Trump’s Independent Agency Order Strikes at Model Congress Made

President Donald Trump’s executive order imposing sweeping new limits on independent agencies undercuts their congressional protections against political influence.

Trump declared that he has vast control over dozens of such agencies, including the Securities and Exchange Commission and the Federal Trade Commission, that historically operated outside direct presidential authority. He laid out mechanisms to direct their rulemaking, policy agendas, spending, and interpretations of the law.

“The combined effect of all of these changes is that there would functionally be no more independent agencies,” said Lauren McFerran, the former chair of the National Labor Relations Board who’s now a senior fellow at The Century Foundation. “From a 30,000-foot perspective, I can’t overemphasize how different these practices are from the status quo.”

Trump excepted the Federal Reserve System’s Board of Governors and the Federal Open Market Committee’s handling of monetary policy from his Feb. 18 directive. It otherwise applies to a wide swath of the administrative state, including the Federal Election Commission and the Federal Communications Commission, as well as the NLRB, the SEC, and the FTC.

The White House said the order would “restore constitutional governance and accountability to the entire executive branch.”

The agencies “will no longer impose rules on the American people without oversight or accountability,” the White House said.

Independent agencies were designed to have some autonomy from the White House to act on the public’s behalf, not according to the personal interests of the president and his party, administrative law scholars said.

Trump’s order—like his firings of agency leaders and mass layoffs of government workers—explicitly moves the government away from that neutral governance model, scholars said.

“We have categorically rejected politics as a form of favoritism,” said Cary Coglianese, a law professor who directs the University of Pennsylvania Carey Law School’s program on regulation. “The executive order invites that kind of politics back into government in a wholesale manner.”

New Levers of Power

The directive calls for the president and the attorney general to “provide authoritative interpretations of the law.” That section explicitly applies to regulations, guidance, and litigation positions, while also raising the potential for Trump to dictate to adjudicative agencies how they should read the law and decide individual disputes.

Independent agencies will have to submit their rulemaking proposals to the White House’s Office of Information and Regulatory Affairs, just as cabinet agencies have had to do for decades. That administrative requirement gives the White House centralized control over any new regulations.

The White House’s Office of Management and Budget also will control agency spending under the order, by prohibiting expenditures on “particular activities, functions, projects, or objects” if they clash with the president’s policies and priorities.

That part of the order echoes President Bill Clinton’s use of the line-item veto to unilaterally control outlays, as well as Congress’s use of budget riders to constrain agencies’ policy choices, said Kevin Stack, an administrative law professor at Vanderbilt University.

To help coordinate, independent agency leaders are supposed to regularly consult with the White House, including through newly established liaisons in their agencies.

Agency Firings

The executive order came on top of Trump’s unprecedented terminations of agency leaders at the NLRB, Equal Employment Opportunity Commission, Federal Labor Relations Authority, Merit Systems Protection Board, and Office of Special Counsel. Trump fired those officials despite laws barring such dismissals without cause.

While executive orders assert the authority of the president, they don’t create binding law. The power to fire independent agency leaders is necessary to enforce Trump’s framework for controlling the agencies.

Litigation over several of those firings is ongoing, with the Trump administration already pressing the US Supreme Court to say whether Trump could arbitrarily remove the OSC head.

“This executive order is based on the premise that there is no such thing as an independent agency that disagrees with the president,” said Neal Devins, a professor of law and government at the College of William & Mary. “It’s formalizing what was clearly the message when he acted with respect to the firings.”