New Executive Orders Declare “So-Called” Independent Agencies No Longer Independent

President Trump issued two executive orders aimed squarely at upending the long-accepted authority and independence of certain federal agencies. The first order, Ensuring Accountability for All Agencies, derides “so-called independent regulatory agencies” that traditionally promulgate rules and regulations without requiring preclearance by the president.

The order declares such actions to be unaccountable to the American people and contrary to the Trump administration’s position that all executive power must be supervised and controlled by the president. Relatedly, the order declares that the opinions of the president and the attorney general are the only authoritative interpretations of law for the executive branch, without exception.

The order requires all executive agencies to submit all proposed and final significant regulatory actions to the Office of Information and Regulatory Affairs (OIRA), which sits within the Executive Office of the President, before publication in the Federal Register. Notably, the order carves out the Federal Reserve, perhaps indicating the administration is cognizant of the potential ramifications for the broader economy if the Federal Reserve’s independence were to come into question.

Under the order, every agency head must appoint a White House liaison, and the Office of Management and Budget (OMB) is now authorized to establish “performance standards and management objectives” for independent agency heads and will report to the president on their “performance and efficiency in attaining such standards and objectives.”

The second order, Ensuring Lawful Governance and Implementing The President’s “Department of Government Efficiency” [DOGE] Regulatory Initiative, directs agency heads to coordinate with DOGE, OMB, and the attorney general to identify within 60 days any regulation that meets the following criteria:

• Unconstitutional or “raise constitutional difficulties”
• Based on “unlawful delegations of legislative power”
• Exceed underlying statutory authority or contravene the statute’s “best reading”
• Impose significant costs and burdens on private parties not outweighed by public benefits

Agency heads must also deprioritize any regulation enforcement that does not align with the administration’s stance and, on a case-by-case basis, terminate any ongoing enforcement proceedings that do not comply with administration policy. All of these steps may undo much of the regulatory and enforcement activity that occurred during the Biden administration, especially the flurry of activity at the end of Biden’s term.

The administration’s onslaught against independent agencies is occurring at all levels of government. The acting solicitor general recently sent Congress a letter indicating that it no longer agreed with long-standing Supreme Court precedent that tenure protections for the Federal Trade Commission (FTC), National Labor Relations Board (NLRB), and Consumer Product Safety Commission (CPSC) are constitutional and would ask the Supreme Court to overrule those precedents.

In a statement to Axios, FTC chair Andrew Ferguson said he agreed “with every word of the Acting Solicitor General’s letter. Humphrey’s Executor was wrongly decided, is deeply anti-democratic, and ought to be overruled … I will be making a motion to ask my fellow Commissioners to agree to align the FTC’s position on this issue with the President’s position.”

In what has been part of a deluge of firings from the president, expedited litigation has rocketed its way to the Supreme Court. On February 7, Trump fired Hampton Dellinger, the head of the Office of Special Counsel, who is tasked with protecting federal employees and whistleblowers. Dellinger immediately sued and obtained a temporary restraining order restoring him to his position and preventing the administration from replacing him. A mere two weeks after Dellinger filed his complaint, the justices rejected the administration appeal which requested an immediate stay of the district court’s decision, calling it an “an unprecedented assault on the separation of powers.”

The Supreme Court held the government’s application in abeyance until the restraining order expires on February 26, noting that temporary restraining orders are not generally appealable. Justices Sotomayor and Jackson noted they would have rejected the application outright. Justices Alito and Gorsuch dissented, stating that Dellinger’s case was an exception to the rule because the district court had ordered an extraordinary remedy: “The court effectively commanded the President and other Executive Branch officials to recognize and work with someone whom the President sought to remove from office.”

Similar cases are likely to come before the justices. After the president fired Cathy Harris, the chairwoman of the Merit Systems Protection Board, she filed suit and obtained a temporary restraining order pausing her termination. Former NLRB member Gwynne Wilcox is also seeking judicial intervention after her removal.

Should the Supreme Court agree with the administration and remove all protections for agency leaders, such a change would be a monumental and unprecedented shift in the administrative state. Venable will be closely tracking all developments.

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