Donald Trump is setting his sights on a critical target if he wins: independent federal agencies.
There are dozens of these agencies, often known by their three- or four-letter acronyms. Some are obscure. Others, like the Federal Reserve, the Federal Communications Commission, the Securities and Exchange Commission, and the National Labor Relations Board, are well known. Unlike executive branch agencies, these entities tend to be bipartisan or apolitical, and report to Congress.
The former President’s campaign trumpets a move to bring the key regulatory bodies “under presidential authority,” framing it as part of a broader assault on the “administrative state” and an attempt to “liberate” America from “Biden’s regulatory onslaught.”
“These agencies do not get to become a fourth branch of government,” Trump’s campaign website declares.
The rhetoric portends the worst excesses of a potential Trump presidency: the corruption of the independent, evidence-based agencies, many of them products of the New Deal era and beloved by liberal America — and the abuse of their power for political ends. The plans align neatly with Trump’s promises to shift the apparatus of government towards “retribution,” teasing criminal cases against his political opponents and suggesting that he would be a “dictator on day one.”
But as with many of Trump’s proclamations and plans, the reality of what he might attempt and of what he might ultimately accomplish remains far less clear. And for him, the fear that such plans instill in his opponents is part of the point.
Experts told TPM that the bark of Trump’s plan for the independent agencies appears to exceed its potential bite. It’s far from clear how what Trump is proposing to require of the independent agencies would work in practice, and whether it would hold up in court.
Trump laid out the plan in a video appearance last year, where he promised to issue an executive order requiring independent agencies to submit any regulation to the White House for review.
“It’s a bulwark against future regulation,” Tom McGarrity, a scholar of administrative law at the University of Texas School of Law, told TPM.
The independent agency idea is only one piece of the sweeping use of executive action Trump has laid out for a potential second term. On day one, he has said, the White House would issue a raft of orders aimed at remaking the country as we know it, including an attempt to strip away the Constitution’s guarantee of birthright citizenship. Other powers that Trump would assume upon taking office include that of federal law enforcement; he has repeatedly promised to use that to punish his enemies and bring the cases against him to an end.
Of the many ideas tossed out, however, the independent agencies gambit appears to be among the more difficult to accomplish — and may, for now, be tossed in primarily to stoke outrage and fear in his opponents while throwing a bone to supporters of his deregulatory agenda. Designed by statute to have bipartisan leadership and limit the president’s ability to fire their heads, the agencies promulgate regulations that impact nearly every area of American life: They are charged, for example, with keeping pharmaceuticals safe, markets free of fraud, and competition roaring. They form the mainstay of a vision of government rooted in the progressive era in which, UPenn media professor Victor Pickard told TPM, the idea was to insulate the agencies from any one concentration of power.
“It’s a way to create a countervailing force in society that forces these industries and sectors to serve the public interest,” he said.
Key to their operation is their independence, largely guaranteed by the provision that the president cannot fire the agencies’ leaders except for a few enumerated reasons. Some of the independent agencies have other forms of autonomy, too. Lawmakers, for example, exempted most of the independent financial regulatory agencies, like the Securities and Exchange Commission, Federal Deposit Insurance Corporation, the Comptroller of the Currency, and others, from having to submit legislative recommendations to the White House before sending them on to Congress if the views expressed are those of the agency and “do not necessarily represent the views of the President.”
That independence would collide with what Trump is threatening: to place any new regulations under review by the Office of Management and Budget, the White House entity tasked with implementing the President’s policies.
The push is largely rooted in the conservative-backed “unitary executive theory,” which holds that the president wields power over the entire executive branch — even if Congress has enacted statutes limiting his authority in certain areas.
The proposed Trump order comes out of that theory. It’s been a conservative dream for a long time to erode the independence of these agencies, but it has known impediments: there’s nothing in statute which would authorize the president to issue or enforce such an order. That problem led Sen. Rob Portman (R-OH) to propose a bill, supported by Sen. Mark Warner (D-VA), in 2012 which would have had Congress state that a president could, in fact, issue an executive order mandating White House review of independent agency rules.
Trump reportedly considered issuing a version of the order towards the end of his term, and laid the groundwork for it. In October 2019, the DOJ’s Office of Legal Counsel issued an opinion saying that such a move would be legal, taking a Clinton-era executive order which only applied to non-independent agencies and holding that it could apply to the rest.
It’s easy for the OLC to say that it’s possible, but it’s far more difficult to imagine how the order might work in practice and whether it would survive the inevitable court challenges. Trump reportedly declined to issue the order during his term in part over concerns about how it could be implemented, and over market reaction to his placing the Fed under White House control.
Jonathan Adler, a professor at Case Western Law School, told TPM that the President’s inability to fire independent agency heads other than “for cause” makes it harder to enforce an executive order against any agency that might try to assert its independence. He outlined a scenario in which an agency — the FCC, for example — might refuse to submit regulations to the White House for review, prompting Trump to try to fire a commissioner.
“You then would have litigation over whether or not that removal was lawful, and that would raise some interesting questions about whether or not independent agencies can be independent,” Adler said. “But also the subsidiary question of failing to submit a rule for review could be cause for firing.”
There are other, more basic questions, at play. McGarrity, the University of Texas professor, said that the plan seemed “inconsistent with what Congress laid out in statute.” Even in a judiciary stacked with members favorable to the unitary executive theory, it’s not clear that the Trump administration would be able to defend regulations that had been first developed by independent agencies and subsequently altered by OIRA review.
And while it might succeed in gumming up the works of the regulatory state, the move would likely fall far short of Trump’s rhetoric, which hails it as an attempt to “put unelected bureaucrats back in their place.”
Rather, it would likely mark another attempt to whittle away at regulatory independence. And even if successful, the order would only affect new regulations, leaving other actions — like merger approval at the FTC and labor dispute resolution at the NLRB — untouched.
Kristin Hickman, a law professor at the University of Minnesota, said that while the executive order would be “controversial because the independents traditionally have not been subject to OIRA review,” it’s less clear how it might be challenged.
“If the President puts someone in position of the chair of an agency, and issues an executive order saying they want it to go through OIRA review, do you really think the agency head would object?” she remarked.
