about the chain of command.
"Based on the limited record I have before me, I have some concerns about the constitutionality of U.S.D.S.'s structure and operations," Judge Colleen Kollar-Kotelly said during a hearing in the federal district court last week. The New York Times notes that she "expressed particular concern that [Musk's role] violated the appointments clause of the Constitution, which requires leaders of federal agencies to be nominated by the president and confirmed by the Senate."
You have to assume that other federal judges hearing other legal and constitutional challenges to DOGE's spending cuts will soon be asking similar questions. Even if the Trump administration can fall back on the claim that those changes are authorized by the Office of Personnel Management (OPM), judges are likely to look less favorably on these maneuvers if they appear to be happening on the orders of someone who holds no actual power (and, don't forget, runs a business empire that's significantly funded by government contracts).
Overruling the decisions made by legally appointed officials. Dodging transparency. Refusing to identify who is running the show. Are Musk and the DOGE just the deep state by a different name?
Some clarity and transparency from the White House about Musk's official status and the limits of DOGE's powers would go a long way toward establishing the necessary constitutional credibility to make any of these cuts stick—and would have practical benefits too, like clearing up whether federal workers are supposed to respond to his emailed demands.
It is fair to point out, as Reason's Christian Britschgi has, that Musk is not the first personal adviser to the president who has occupied an unclear and constitutionally dubious role while exercising vast, unofficial powers from the White House.
But Trump promised to demolish the deep state, not reshuffle the seating chart. Instead, he seems to be delivering a new version of the deep state, but one oriented toward conservative ends—which is, in fairness, what some conservatives wanted.
That might be good enough for some Republicans who can't see past the next election. Principled conservatives and libertarians, however, should balk at the constitutionally dubious nature of all this and recognize that a smaller government with a more powerful set of unaccountable executive officials is unlikely to be much of a win for liberty.
