Presidential authority over federal agencies
Is Trump’s order expanding control over independent agencies the right move? Viewpoints from multiple sides.
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What’s happening
Last week, President Trump signed the “Ensuring Accountability for All Agencies” executive order, which aims to bring independent federal agencies under tighter presidential authority. The order argues independent regulators have historically been given too much autonomy and seeks to “ensure Presidential supervision and control of the entire executive branch.”
What are independent agencies: Independent agencies are entities established by Congress to administer certain elements of federal law (e.g., regulating specific sectors) without being under direct presidential control. There are roughly 19 independent agencies subject to Trump’s order, with prominent examples including the Federal Trade Commission (FTC), the Securities and Exchange Commission (SEC), the Federal Election Commission (FEC), and the Federal Reserve.
Most independent agencies are led by multi-member boards (the Consumer Financial Protection Bureau (CFPB), led by a single director, is a notable exception). Board members are appointed by the president but confirmed by the Senate. There are often limitations on the number of board members allowed from each party and leaders usually serve fixed, staggered terms designed to be insulated from presidential politics. Presidents cannot remove leaders at will, the key feature that makes them independent.
Executive agencies, by contrast, usually consist of one leader that reports directly to the president and can be removed at any time. The 15 executive departments (and their hundreds of sub-agencies) are executive agencies, including the Department of Justice (DOJ), Department of Defense (DOD), and Department of Energy (DOE).
What the order changes: Trump’s order requires all independent agencies to submit significant proposed or final regulations to the White House for review before they’re published, and gives the White House’s Office of Management and Budget (OMB) greater influence over agency budgets with a mandate to evaluate agency leaders on new performance standards. It also establishes the president and attorney general (who leads the DOJ) as the sole interpreters of laws for the executive branch, barring any agency from advancing a legal view divergent from their position without permission.
Notably, the order exempts the Federal Reserve’s setting of monetary policy and interest rates from the White House’s control.
Implications: The order comes amid Trump’s broader push to expand presidential authority, including notable firings of leaders at the National Labor Relations Board (NLRB), Equal Employment Opportunity Commission (EEOC), and Federal Election Commission (FEC). Those firings, along with the new order, are being met by lawsuits from various groups alleging they violate federal law.
Some observers have called Trump’s order the most significant action he’s taken so far, and his push to expand presidential authority is likely to have major implications on the impact of his presidency. This week, we bring you the viewpoints from multiple sides. Let us know what you think in the comments.
Notable viewpoints
More supportive of Trump’s order:
The order is aligned to the Constitution.
The independence of some agencies from presidential oversight runs counter to Article II of the Constitution requiring the president to “take Care that the Laws be faithfully executed,” which should be interpreted to give the president ultimate authority over all activities – and therefore, all agencies – within the executive branch.
Recent Supreme Court precedent in Seila Law LLC v. Consumer Financial Protection Bureau (2020) supports the Constitutional requirement for presidential oversight over independent agencies. It ruled that because the sole director of the CFPB wields “rulemaking, enforcement, and adjudicatory authority over a significant portion of the US economy,” the president has the power to remove them for any cause. While the ruling did not reverse the CFPB’s independence, the majority opinion by Chief Justice John Roberts said the president’s power to “remove – and thus supervise – those who wield executive power” follows from the Constitution.
The Supreme Court ruling in Humphrey’s Executor v. US (1935) – which blocked the president from being able to remove the head of the FTC for any reason “except for cause” given its determination the agency only wielded “quasi-legislative or quasi-judicial powers” (i.e., not executive powers) – is outdated. In today’s reality, the FTC and other independent agencies exercise true executive power and should be subject to presidential oversight.
The semi-autonomous status of independent agencies undermines democratic principles and effectively creates a “fourth branch of government” that is answerable to nobody.
The order will improve agency accountability and transparency.
“The larger significance of all this is political accountability. The President is elected and thus accountable to the public in a way that heads of agencies aren’t. Yet these bureaucracies have vast power over the lives and livelihoods of Americans. When they exceed their authority, a President should be able to hear and represent public complaints.” (Wall Street Journal Editorial Board.)
Trump’s order will improve transparency and help formalize the “shadow” oversight presidents already exercise over independent agencies. For instance, Former President Obama “endorsed” tighter regulations of broadband providers, which his FCC Chair Tom Wheeler eventually implemented. Former President Biden signed orders “encouraging” various independent agencies to implement regulations and they eventually did.
The independent agencies – while nonpartisan in theory and design – are not nonpartisan in practice. They are controlled by whichever party has the majority of appointed board members and they frequently act in a partisan manner, making them unaccountable to the American people.
The order will improve regulatory and economic efficiency.
Trump’s order will promote uniformity in the applications of federal law and prevent uncertainty from conflicting agency positions. For example, in 2019, Trump’s first-term DOJ (an executive agency) opposed an antitrust prosecution brought by the FTC (an independent agency) against Qualcomm, causing unnecessary uncertainty for stakeholders in the case.
The order will help curb overregulation by independent agencies and drive a positive economic impact on businesses, workers, and households. For instance, sectors such as banking, communications, energy, and shipping are all affected by independent agency regulations and can be made more efficient through alignment to Trump’s agenda. University of Chicago economist Casey Mulligan found that the collective regulatory cost savings from 8 years of President Trump’s regulatory reform initiatives during his first term would have saved an equivalent of $80,000 per household compared to Biden’s approach.
More opposed to Trump’s order:
Independent agencies are constitutional and a product of congressional design.
