CNN
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President Donald Trump’s executive order grasping far greater control over independent federal agencies embraces a constitutionally questionable theory that presidents dating back to Ronald Reagan have considered – and ultimately rejected.
In a far-reaching executive order Tuesday, Trump demanded that the White House review regulations at the Securities and Exchange Commission, the Federal Trade Commission and other agencies with sweeping power to shape everything from shipping lanes to nuclear power plants.
The order is part of a broader push by Trump to consolidate power over independent agencies that Congress intended to be removed from presidential control. It follows a series of controversial firings at those agencies that are being challenged in federal courts, including at the Supreme Court.
Here’s what to know about Trump’s latest executive order:
Congress passed laws setting up independent agencies because lawmakers wanted the government to be able to perform some functions – like overseeing elections or regulating financial markets – without direct presidential involvement.
The Securities and Exchange Commission, for instance, has in recent years required publicly traded companies to provide additional information to regulators about their internal policies. The Federal Trade Commission enforces antitrust law. And the Federal Election Commission enforces federal campaign finance laws, such as donation and spending limits.
But support for independence has smacked up against a theory long popular within conservative legal circles that a president should have near complete control over the executive branch and the people who work in it. It is a theory that has increasingly found purchase on the 6-3 conservative Supreme Court.
“For at least a century, we’ve all thought that certain types of federal agency actions should be removed from politics to the extent we can,” said Christopher Walker, a University of Michigan Law School professor and an expert in administrative law.
The question of whether Trump’s move is unconstitutional or unlawful has long been an open one, Walker said.
“Personally, I don’t think so,” he said. “But is it a big change? Absolutely.”
Federal agencies, generally, must submit proposed regulations to the Office of Management and Budget, a part of the White House. That includes government entities like the Department of Energy, the Department of Transportation as well as the Pentagon. When President Ronald Reagan formalized that process in the early 1980s, his administration considered requiring the same sort of review for independent agencies.
Ultimately, the Reagan administration decided against it.
Trump’s own Department of Justice considered the question during his first administration, in 2019, and concluded nothing stood in the president’s way.
Still, the administration didn’t pursue the policy at that time.
Trump’s new order requires a huge swath of independent agencies to submit regulations for review. In explaining the order, the White House said that those and other independent agencies exert “enormous power over the American people without presidential oversight.” The agencies, it said, “issue rules and regulations that cost billions of dollars and implicate some of the most controversial policy matters.”
Public Citizen, a progressive advocacy group, has called the move “illegal” and a “giant gift to the corporate class.”
“This is a profoundly dangerous idea for the nation’s health, safety, environment and economy – and for our democracy. Congress made independent agencies independent of the White House for good reason,” Robert Weissman, co-president of Public Citizen, said in a statement.
Beyond the technical requirements involving regulation review, Trump’s order also mandates far more day-to-day involvement by the White House in the business of independent agencies. The order requires liaisons from the White House to those agencies and insists that its leaders “regularly consult with and coordinate policies.”
“That’s pretty unprecedented,” said Daniel Walters, a Texas A&M University law professor and expert on administrative law. “This seems to suggest a real interest in reining in independent agencies.”
Several independent agencies contacted by CNN on Wednesday, including the SEC and the FEC, declined to comment.
The order follows – and is closely tied to – a push by the White House to remove the leaders of some independent agencies, including those who are empowered to criticize the president’s agenda.
The Supreme Court is already considering the case of Hampton Dellinger, the special counsel, who Trump fired this month. Dellinger, named to the job by President Joe Biden, handles allegations of whistleblower retaliation within the federal government. Dellinger’s agency could potentially slow Trump’s effort to dramatically cut the size of the federal workforce.
(The office is unrelated to special counsels like Jack Smith or Robert Mueller who were appointed to oversee politically sensitive investigations for the Justice Department.)
Congress included protections for the post, requiring a president to show “inefficiency, neglect of duty, or malfeasance in office” before firing the special counsel. Trump cited none of those reasons for Dellinger’s dismissal and his Justice Department recently asserted that the requirements Congress enacted are unconstitutional.
The Supreme Court could rule on a preliminary question in that case at any time.
Trump has fired other independent agency heads in similar positions, as well. A federal judge on Tuesday temporarily blocked the White House from dismissing the chair of the federal Merit Systems Protection Board.
Another federal court is reviewing Trump’s dismissal of a member at the National Labor Relations Board.
The lawsuits challenging those dismissals rest in part on a foundational Supreme Court precedent from 1935, Humphrey’s Executor v. US, that allows Congress to require presidents to show cause – such as malfeasance – before dismissing board members overseeing independent agencies.
But the Supreme Court’s conservative justices have distanced themselves from that decision in recent years, most notably in a 2020 decision involving the Consumer Financial Protection Bureau. In that case, Seila Law v. CFPB, the court held that protections for the head of the Consumer Financial Protection Bureau violated separation of powers principles. That controversial agency, originally envisioned by Massachusetts Democratic Sen. Elizabeth Warren, was created in response to the 2008 financial meltdown and it has approved consumer-friendly regulations on mortgages, car loans and credit cards.
The president’s power to “remove – and thus supervise – those who wield executive power” flows directly from the Constitution, Chief Justice John Roberts wrote for the majority.
“The CFPB director has no boss, peers, or voters to report to,” Roberts wrote. “Yet the director wields vast rulemaking, enforcement, and adjudicatory authority over a significant portion of the US economy.”
Trump’s order notably excluded much – but not all – of the Federal Reserve from its requirements. During his first term, Trump frequently sparred with the agency’s leadership over interest rates.
The Fed, experts say, illustrates why Congress has long wanted to create independent agencies. If a president had complete control over the Fed’s monetary policy, he could demand lower interest rates to give the economy a jolt during an election year, even if that decision has adverse consequences, like higher inflation, months after the election.
By skirting around the Fed, the White House is attempting to avoid a legal confrontation that might go too far for a conservative Supreme Court.
But, legally, experts say, there’s little to distinguish the Federal Reserve from the other independent agencies Trump has targeted with the order.
Walker stressed that there is significant benefit to having the Office of Management and Budget review government regulations, particularly in checking the process agencies used to draft them. It’s another set of eyes to review what are often complicated policies with huge implications for the nation.
“I’m a fan of this move, from a bureaucracy perspective,” Walker said. “What worries me is presidential politics. I don’t want the process to be politicized.”
One section of Trump’s executive order appeared to encompass more than just independent agencies – and it was drawing considerable scrutiny from some of the president’s critics on social media.
Tucked into the order is a section that suggests the president and attorney general “shall provide authoritative interpretations of law for the executive branch.” Some read that language to suggest that he, alone, would interpret the law.
Trump may like that idea – 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 force of law and so it changes nothing about the checks and balances set out in the Constitution.
What the White House appeared to be aiming at in the order is the idea that independent agencies should be interpreting the law consistently with the rest of the administration. In the case of Dellinger, for instance, that has not happened.
“The President and the Attorney General (subject to the President’s supervision and control) will interpret the law for the executive branch, instead of having separate agencies adopt conflicting interpretations,” the White House said in a fact sheet explaining that provision.
CNN’s Kit Maher and Fredreka Schouten contributed to this report