Yesterday President Trump signed what could prove to be his most important executive order to date. The order addresses the so-called “independent agencies” of the Executive Branch–the SEC, the Federal Reserve, the FDIC, the Federal Trade Commission, the Federal Communications Commission, and so on. The purpose of the order is to bring these agencies under presidential control.
It begins:
Section 1. Policy and Purpose. The Constitution vests all executive power in the President and charges him with faithfully executing the laws.
That is correct. The first sentence of Article II is:
The executive Power shall be vested in a President of the United States of America.
The order continues:
Since it would be impossible for the President to single-handedly perform all the executive business of the Federal Government, the Constitution also provides for subordinate officers to assist the President in his executive duties. In the exercise of their often-considerable authority, these executive branch officials remain subject to the President’s ongoing supervision and control. The President in turn is regularly elected by and accountable to the American people.
All true. So where do the “independent” agencies come in?
However, 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.
That is true, too. Liberals like the concept of “independent” executive agencies, because they are staffed overwhelmingly by beltway liberals and can be counted on to be guided by “experts,” who typically reflect liberal presumptions of the day.
So what does Trump propose to do about it?
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.
Under Article II, the concept of an “independent executive agency” is an oxymoron. Executive powers are vested in the President. For liberals, lack of accountability is a feature, not a bug. But it is not what the Constitution contemplates.
These are the Order’s specific measures to bring the “independent” agencies under democratic control:
* “[A]ll executive departments and agencies, including so-called independent agencies, shall submit for review all proposed and final significant regulatory actions to the Office of Information and Regulatory Affairs (OIRA) within the Executive Office of the President before publication in the Federal Register.”
* “The Director of OMB shall establish performance standards and management objectives for independent agency heads, as appropriate and consistent with applicable law, and report periodically to the President on their performance and efficiency in attaining such standards and objectives.”
* “The Director of OMB shall, on an ongoing basis:
(a) review independent regulatory agencies’ obligations for consistency with the President’s policies and priorities….”
* “[I]ndependent regulatory agency chairmen shall regularly consult with and coordinate policies and priorities with the directors of OMB, the White House Domestic Policy Council, and the White House National Economic Council.”
It is notable that the order does not apply to certain important functions of the Federal Reserve:
This order shall not apply to the Board of Governors of the Federal Reserve System or to the Federal Open Market Committee in its conduct of monetary policy. This order shall apply to the Board of Governors of the Federal Reserve System only in connection with its conduct and authorities directly related to its supervision and regulation of financial institutions.
This is great, and entirely appropriate:
The President and the Attorney General, subject to the President’s supervision and control, shall provide authoritative interpretations of law for the executive branch. The President and the Attorney General’s opinions on questions of law are controlling on all employees in the conduct of their official duties. 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.
One of the enduring problems of federal governance, in terms of both good policy and compliance with the Constitution, has been the existence of a permanent cadre of left-leaning bureaucrats who have acted to undermine the policies of Republican administrations. It cannot be emphasized enough that this condition is antithetical to the Constitution.
The unelected “fourth branch” may be beloved by liberals, but, to the extent that it deprives the President of his Article II authority, it is unconstitutional. Yesterday’s Order should go a long way toward re-establishing the democracy that is described in our Constitution.
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