By Charlie Savage
President Donald Trump issued an executive order earlier this week that seeks greater authority over regulatory agencies that Congress established as independent from direct White House control, part of a broader bid to centralize a president’s power over the government.
The order requires independent agencies to submit their proposed regulations to the White House for review, asserts a power to block such agencies from spending funds on projects or efforts that conflict with presidential priorities, and declares that they must accept the president’s and the Justice Department’s interpretation of the law as binding.
“This is a power move over independent agencies, a structure of administration that Congress has used for various functions going back to the 1880s,” said Peter M. Shane, who is a legal scholar in residence at New York University and the author of a casebook on separation-of-powers law.
Tuesday’s order follows Trump’s summary firings of leaders of independent agencies in defiance of statutes that bar their removal without cause before their terms are up. Collectively, the moves constitute a major front in the president’s assault on the basic shape of the American government and his effort to seize some of Congress’s constitutional power over it.
The directive applies to various executive branch agencies that Congress established and empowered to regulate aspects of the economy, structuring them to be run by officials the president would appoint to fixed terms but whose day-to-day actions he would not directly control.
Those agencies include the Securities and Exchange Commission, the Federal Trade Commission, the Federal Communications Commission and the National Labor Relations Board. Still, the order applies only partly to one particularly powerful agency, the Federal Reserve, covering issues related to its supervision and regulation of Wall Street, but exempting its decisions related to monetary policy, like raising and lowering interest rates.
Trump’s order builds on a series of directives that trace back to one issued in 1981 by President Ronald Reagan that also required agencies to submit proposed rules to the White House’s Office of Management and Budget. That order, however, did not apply to agencies Congress set up to be independent of the White House.
Peter L. Strauss, professor emeritus of law at Columbia University, said there should be no legal controversy over the order’s requirement that independent agencies consult with the White House about their regulatory plans. Under the Constitution, he noted, the president “may require the opinion, in writing” of senior officials related to the duties of their offices.
But, Strauss said, other aspects suggest that Trump views himself as having the power to direct agency actions — equivalent to how he can give the military orders as commander in chief — even if Congress has said otherwise. That, Strauss argued, crosses a line in what has long been the mainstream understanding of the Constitution.
The order declared that the White House’s director of the Office of Management and Budget, Russell T. Vought, can withhold funding for any projects or initiatives that conflict with Trump’s policies and priorities.
Specifically, it said, Vought will have the power to “adjust such agencies’ apportionments by activity, function, project, or object, as necessary and appropriate, to advance the president’s policies and priorities,” including by prohibiting them from expending funds on matters Trump does not like.
That power for Vought to restrict agencies’ ability to spend funds that Congress has appropriated for them to use, the order says, is limited: He can do that only “so long as such restrictions are consistent with law.” But another section of the order says the agencies must accept the views of Trump and Attorney General Pam Bondi on what the law means.
“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” without permission, it said.
Trump has taken the position that a 1974 law, the Impoundment Control Act, is unconstitutional. Under that law, Congress restricted presidents’ ability to refuse to spend money that lawmakers had appropriated for programs that the president did not like.
The Justice Department has sought to establish that only the solicitor general may speak for the executive branch before the Supreme Court. But Congress has also by statute given certain agencies independent litigating authority. The Trump administration apparently seeks to definitively end agencies’ ability to decide what positions to take even in lower court.
Since returning to office, Trump had already challenged a key legal plank of independent agencies by summarily firing the heads of several such organizations. That is in violation of statutes enacted by Congress that protect them from arbitrary termination and say that such officials may be removed before their terms are up only for a good cause, like misconduct.
Ending the independence of such agencies and consolidating power over them in the White House has long been an aim of the conservative legal movement, which sees that goal as a means toward reducing regulations and rules the government has imposed on powerful business interests.
But the movement has lacked the votes to persuade Congress to simply rescind the statutes and abolish or curtail such agencies. Instead, since the Reagan administration, conservative lawyers have developed and pushed an ideology called the unitary executive theory, under which the Constitution should be reinterpreted as not allowing Congress to create any pockets of independence within the government from direct presidential control.
Republican-appointed justices on the Supreme Court — five of whose nine members served as executive branch lawyers in the Reagan or George W. Bush administrations — have already been chipping away at the powers of regulatory agencies. The agencies include those Congress established as independent and those, like the Environmental Protection Agency, that lawmakers set up to be subject to presidential supervision.
During the 2024 campaign, Trump and some of his closest advisers made clear that if he won, they would push that agenda. In a video on his campaign website, Trump pledged to bring independent agencies “back under presidential authority, as the Constitution demands.”
And Vought, who also led the Office of Management and Budget in Trump’s first administration, told The New York Times in an interview in 2023 that independent agencies were in their cross hairs.
“What we’re trying to do is identify the pockets of independence and seize them,” Vought said.
