Government policy failures are the leading cause of resource misallocation in the United States. They encompass the vast array of economic and social policy interventions that negatively affect the economy. Lawyers are arguably an important source of policy failures because they have more influence on government policy than any other profession. For example, there are more lawyers in Congress than any other occupation, and lawyers lay claim to an entire branch of government, the courts.
Given the existence of extensive policy failures, the creation of the Department of Government Efficiency (DOGE), under the sole leadership of Elon Musk following Vivek Ramaswamy’s exit, to recommend ways to increase government efficiency appears to be justified. However, the leaders’ slash and burn approach to regulations and government institutions ignores lawyers’ adverse influence on policy. They should help make lawyers’ influence improve the efficiency of public policy by recommending deregulation of the legal profession.
In principle, there are three ways that DOGE could improve government efficiency. First, it could recommend eliminating inefficient policies, such as federal agricultural subsidies, which continue to grow even though they are not justified on economic grounds and they transfer income from consumers to agricultural interests. Second, it could recommend that services provided by the public sector, such as air traffic control (ATC), be provided by the private sector to spur innovation and technological advance, thus improving air travel safety and speed. Third, it could recommend reforms of inefficient regulations, such as fuel economy standards, which should be replaced by a vehicle-miles-traveled fee to charge all motorists for their contributions to congestion, pollution, and accidents.
Recommending efficient policy improvements is the first step to improving government performance; overcoming lawyers’ influence on the policy process is a fundamental challenge for adopting those improvements. Philip Howard points out that lawyers share a philosophy of the correctness of the law, such as compliance with a rule, regardless of the law’s actual economic and social effects. Mark Miller argues that lawyers in government emphasize procedure and advocacy and the prosecutorial style of congressional hearings instead of a systematic, collaborative search for truth.
Government lawyers’ approach to policymaking suggests that it is unlikely that the above examples of efficient policy improvements would be adopted. Congressional legislation authorized agricultural subsidies; thus, the lawyer-heavy Congress must enact legislation to eliminate those subsides. Such legislation would follow hearings featuring testimony by advocates against eliminating agricultural subsidies and debates where history shows that economic efficiency arguments rarely carry the day.
Congress created the Federal Aviation Administration and gave it responsibility for providing ATC services and modernizing ATC technology. Congress would have to relieve the FAA of this responsibility to privatize ATC. Again, legislation would have to be enacted, preceded by hearings, advocacy, and debates that place little weight on economic efficiency.
Finally, fuel economy standards are set by a government agency, the National Highway Traffic Safety Administration (NHTSA), which was authorized by Congress to regulate fuel economy. To replace fuel economy standards with a VMT tax, Congress would have to relieve NHTSA of its authority and authorize the U.S. Department of Transportation to design and implement a VMT tax. Such action is unlikely because Congress ignored DOT’s lack of progress on a VMT pilot program that was included in the Bipartisan Infrastructure Law.
A new approach to improving government efficiency could potentially benefit the nation. But Musk is taking a counterproductive approach by pursuing suspending regulations, cutting the federal workforce, and removing government agencies to reduce federal spending by up to $2 trillion. Such recommendations ignore Congress’s responsibility for deciding the regulations to eliminate and the agencies and departments to dismantle.
Musk also overlooks that lawyers are claimants to the judicial branch of government. Judges uphold federal laws that specify the process for repealing or reforming federal policies. Thus, legal challenges to DOGE’s recommendations to circumvent the policy process by immediately ceasing enforcement of federal laws would prevail in court.
Although it is not possible to circumvent the influence that lawyers have on public policy, it is possible to help make their influence more constructive by ameliorating some educational and workplace limitations on lawyers who become policymakers. First, lawyers are educated in an environment where the American Bar Association’s accreditation policies do not encourage innovative courses of study, such as multidisciplinary programs, that could be designed to prepare lawyers who wish to pursue careers in government to think more broadly and carefully about public policy. As pointed out by Richard Posner, law is not a self-contained field of knowledge whose methods of reasoning can by themselves solve human problems in ways that best serve society.
Second, after being educated in a siloed environment, lawyers work in siloed environments where they do not regularly come into contact with colleagues who are trained in different disciplines and have valuable insights on formulating efficient and fair public policies. Combining government lawyers’ narrow and siloed education and work experience with a rigid belief in precedent contributes to status quo bias and the persistence of government policy failures.
Because lawyers are permanent inhabitants of the swamp, Musk should make constructive recommendations to improve lawyers’ effect on policy. Deregulation of U.S. industries brought together professionals with different intellectual backgrounds to contribute new ideas to advance the efficiency and innovativeness of those industries. Deregulation of the legal profession could expose lawyers to more professionals with different disciplinary backgrounds and experiences who could greatly enrich lawyers’ approach to policymaking. In addition, deregulation could encourage law schools to create new legal education programs that better prepare lawyers for a career in government. Even if deregulation only modestly improved government lawyers’ approach to policymaking, benefits would be large because of lawyers’ strong influence on government policy.
The remaining issue is, do President Trump, Vice-President Vance, and Musk believe the nation would benefit by improving lawyers’ influence on government policy? Or, as a Yale Law School graduate and two businesspeople who rely greatly on lawyers to represent their interests, do they believe some swamp inhabitants are inviolate?
