Can Elon Musk Use DOGE to Dismantle the FDA?

As the new Presidential administration takes shape, much of the attention has been on Elon Musk. Using an Executive Order, the President established the Department of Government Efficiency to implement the President’s DOGE Agenda. It appears Mr. Musk’s appointment wasn’t subject to confirmation by the U.S. Senate. As discussed below, this may limit the actions DOGE can take directly.

Can the FDA be Shut Down?

This is a question suddenly confronting a number of Federal agencies following news that Mr. Musk shuttered USAID and there are potential plans to close the Department of Education. Those actions are likely to face a number of lawsuits. The difficulty in closing a Federal agency is that many are created by statue, a law passed by Congress.

This is certainly the case for the Food and Drug Administration, which was created in 1908 when Congress passed the Pure Food Act. Readers can learn more about the history of the FDA by reading Food Law and Regulation for Non-Lawyers. It would seem easily challenged if the Executive Branch through Mr. Musk, or the HHS Secretary when confirmed, to simply repeal an Act of Congress.

What About FDA Regulations?

The concern about career civil servants rather than Senate-confirmed officers creating regulations or withdrawing rules and regulations is a longstanding topic of discussion. For example, the Pacific Legal Foundation published a report in 2019 investigating the unconstitutional issuance of regulations by the FDA. It found a significant majority of regulations were issued unlawfully by career employees rather than Senate-confirmed officers, violating the Appointments Clause of the U.S. Constitution.

The text of the Appointments Clause recognizes two levels of officers and specifies how each may be appointed. Principal Officers are appointed and confirmed by the Senate, creating a democratic link and further accountability to the American people.

Mr. Musk has not been confirmed by the Senate and, therefore, is not a Principal Officer. This, in theory, should limit the activities he could take directly in creating and/or disassembling any FDA regulations, such as the Deeming Regulation. If such actions were taken, then it would likely be ripe for a challenge under the Appointments Clause. The issue would be different if DOGE recommended certain actions be taken, or assigns responsibility for the action, to a Principal Officer. In that case, it may depend on the underlying statute or other limitations, such as reliance interests or Administrative Procedures Act limitations. Utimately, it would be a question for the Federal court system to decide.

Well, it’s clear Mr. Musk may be intent on disrupting the status quo of the Executive Branch, but it is less clear what wholesale changes can be made to an Agency like the FDA.