Trump Order Puts Independent Federal Agencies Under His Control

On Tuesday, Feb. 18, U.S. President Donald Trump signed “Ensuring Accountability for All Agencies,” an executive order that would allow the White House to control independent federal agencies that have traditionally operated outside of its direct supervision and influence.

The Trump administration also released a support document, “Fact Sheet: President Donald J. Trump Reins in Independent Agencies to Restore a Government that Answers to the American People”.

The landmark executive order, which aims to establish “oversight” and “accountability” through “Presidential supervision and control of the entire executive branch,” could impact more than 50 independent agencies — from the Federal Communications Commission, Federal Election Committee and Federal Trade Commission to the Consumer Product Safety Commission, National Aeronautics and Space Administration, and National Science Foundation.

Perhaps most notable for total rewards professionals are the:

Equal Employment Opportunity Commission (EEOC), which enforces federal laws that prohibit employment discrimination in numerous areas (e.g., hiring, firing, promotions, harassment, training, wages, benefits).
National Labor Relations Board (NLRB), which enforces the National Labor Relations Act (NLRA), conducts elections to determine union representation and investigates allegations of unfair labor practices (e.g., wages, pay rates, working hours, work conditions).
Pension Benefit Guaranty Corporation (PBGC), which was created by the Employee Retirement Income Security Act of 1974 (ERISA) to encourage the continuation and maintenance of voluntary private defined benefit pension plans, provide timely and uninterrupted payment of pension benefits, and monitor pension insurance premiums.
Securities and Exchange Commission (SEC), which requires public companies to disclose how much they pay their executives, and how that pay relates to corporate financial performance.
Social Security Administration (SSA), which assigns Social Security numbers and administers retirement, disability insurance and other benefit programs.

Federal agencies typically are run by bipartisan panels whose members are nominated by the President and confirmed by the Senate for fixed terms, removable only for misconduct (for instance, the NLRA states NLRB members can only be removed for “neglect of duty or malfeasance in office, but for no other cause”). Over the past month, Trump has challenged the precedents for board dismissal and installation, stating tenure protections are unconstitutional.

Backdrop and Details

What is the purpose of this latest move?

In his executive order, President Trump stated:

“Previous administrations have allowed so-called ‘independent regulatory agencies’ to operate with minimal Presidential supervision. These regulatory agencies currently exercise substantial executive authority without sufficient accountability to the President, and through him, to the American people. Moreover, these regulatory agencies have been permitted to promulgate significant regulations without review by the President.”
“These practices undermine such regulatory agencies’ accountability to the American people and prevent a unified and coherent execution of federal law. For the federal government to be truly accountable to the American people, officials who wield vast executive power must be supervised and controlled by the people’s elected President.”
“Therefore, in order to improve the administration of the executive branch and to increase regulatory officials’ accountability to the American people, it shall be the policy of the executive branch to ensure Presidential supervision and control of the entire executive branch.”

According to the Trump administration, such power is warranted by the U.S. Constitution. “Article II … vests all executive power in the President, meaning that all executive branch officials and employees are subject to his supervision,” stated one of the first points in the fact sheet tied to this order.

This statement advances a conservative legal doctrine called the “unitary executive” theory, which envisions vast executive authority for a President, even when Congress has historically sought to limit such power.

To mobilize this plan, the executive order calls out:

All federal agencies must: 1) submit draft regulations for White House review, and 2) consult with the White House on their priorities and strategic plans. From there, the White House will set their performance standards.
The Office of Management and Budget (OMB) will adjust agency budget apportionments “to ensure tax dollars are spent wisely.”
The President and the U.S. 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.”

Toward the third bullet point, the executive order stated, “No employee of the executive branch acting in their official capacity may advance an interpretation of the law as the position of the United States that contravenes the President or the attorney general’s opinion on a matter of law, including but not limited to the issuance of regulations, guidance and positions advanced in litigation, unless authorized to do so by the President or in writing by the attorney general.”

According to the White House’s fact sheet, “The United States was founded on the principle that the government should be accountable to the people. That is why the founders created a single President who is alone vested with ‘the executive power’ and responsibility to ‘take care that the laws be faithfully executed.’ Voters and the President can now hold all federal agencies — not just cabinet departments — responsible for their decisions, as the Constitution demands.”

Commentary on the Executive Order

The executive order is certain to face lawsuits from certain agency leaders, politicians and advocacy groups. Both sides of the aisle may advance this issue to the U.S. Supreme Court, where the current conservative majority may provide its take on the validity of the “unitary executive.”

Past U.S. Presidents have rarely challenged the independence of federal agencies. Some have made it a point to formally acknowledge their inability to interfere, even when their political stance differs from agency actions. However, Trump, on Feb. 15, made a counter claim on social media platform X, stating, “He who saves his Country does not violate any Law.”

Following the Feb. 18 executive order signing, several prominent individuals and groups commented on the new policy and its constitutionality.

Robert Weissman, co-president of Public Citizen, a consumer rights advocacy group, stated, “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. [Under the executive order,] independent agencies would become dependent — dependent on the whims of Trump, [OMB director Russell] Vought and their corporate buddies. This would be a disaster for America.”

Peter M. Shane, a legal scholar and adjunct law professor at New York University, told the New York Times, “This is a power move over independent agencies, a structure of administration that Congress has used for various functions going back to the 1880s.”

Daniel Farber, a law professor at the University of California at Berkeley, told National Public Radio, “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.”

Farber envisions the result will be regulatory whiplash, particularly in the areas of labor and finance. He stated, “The commission system has given these areas of the law some degree of stability, so the rules do not completely flip after every election. That would change under [the Trump executive order].”

James Broughel, an economist and senior fellow at the Competitive Enterprise Institute, stated in an article for Forbes, “[This] raises fundamental constitutional questions. If the President and Vice President are the only executive branch officials accountable to the American people, how can powerful regulatory agencies function without their direct oversight? Supporters of independent agencies argue their independence is needed to shield them from political influence. Critics respond that their independent status undermines democratic principles, effectively creating a fourth branch of government that is answerable to no one.”

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