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Could a GOP president take over independent government agencies?

Here's what the law actually says.

- November 7, 2023
Donald Trump (cc 3.0) Gage Skidmore. Composite image via Canva.com.

“Contestants, start your thesauri!” It turns out there are lots of ways to express your desire to shut down, gut, destroy, defund, or (from Vivek Ramaswamy) declare “war on the federal administrative state.” And in the race for the GOP presidential nomination, candidates are straining their vocabularies in search of new ways to proclaim their dedication to that goal.

The plan to “totally obliterate the deep state,” as per former President Donald Trump’s entry in the competition, stems from a broader notion that no one in the executive branch should be buffered in any way from the will of the chief executive. “What we’re trying to do is identify the pockets of independence and seize them,” notes Russell Vought, one of the architects of a coalition of think-tanks’ blueprint for doing just that.

One piece of this effort, as I wrote in an earlier Good Authority post, involves trying to transform large numbers of career civil service employees into something far closer to political appointees who can be hired and fired at will. So today let’s look at another piece, one the Wall Street Journal recently noted takes aim at the so-called independent agencies. This category of government entities includes the U.S. Securities and Exchange Commission, the Federal Communications Commission, and the Federal Reserve board – these and others are defined as “independent regulatory agencies” in the U.S. Code. (For much more on the universe of such organizations, see political scientist Jennifer Selin’s comprehensive research on the matter.)

Some regulatory agencies are now insulated from presidential control

These regulatory agencies make important policy – but are insulated in various ways from presidential control. For one thing, they generally have multi-member boards whose members serve fixed, overlapping terms, and who can only be removed for cause: after some sort of professional malfeasance, not by presidential whim. Thus a given president cannot reorient the agency simply by terminating and replacing disagreeable board members. Even when a vacancy occurs, certain attributes attached to a position – required expertise or partisan affiliation – may further constrain presidential choice. For instance, of the Federal Election Commission’s six members, only three can be of a single political party. (Whether that leads to nonpartisan enforcement of election laws or just embarrassing non-enforcement of those laws is viewed through beholders’ glasses less likely to be rose-colored than polarized.)

Independent agencies may also evade other presidential efforts to manage bureaucratic behavior. For instance, statute gives some a “bypass” around the executive branch budget process, allowing them to send appropriations requests to Congress without presidential editing. Others have long been exempted from centralized review of their proposed regulations, shielding those rules from White House scrutiny and attempted amendment. The Fed even raises its own money, in part by taking a cut of the interest it charges member banks. (Whether the Consumer Financial Protection Bureau (CFPB) can, in turn, take a cut of the Fed’s cut, is currently before the Supreme Court.)

When president, Trump railed against these limits. Perhaps his most prominent ire was, er, Federally Reserved – he threatened to fire his own appointee as Board chair there when the Fed did not reduce interest rates as fast as Trump wanted. “Who is our bigger enemy,” the president mused by tweet in August 2019, “Jay Powell or Chairman Xi?” Trump’s allies charge (as Heritage Foundation president Kevin Roberts puts it) that “the notion of independent federal agencies or federal employees who don’t answer to the president violates the very foundation of our democratic republic.”

Congress and the courts have repeatedly protected agency independence

But over time, from the 1930s to the 1980s – from the Brownlow Committee to the Hoover Commissions to the President’s Reorganization Project and beyond – Congress has rejected numerous efforts to reorganize the independent agencies into presidential ones. And there is extensive jurisprudence on when and how the president can fire executive branch employees, often termed the “removal power.” Here the Supreme Court, too, has concluded that our democratic republic can withstand some constraints on presidential preferences in this domain.

True, in a sweeping 1926 opinion by former-president-turned-Chief-Justice William Howard Taft, the Court supported “unrestricted” presidential discretion over personnel. Taft argued that since the president’s “selection of administrative officers is essential to the execution of the laws by him, so must be his power of removing those for whom he cannot continue to be responsible.” 

But the Court was divided, especially since the specific case involved a local postmaster not hugely crucial to national policymaking. Justice James McReynolds wondered why such vast power was not specified in the Constitution when far weaker grants of authority were spelled out: “It is beyond the ordinary imagination to picture forty or fifty capable men…, vainly discussing, in the heat of a Philadelphia summer, whether express authority to require opinions in writing should be delegated to a President in whom they had already vested the illimitable executive power here claimed.”

Less than a decade later, in the 1935 Humphrey’s Executor case involving a member of the Federal Trade Commission, a unanimous Court decided the removal power was not in fact “illimitable.” Rather, it depended on “the character of the office.” The president could remove “purely executive” officials in agencies reporting directly to him, but the point of multi-member regulatory commissions was to allow “quasi-legislative or quasi-judicial” decision-making by independent experts. Thus it was fine for Congress to insulate them from political control. Indeed, the Court added that “the commission… must, from the very nature of its duties, act with entire impartiality….[as] a body which shall be independent of executive authority except in its selection.”

The breadth of that language, in turn, has come under fire over time. Still, legislators’ ability to bar the president from dismissing officials except “for cause” was upheld in 1988 for so-called “inferior” officers not appointed directly by the president. In the 2020 Seila Law case, the court did strike down the bespoke design of the CFPB, which had been created to have a single director, removable only for cause. But it did not overturn Humphrey. Instead, the justices told Congress it could choose between a single agency head with no protections or a multi-member board with protections, but not mix and match. Even that conclusion was sharply contested, with the justices split 5-4; Justice Elena Kagan objected that it was up to Congress to decide when agencies needed political insulation and that the Court had long approved just that.

But presidents could find administrative ways to limit this independence

The independent agencies, then, are unlikely to be quickly transformed through the federal courts as violations of the Constitution. Still, presidents could tweak the procedural exemptions noted above to give themselves more influence over those agencies’ policymaking. One Trump initiative leveraged the Congressional Review Act (CRA) – which allows Congress to overturn recently issued regulations to bring independent agencies’ rules and guidance documents within presidential purview. The idea (since rescinded by the Biden administration) was that to comply with the CRA the White House needed to be able to tell legislators what policies existed in the first place.

Another long-discussed step would fold independent agencies into the centralized regulatory review process overseen by the Office of Information and Regulatory Affairs, giving presidents advance notice of proposed rules and the chance to change or stop them. Presidents’ executive orders on regulatory review, from as early as 1978, have exempted these agencies. But the Justice Department has long argued that such review would be legal – just impolitic. In its 1981 memo assessing Ronald Reagan’s 1981 landmark order on regulatory review, Justice worried openly about provoking “confrontation with Congress.”

To that point: Back in 1977, Jimmy Carter received a letter from 13 Senate chairs and ranking members (ranging ideologically from Great Society liberal Abe Ribicoff to one-time “Dixiecrat” segregationist Strom Thurmond to Utah conservative Orrin Hatch). This letter flatly claimed Carter’s proposed executive order could not “lawfully be applied to the independent regulatory commissions. To do so would violate the intent of Congress that the Executive Branch not control the rules these agencies issue.” By contrast, it’s not clear that the Senate of 2025 will be able to write a bipartisan letter selecting a nice place for lunch. And a Congress that won’t protect its prerogatives usually finds that presidents are happy to fill the void.