UJ
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President Donald Trump’s executive order seeks to exert significantly more control over independent federal agencies, relying on a constitutionally dubious theory that presidents since Ronald Reagan have examined—but ultimately dismissed.
In an expansive executive order issued on Tuesday, Trump instructed the White House to evaluate regulations at agencies like the Securities and Exchange Commission, the Federal Trade Commission, and others that wield considerable power over areas ranging from shipping routes to nuclear energy.
This order is part of Trump’s larger agenda to centralize authority over independent agencies, which Congress aimed to keep insulated from direct presidential influence. This move follows a series of contentious dismissals at those agencies that are being contested in federal courts, including the Supreme Court.
Here’s what you should understand about Trump’s latest executive order:
Congress established independent agencies to ensure that certain governmental tasks—such as regulating elections or overseeing financial markets—could be carried out without direct control from the presidency.
For example, the Securities and Exchange Commission has recently mandated that publicly traded companies disclose more information regarding their internal practices to regulators. The Federal Trade Commission oversees antitrust legislation, while the Federal Election Commission enforces campaign finance regulations, such as limits on donations and spending.
However, the desire for independence clashes with a long-held theory in conservative legal circles asserting that the president should exert almost complete authority over the executive branch and its personnel. This perspective has found increasing traction with the current 6-3 conservative majority on the Supreme Court.
“For at least a century, we’ve recognized that certain federal agency actions should be insulated from political influence as much as possible,” stated Christopher Walker, a law professor at the University of Michigan and an expert in administrative law.
Questions surrounding the constitutionality or legality of Trump’s actions have persisted over time, Walker noted.
“Personally, I don’t believe it is,” he added. “But is it a significant shift? Absolutely.”
In general, federal agencies must submit proposed regulations to the Office of Management and Budget, a part of the White House. This includes departments such as the Department of Energy, the Department of Transportation, and the Pentagon. When President Ronald Reagan formalized that review process in the early 1980s, his administration contemplated extending it to independent agencies as well.
Ultimately, the Reagan administration opted against this approach.
Trump’s own Department of Justice considered the matter during his first term in 2019 and concluded that nothing legally prevented the President from doing so.
Nevertheless, the administration did not pursue the policy at that time.
Trump’s new order mandates that a significant array of independent agencies submit regulations for review. The White House explained that these and similar agencies hold “immense power over the American populace without presidential oversight.” According to the White House, these agencies “implement rules and regulations that incur billions in costs and concern some of the most contentious policy issues.”
Public Citizen, a progressive advocacy organization, has condemned this move as “illegal” and a significant “windfall for corporate interests.”
“This poses a grave threat to the nation’s public health, safety, environment, and economy – and to our democracy. Congress established independent agencies to be free from White House control for valid reasons,” said Robert Weissman, co-president of Public Citizen, in a statement.
Beyond merely regulatory review, Trump’s order also requires increased everyday involvement from the White House in the activities of independent agencies. The directive calls for representatives from the White House to liaise with these agencies and obligates their leaders to “frequently collaborate and synchronize policies.”
“That’s quite unprecedented,” remarked Daniel Walters, a law professor at Texas A&M University who specializes in administrative law. “This implies a genuine interest in constraining independent agencies.”
Several independent agencies, including the SEC and the FEC, opted not to comment when contacted by UJ on Wednesday.
This order is closely related to the White House’s effort to dismiss the leaders of various independent agencies, especially those situated to oppose the president’s policy objectives.
The Supreme Court is currently addressing the case concerning Hampton Dellinger, a special counsel recently dismissed by Trump. Dellinger was appointed by President Joe Biden to investigate claims of whistleblower retaliation within the federal government. His agency may impede Trump’s efforts to significantly reduce the federal workforce.
(This office operates independently from special counsels like Jack Smith or Robert Mueller, who were tasked with overseeing politically sensitive investigations for the Justice Department.)
Congress included safeguards for this position, requiring a president to demonstrate “inefficiency, neglect of duty, or malfeasance in office” prior to firing the special counsel. Trump did not cite any of these grounds for dismissing Dellinger, and his Justice Department recently claimed that Congressional mandates are unconstitutional.
The Supreme Court could render a decision on a preliminary matter in that case at any moment.
Trump has also dismissed other leaders from independent agencies in similar circumstances. A federal judge temporarily prohibited the White House from removing the chair of the federal Merit Systems Protection Board. Another court is deliberating Trump’s dismissal of a member from the National Labor Relations Board.
The lawsuits against those dismissals hinge partly on a seminal Supreme Court ruling from 1935, Humphrey’s Executor v. US, which permits Congress to require presidents to show cause, such as malfeasance, before terminating board members overseeing independent agencies.
However, in recent years, the Supreme Court’s conservative justices have distanced themselves from that precedent, particularly in a 2020 ruling involving the Consumer Financial Protection Bureau. In that case, Seila Law v. CFPB, the court determined that protections for the CFPB’s director infringed upon principles of separation of powers. This controversial agency, which was established in response to the 2008 financial crisis and was largely envisioned by Democratic Senator Elizabeth Warren, has enacted consumer-friendly regulations on mortgages, car loans, and credit cards.
The president’s authority to “remove—and thereby supervise—those wielding executive power” is grounded in the Constitution, Chief Justice John Roberts wrote for the majority.
“The CFPB director has no superior, colleagues, or electorate,” Roberts stated. “Yet the director commands extensive rulemaking, enforcement, and adjudicatory authority over a significant segment of the U.S. economy.”
Notably, Trump’s order exempts much of the Federal Reserve from its stipulations. During his first term, Trump frequently clashed with the Fed’s leadership regarding interest rate policies.
Experts assert that the Fed exemplifies the rationale behind Congress’s long-standing desire to establish independent agencies. If a president had dominion over the Fed’s monetary policy, he might press for lower interest rates to spur the economy during an election year, regardless of potential negative repercussions, such as inflation, that may ensue afterward.
By excluding the Fed, the White House appears to be sidestepping a legal clash that might prove overly ambitious for a conservative Supreme Court.
Legally speaking, experts contend there’s little distinguishing the Federal Reserve from the other independent agencies targeted by Trump’s order.
Walker emphasized the substantial advantages of having the Office of Management and Budget review governmental regulations, especially in terms of ensuring the integrity of the processes used by agencies to draft these policies. It provides an additional perspective to review what are often complex regulations with significant national implications.
“From a bureaucratic standpoint, I support this move,” Walker affirmed. “What concerns me is the potential for politicization of the process.”
A particular section of Trump’s executive order appears to extend beyond independent agencies, prompting significant scrutiny from the president’s opponents on social media.
Hidden within the order is language suggesting that the president and the attorney general “shall provide authoritative interpretations of law for the executive branch.” Some interpret this to imply that he would have sole authority over legal interpretations.
Trump may find this concept appealing—he recently asserted on social media that, “he who saves his country does not violate any Law”—but an executive order does not carry the weight of law and thus does not alter the constitutional checks and balances.
It appears the White House intended for independent agencies to interpret laws in alignment with the broader administrative perspective. In the scenario involving Dellinger, for instance, this has not occurred.
“The President and the Attorney General (under the President’s oversight) will interpret the law for the executive branch, rather than having individual agencies adopt conflicting interpretations,” the White House noted in a fact sheet detailing this provision.
UJ’s Kit Maher and Fredreka Schouten contributed to this report
