President Trump on Tuesday signed an executive order to give the president greater power over independent regulatory agencies — government entities Congress set up to be shielded from White House control.
Well-known independent regulatory agencies include the Consumer Product Safety Commission, which issues recalls and safety warnings; the Securities and Exchange Commission, which oversees markets; and the Federal Deposit Insurance Corporation, which insures bank deposits.
Trump's order specifically exempts the Federal Reserve's Board of Governors and Open Market Committee.
The Federal Reserve, which sets monetary policy, is intentionally designed to be independent from the whims of electoral politics, a separation considered central to its ability to stabilize the economy.
The order calls for the affected agencies to submit any new regulations to the White House, set up White House Liaison offices, and "regularly consult with and coordinate policies and priorities" with the White House. In claiming this new power over agencies, the order also gives the president and attorney general the sole abilities to interpret laws for the executive branch. The order stands as yet another example of Trump's pushes to aggressively expand executive power.
Expanded presidential power
"Given Trump's insistence on complete loyalty to him on the part of all government employees, this move is designed to extend his grip on the government to areas that previously have been nonpartisan," said Daniel Farber, a law professor at University of California, Berkeley, who clerked for the moderate Supreme Court Justice John Paul Stevens, in an email.
Trump has already fired high-ranking officials at independent agencies including the Equal Employment Opportunity Commission and the National Labor Relations Board, and also more than a dozen inspectors general at independent agencies. Those decisions have already sparked lawsuits against the administration that claim the firings were illegal. This order could result in related legal action.
The White House has had the power to review the regulations of government agencies for more than 30 years, since President Clinton signed an executive order calling for regulatory review. However, the policy has long exempted independent regulatory agencies.
Project 2025
At the center of Trump's new executive order is Russell Vought, director of the Office of Management and Budget. As acting director of the Consumer Financial Protection Bureau, he recently mandated that all staff "stop performing any work tasks."
Vought advocated against the concept of independent agencies in an interview with far-right broadcaster Tucker Carlson shortly after Trump's November election.
"There are no independent agencies. Congress may have viewed them as such, SEC or the FCC, CFPB, the whole alphabet soup, but that is not something that the Constitution understands," he said. "So there may be different strategies with each one of them about how you dismantle them. But as an administration, the whole notion of an independent agency should be thrown out."
The prospect of bringing independent agencies under White House control is laid out in Project 2025, the conservative Heritage Foundation's blueprint for government that Trump tried to distance himself from during the campaign.
Project 2025 references a 1935 Supreme Court decision, Humphrey's Executor v. US, in which the court decided that a president cannot fire the head of an independent agency. Project 2025's chapter on the Department of Justice argues that that decision violates the separation of powers.
In Trump's first term, his White House asked the Justice Department for an opinion on whether he could make independent agencies submit to White House regulatory review. The DOJ said yes, but Trump did not pursue that.
A sympathetic Supreme Court?
Saikrishna Prakash, a law professor at the University of Virginia who clerked for the conservative Justice Clarence Thomas, takes the view that the president has the power to fire heads of independent agencies. He also says he believes the current Supreme Court is likely to agree with Trump.
"I think the court has been saying for years that Congress can't give for-cause protections to these agencies," he said. "I think the handwriting's on the wall."
Indeed, the Supreme Court, which has a 6-3 conservative supermajority, has for years been eroding the power of regulatory agencies. Five of its six conservatives have during their careers served as White House lawyers.
The practical results of this executive order could be far-reaching, said UC-Berkeley's Farber.
"One result will be to give the president much more control over the financial sector, especially via the SEC," Farber said, adding that via the NLRB and FTC, Trump would also have more control over labor and trade, respectively. The ultimate result, he said could be regulatory whiplash.
"The Commission system has given these areas of the law some degree of stability, so the rules don't completely flip after every election," Farber said. "That would change under Trump's order."
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