Allowing Trump’s order to stand would reverse 100+ years of practice and judicial precedent supporting the operation of independent agencies. In particular, the Supreme Court acknowledged the constitutionality of independent agencies in Humphrey’s Executor v. US (1935), which ruled the president could not fire the FTC commissioner for political reasons, ultimately permitting Congress to create agencies that operate outside of presidential oversight.
Trump’s order violates the Necessary and Proper Clause of the Constitution, which empowers Congress to structure the government and thereby establish independent agencies within it.
Congress deliberately established agencies such as the FTC and SEC to operate independently of presidential control in order to prevent political interference with important functions such as regulating business competition and financial markets.
The order consolidates too much power under the president.
On top of Trump’s appointment of Russ Vought – a proponent of “unitary executive theory” (a constitutional theory that states the president should have sole authority over the executive branch) – as OMB director and the apparent lack of interest in exercising legislative authority among congressional Republicans, the order pushes the federal government dangerously close to an autocracy that operates at the will of the president.
Along with his recent illegal firings of federal agency commissioners including National Labor Relations Board (NLRB) member Gwynne Wilcox, Trump’s order marks an unprecedented power grab that seems deliberately intended to force the Supreme Court to make a ruling on the limits of presidential power.
“Many recent presidents seem to believe in the unitary executive theory to some degree. But the presidents before Trump were not trying to establish a dictatorship and therefore limited their attacks or left alone agencies that protect democracy, regulate finance…, or protect labor.” (David M Driesen, professor at Syracuse University College of Law.)
The order will weaken regulatory effectiveness and enable corporate favoritism.
Consolidating control of independent agencies under the president could enable more autocratic rule and drive significant consequences. For example, the president could hypothetically order the SEC to back off securities law enforcement against companies friendly to the president, enabling them to defraud investors without consequence. Or the president could instruct the FTC to halt antitrust investigations into the businesses of allies, enabling them to operate monopolies.
“Trump’s EO would dissolve [agency] independence and put the agencies under Trump’s thumb, ensuring they turn a blind eye to wrongdoing by favored corporations and leave consumers and investors out to dry…Not incidentally, both the FTC and SEC have ongoing investigations or enforcement actions against companies owned by Elon Musk.” (Robert Weissman, co-president of Public Citizen.)
Consolidating independent agency power under the president, paired with last year’s Supreme Court reversal of the Chevron v. Natural Resources Defense Council (1984) ruling (which weakened the authority of federal agencies), would enable corporate power to continue growing unchecked because Trump could override any agency’s attempt to challenge it.
Other viewpoints:
“As I read it, [the order] will stick only if the court agrees to embrace a robust version of the so-called unitary executive theory (UET), holding in effect that the creation of the independent agencies was a constitutional mistake and that they should be folded into the Executive Branch.” (Walter Olson, CATO Institute.)
“Because Humphrey’s Executor already is weakened and the FTC and other multi-member agencies perform executive functions, Trump likely will extend his policy preferences over them. Expect a lot of drama, challenged firings, and appeals to the Supreme Court to test the executive order, the constitutionality of multi-member independent agencies, and whether the president may remove their commissioners at will.” (John Shu, Bloomberg Law.)
Be heard
We want to hear from you! Comment below with your perspective on Trump’s executive order and we may feature it in our socials or future newsletters. Below are topic ideas to consider.
Do you support or oppose Trump’s order to expand presidential authority over independent agencies?
What are some arguments or supporting points you appreciate about a viewpoint you disagree with?
Snippets
A White House meeting between Ukrainian President Volodymyr Zelensky, President Donald Trump, and Vice President JD Vance ended abruptly after tense exchanges between Zelensky and the American leaders. The meeting was intended to solidify a proposed mineral rights deal, but Zelensky left the White House without the agreement formalized. Trump later said on Truth Social that Zelensky “can come back when he is ready for Peace.”
Washington Post Opinions editor David Shipley resigned in the wake of the paper’s owner, Jeff Bezos, announcing the Opinions section would shift to focus on “defense of two pillars: personal liberties and free markets.” The shift in editorial posture comes 4 months after Bezos decided to kill the paper’s planned endorsement of Kamala Harris for president, which also met opposition from some staffers.
President Trump said 25% tariffs on goods from Mexico and Canada would take effect as planned on Tuesday, March 4, given illicit drugs are still entering the US from those countries. He also said he would double the 10% tariff on goods from China to 20% starting on that date while his administration encouraged Mexico and Canada to impose similar tariffs on China.
The Department of Defense issued a memo ordering Pentagon officials to identify and fire transgender members of the military. The order comes after the Trump administration announced earlier this month it would not allow transgender people to enter the military nor support gender transition procedures for active members.
The Trump administration said it will cancel 92% of foreign aid contracts issued by the US Agency for International Development (USAID) along with $60B in international assistance. (See our previous coverage of the arguments around the USAID crackdown.)
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Music on the bottom
This week, we go deep into the Dave Matthews Band archives. Enjoy this live acoustic version of “Fool To Think,” a personal favorite.
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Great presentation of the pertinent viewpoints on both sides of this historically important development. While I can see the logic behind several of the viewpoints in favor of the Executive Order, what the proponents of those viewpoints fail to acknowledge is that the Order is one more step by President Trump to move our country away from a democracy and toward an autocracy. As pointed out by some supporters of the Order, other Presidents have waded into the water of exerting influence over one or more of the independent agencies; however, none have dived into that water with so much splash. The Presindent's intentions could not be any clearer. The opinion Newsweek article by Traci Feit Love, to which I linked from this Framechange issue, conveys exactly what I think we all need to understand about this and other recently promulgated Executive Orders by the President.