Independent agencies targeted by Trump’s latest executive order

President Donald Trump on Tuesday signed an executive order to curtail the autonomy of independent regulatory agencies like the Federal Communications Commission, Federal Trade Commission and Securities and Exchange Commission. 

“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,” Trump wrote in the directive. “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.”

Specifically, the order requires independent agencies to submit proposed and final “significant regulatory actions” to the Office of Information and Regulatory Affairs for review before publishing them. 

OIRA is an entity within the Office of Management and Budget that analyzes agencies’ regulatory actions to ensure they align with the president’s policies, but it hasn’t historically considered rules from independent agencies. Such agencies were created by Congress to have some degree of separation from the White House. They are generally boards and commissions with multiple members from both parties. 

Bridget Dooling, an assistant professor of law at the Ohio State University who used to work at OIRA, said the conflict between the president and independent agencies has been “simmering” for decades. 

“This [executive order] is not just sort of one surgical intervention in the relationship of the president and the independent agencies,” she said. “It's a broadside attempt to reset our understanding of what agency independence is.”

Dooling expects that provisions of the order will be challenged in court. 

“There are instances where Congress gave agencies insulation from the types of things that this executive order is directing them to do,” she said. “We're seeing a very broad brush executive order that would seem to be applying to a lot of differently situated agencies.”

Trump’s directive also prohibits executive branch employees from interpreting the law in a way that contravenes the president or the attorney general. Dooling argued that, at a minimum, the provision is trying to require agencies that have independent litigating authority, such as the Consumer Financial Protection Bureau and Federal Labor Relations Authority, to first go through the Justice Department. 

“It's basically trying to strip agencies of their ability to come to their own interpretations of the laws that they administer,” she said. 

The order also mandates that independent agency leaders regularly consult and coordinate with the presidential administration, establish White House liaisons in their agencies and create agency strategic plans to be approved by the OMB director. 

Additionally, it requires the OMB director to establish performance standards and management objectives for independent agency leaders and to adjust agencies’ funding allocations to advance the president’s priorities. Russell Vought, one of the individuals leading the effort to remove civil service job protections for federal employees, was confirmed to lead OMB on Feb. 6. 

The order applies to the Federal Reserve only with respect to its supervision and regulation of financial institutions. 

Robert Weissman, co-president of the watchdog group Public Citizen, argued Trump’s directive is illegal. 

“Independent agencies would become dependent — dependent on the whims of Trump, Vought and their corporate buddies,” he said in a statement. 

Weissman also pointed out that the order affects agencies that are investigating or otherwise regulating companies owned by billionaire Elon Musk, who is leading the effort to cut down the federal workforce.