Today, President Trump signed an Executive Order that purports to place independent regulatory agencies – including the Federal Communications Commission and Federal Trade Commission – under his direct control. Premised on the so-called “unitary executive” theory, this action presents a grave threat to the rule of law and separation of powers that are fundamental to the constitutional order.
The following can be attributed to John Bergmayer, Legal Director of Public Knowledge:
“This Executive Order states that the president is charged with ‘faithfully executing the laws.’ This is true. However, the laws of our nation include the existence of independent regulatory agencies, the power of Congress to appropriate funds and direct how they are spent, and protection for certain government employees and officers from arbitrary dismissal.
“President Trump and his administration assert they are above the law, and that through Executive Orders, they can subvert our democracy by declaring that their nebulous understanding of the phrase ‘executive power’ should prevail over duly enacted statutes passed by Congress and signed into law by presidents of both parties, over the course of decades. The constitution did not change its meaning when President Trump took office. That this ‘unitary executive’ theory has made its way from the fringes of academia to the halls of power, and that it has even been accepted by some credulous judges, does not mean that it is right. We are a nation of laws, and we cannot be ruled by executive fiat.
“In this latest Executive Order, the Trump regime purports to seize for itself the power Congress delegated to independent regulatory agencies, and as written, declares the White House’s interpretation of the law as ‘authoritative,’ with no mention of the courts. Of course, the president is not, and never has been, the final arbiter of what is lawful. Lawyers working for the government owe their allegiance to the American people, not to President Donald J. Trump.
“While Public Knowledge has often disagreed with decisions taken by the FCC or FTC, under both Republican and Democratic control, we understand the importance of expert agencies that are free from day-to-day political control. The FCC’s control over broadcast licenses, and its unenviable role of coordinating spectrum use between different industries and other government agencies, among other things, means it should be free to try to come to the best answer – not the one with the loudest political support. This applies to enforcement activities as well. Under the Biden administration, for instance, the FTC frequently investigated politically powerful companies. President Trump, like other presidents have done, is free to express his views as to what the agencies should prioritize, and to nominate like-minded Commissioners. But in addition to being the law of the land, in many areas, independent agencies are simply good policy.
“The notion that independent agencies are ‘unaccountable’ is, on its face, absurd. The president nominates all agency commissioners, including ones of the opposite party, and names the Chair from among them. Agencies – like presidents are supposed to – regularly answer to Congress, who controls their budget, and can override any of their actions. Independent agencies cannot issue rules without following the strict rules of the Administrative Procedure Act, and their rules and actions are regularly challenged in the courts and occasionally by Congress.
“The wisdom of having independent agencies and tenure protections for certain government officials has been confirmed in recent weeks by the disastrous and irresponsible actions of the lawless Trump regime. One president should not be able to nullify statutes passed into law by past presidents and past Congresses with the stroke of a sharpie. Congress must re-assert its central constitutional role. Further, one hopes that federal judges and Supreme Court justices who, in the past, have lent their support to this imperial presidency, can see where this is going and act to limit the ability of the president to subvert our democracy and constitutional order.”
Members of the media may contact Communications Director Shiva Stella with inquiries, interview requests, or to join the Public Knowledge press list at shiva@publicknowledge.org or 405-249-9435.