A recent Trump executive order unlawfully undermines the authority of independent agencies.
Democracies depend on a rule of law. They therefore require all government officials to obey the law and make them legally accountable, primarily through judicial and legislative oversight. The President has never been excepted.
Heads of state may well have policy agendas, but they advance those agendas primarily by persuading the legislature to pass new laws. Our Constitution demands that approach, as it gives Congress alone the power to pass legislation. Our Constitution also requires the President to “take care that the laws be faithfully executed.”
But President Trump’s new executive order “Ensuring Accountability for all Agencies” does not seek to faithfully execute laws. Indeed, the President’s firing of independent commissioners and civil servants and his executive orders show that he is hell bent on undermining the law. He has bypassed Congress by shuttering agencies that carry out laws he disapproves of. In effect, he has repealed statutes by preventing their implementation, in violation of the Constitution and his oath of office.
All functioning democracies, including ours, have to insulate some agencies from political control by the head of state to make sure that they impartially apply the law when fairness is essential to democracy. Thus, democracies have independent media authorities such as the Federal Communications Commission (FCC), election authorities such as the Federal Election Commission (FEC), and central banks such as the Board of Governors of the Federal Reserve System. We also sometimes make agencies independent when we anticipate that economically powerful corporations would otherwise subvert them. Thus, Congress and the President established an independent National Labor Relations Board (NLRB) to protect labor, and other independent agencies such as the Consumer Financial Protection Bureau, to protect consumers and investors from abuse and fraud.
Autocratic chief executives, however, bring independent agencies under their control to overthrow democracies. They then use media authorities to subdue independent news outlets, electoral commissions to make elections unfair, and other agencies to protect their supporters and subdue opposition. Presidents devoted to democracy do not destroy all bastions of independence within the executive branch.
The new executive order requires the now-Director of the Office of Management and Budget (OMB), Russell Vought, to “adjust” “regulatory agencies’ obligations” to make them consistent with the President’s policy. Regulatory agencies’ “obligations” come from statutes. These instructions suggest that the statutes will be bent or ignored in practice so that the agencies implement President Trump’s policy instead of the law’s policy. In other words, they suggest presidential usurpation of congressional authority to amend statutes. The order also calls for usurpation of congressional control over the federal budget by cutting off statutorily authorized funding that does not conform to the President’s political preferences. The order contains caveats to suggest that OMB should not direct lawbreaking, but the overall thrust of this and history of President Trump’s actions in the past suggest an intent to violate the law to the maximum extent he can get away with. The President lost an astonishing 78 percent of his regulatory cases in his first term and numerous legal challenges in his first few weeks in office.
Vought helped lead Project 2025, and that document shows how he likely intends to make independent agencies into instruments of autocracy. For example, Project 2025 calls for the FCC to deny public broadcasting access to the spectrum it currently occupies and impose new licensing fees. It also calls for a funding cutoff. The FCC is already investigating all of the major networks, except, of course, Fox. All of this, along with President Trump’s libel suits, is consistent with standard autocratic efforts to intimidate or shut down independent media.
The document also supports paralyzing FEC enforcement of campaign finance law and the transfer of its litigation authority to the U.S. Department of Justice. President Trump has indicated that he plans to have the Justice Department investigate and possibly prosecute his political opponents. He seems poised to shield himself and his supporters’ campaign finance violations from enforcement, while charging his opponents with corruption, even when there is none, following his autocratic role model, Hungary’s Viktor Orbán.
OMB has long had a culture of protecting big business from standards that limit harms it inflicts on ordinary people. This order’s expansion of OMB’s remit promises yet more control of the government to President Trump’s wealthy friends. This order gives President Trump control over the NLRB, thereby limiting its ability to protect unions from unfair labor practices. It complements Elon Musk’s effort to disable the NLRB through litigation after charges that SpaceX committed unfair labor practices and President Trump’s decision to paralyze the NLRB by removing one its members in violation of its governing statute. Although it preserves the Federal Reserve’s independence to set interest rates, the order also helps set up a new financial crisis by ending the independence of financial regulators such as the Federal Reserve and the Securities and Exchange Commission, as promised by Project 2025.
All in all, this order suggests that President Trump has abandoned the people who elected him, to gain the support of the United States’ oligarchs in subduing American democracy. A government that serves its ruler’s policies instead of the law’s policies is a dictatorship.
