Trump’s Worthy Effort to Rein In ‘Independent’ Agencies

D espite all the progressive fire and brimstone descending on Elon Musk, his Department of Government Efficiency is making only a down payment on shrinking the administrative state. Firing thousands of federal employees may reduce fraud, waste, and abuse, but the frontal assault on unconstrained government will come if President Donald Trump succeeds in bringing the so-called independent regulatory agencies to heel.

These “alphabet” agencies exercise vast power over the American economy and society. The Securities and Exchange Commission, for example, controls the stock and bond markets and dictates what information companies must disclose. The National Labor Relations Board supervises all union activity in the United States. The Federal Communications Commission controls the telephone and internet networks. The Federal Trade Commission seeks to bless or stop every merger in the nation. These commissions have run riot, and not even the federal government can produce an exact accounting of the costs that they impose on the economy, or even their actual number. These agencies had their start during the Progressive Era under Presidents Teddy Roosevelt and Woodrow Wilson and grew under Presidents Franklin Roosevelt, Lyndon Johnson, and Barack Obama.

When it established these agencies, Congress sought to keep their powers away from direct presidential control. Unlike members of the cabinet, the president cannot remove members of these commissions without “cause,” which requires a serious abuse of power or violation of the law. Congress also vests the power of these regulatory agencies among multiple members and requires partisan balance within them.

The Trump administration is making a bold and principled effort to restore these wayward bodies to the control of the executive branch. Trump issued an executive order on February 18 requiring these agencies to submit their regulations and decisions to the White House for approval. In a February 12 letter to Congress, the Justice Department announced that it would no longer defend the constitutionality of these independent bodies and would ask the Supreme Court to overrule Humphrey’s Executor (1935), which remains the leading precedent in favor of the constitutionality of “for cause” tenure protections for members of independent agencies. Finally, Trump has fired the heads of the National Labor Relations Board and the Merit Systems Protection Board, as well as the director of the Office of Government Ethics, all of whom have “for cause” protection from removal. The administration is obviously setting the stage for a Supreme Court test case on executive power.

The Progressivist Constitution and the Independent Agencies

The political struggle over the independent agencies involves more than just President Trump’s advancement of his electoral mandate and Democrats’ effort to stop him. Trump’s campaign against the agencies reignites a more fundamental battle over basic principles between the Founders’ original Constitution and the Constitution of the progressives, under which we still live today.

The independent agencies may represent the highest expression of the progressivist approach to executive power. Progressivism married the idea of a “plebiscitary” president, who communicates broad policy objectives to the voters and mobilizes support for them, with that of a managerial executive branch. Progressives demanded that Congress delegate its lawmaking authority to supposedly “neutral” and “apolitical” experts. They then sought to shelter these professionals and technicians from the play of raw democratic forces by providing them with robust protections against presidential removal. Progressives take not as a flaw but as a positive design feature the ability of these independent agencies to subvert a presidential agenda and frustrate the majoritarian preferences that lie behind it. Progressivism in America arose out of the contempt that thinkers like Woodrow Wilson felt toward Congress, and its crass and untidy “political” bargains, and their admiration for the 19th-century German civil service. Dr. Anthony Fauci is the poster child for the progressives’ idea of government: a single, unelected scientist who decided policies that shaped the everyday lives of all Americans without political accountability.

The progressivist conception is unquestionably contrary to that of the original Constitution. Alexander Hamilton explained in Federalist No. 70 that the Constitution vested the executive power solely in the president in order to encourage “energy in the executive,” which he called “the leading character in the definition of good government.” Only an individual, Hamilton observed, rather than a group, could act with the decision, speed, secrecy, and dispatch necessary to defend the nation and enforce the laws.

By contrast, Wilson campaigned on the claim that the Framers’ Constitution had become obsolete. The progressives considered the original Constitution suited to the circumstances of the “Newtonian” late 18th century but badly in need of adaptation to the “Darwinist” period in which they lived. Latter-day progressives still hold to such views, though they are less candid in admitting to them.

Setting the Stage for the Supreme Court

Trump will likely win this constitutional struggle. Humphrey’s Executor is a confused, illogical decision that survives only on life support. The case was brought by William Humphrey, an FTC commissioner fired in 1933 by the new president, Franklin Roosevelt. FDR had removed him not “for cause,” as the FTC statute requires, but for policy differences. The Supreme Court ruled in Humphrey’s favor. It concluded, incoherently, that the FTC somehow exercised power that was neither purely executive, legislative, or judicial and therefore could rest outside the control of the president. In what must be one of the worst examples of legal twaddle, the Court said:

To the extent that it exercises any executive function — as distinguished from executive power in the constitutional sense — [the FTC] does so in the discharge and effectuation of its quasi-legislative or quasi-judicial powers, or as an agency of the legislative or judicial departments of the government.

Humphrey’s Executor has not stood the test of time. In Seila Law v. Consumer Financial Protection Bureau (2020), the Court held that Congress could not vest the power to enforce the laws in the hands of a single agency head who is protected from presidential removal. The Court wrote:

In our constitutional system, the executive power belongs to the president, and that power generally includes the ability to supervise and remove the agents who wield executive power in his stead. . . . While we have previously upheld limits on the president’s removal authority in certain contexts, we decline to do so when it comes to principal officers who, acting alone, wield significant executive power.

CFPB left Humphrey’s Executor hanging by a thread: The latter had dealt with an agency with a multimember, rather than individual, head. Two justices would have taken the final step of burying this deeply flawed decision. Justice Clarence Thomas, joined by Justice Neil Gorsuch, concurred: “The decision in Humphrey’s Executor poses a direct threat to our constitutional structure and, as a result, to the liberty of the American people.” In a future case, Thomas declared that he “would repudiate what is left of this erroneous precedent.”

A Supreme Court rejection of independent agencies would mark an enormous shift of power away from the administrative state and back into the hands of the president. It would restore political accountability for public policy choices to the elected branches. And it would bring the dominant understanding of the executive power closer to the constitutional text and the prevailing understanding of the Founders.

The federal bureaucracy often resists the wishes of the president and Congress — and may do so by progressive design. Agencies can refuse to carry out presidential directives: They can slow-walk regulatory initiatives, they can conceal important information from the White House or presidential appointees, they can carry out operations that they keep “off the books.” This friction, which makes it hard or even impossible for a president to carry out his agenda, is intensified when the agency is headed by a leader or board that has no fear of removal. Some political scientists have conceived of the relationship between the president and the agencies as a kind of bargaining game, in which the bureaucracy checks unilateral presidential initiatives. Granting an agency “independence” aggravates this tension by improving the agency’s bargaining position vis-à-vis the president. “Independence” thus dilutes the president’s constitutional power and diminishes the chances that his administration will enact the policies that it was elected to pursue.

The Framers did not design a constitution, of course, by which the president could simply ignore statutes, close agencies without the permission of Congress, or refuse to spend valid appropriations. The president is not a king, as Trump’s critics so eagerly accuse him of being. The Framers created a simple, yet elegant, structure for the presidency that transformed the executive from a monarchical to a republican institution. The Constitution makes the president solely responsible for executing the laws and protecting the nation. Everyone within the executive branch assists the president in these functions. The president must have the power to fire subordinates who refuse to obey his decisions on how to interpret and execute the law. The president remains primarily constrained by Congress, which enacts the laws, opens the public purse, and ultimately has the power of impeachment. But what the Constitution does not permit is the creation of an independent branch of government that answers to no one. While Trump may be pursuing his immediate political interests in attacking the administrative state, a victory could land a great blow in favor of restoring the original Constitution.

John Yoo is a distinguished visiting professor at the School of Civic Leadership and a senior research fellow at the Civitas Institute at the University of Texas at Austin, the Heller Professor of Law at the University of California, Berkeley, and a nonresident senior fellow at the American Enterprise Institute. Robert J. Delahunty is a fellow at the Claremont Institute’s Center for the American Way of Life.