President Donald Trump’s Department of Government Efficiency may be hogging all the headlines, but it is the steps Trump has taken to restore the Constitution’s original understanding of the separation of powers that will etch his administration in history books for generations.
This week, Trump signed a new executive order titled “Ensuring Accountability for All Agencies” that directs all “independent regulatory agencies” to submit all “final significant regulatory actions” to the White House Office of Information and Regulatory Affairs just as every other federal agency is required to by existing law.
This executive order comes after Trump has made other moves to bring so-called independent federal agencies under control by relieving members of their leadership from their posts. Trump removed National Labor Relations Board Chairwoman Gwynne Wilcox, a Biden appointee, from her job on his first day in office, prompting a challenge by Wilcox in federal court. Trump has also fired Democrats from the Equal Employment Opportunity Commission and the Office of Special Counsel. One of these cases will assuredly reach the Supreme Court soon.
And Trump will most likely win.
In 2020, the Supreme Court already held in Seila Law LLC v. Consumer Financial Protection Bureau that the design of the CFPB was unconstitutional since the agency exercised not only significant “rulemaking and enforcement powers” but also “extensive adjudicatory authority” without proper presidential accountability. Instead of invalidating the entire agency, the Supreme Court held that the director of the CFPB should be able to be removed by the president.
At the time, the Supreme Court declined to overturn Humphrey’s Executor v. United States, the 1935 decision that blessed the so-called independence of the Federal Trade Commission since the board was supposedly “nonpartisan” and designed to “act with entire impartiality.” The FTC, at the time, only exercised “quasi-legislative or quasi-judicial powers.” Humphrey’s Executor has since been used to defend the vast expansion of independent agency powers.
But after 90 years, the theoretical basis of Humphrey’s Executor has proved lacking. There is nothing nonpartisan about any of the so-called independent agencies, as everyone knows that the agencies are completely partisan and control is determined by which party enjoys a majority of appointed board members. No one believes these agencies “act with impartiality.” Not only has the FTC’s powers been greatly expanded since 1935, but all of the “independent” agencies Trump is trying to bring under control exercise vast legislative, judicial, and executive powers.
This is not what the authors of the Constitution intended at all, and it wasn’t until President Franklin Roosevelt threatened to pack the Supreme Court that these previously unconstitutional blendings of the legislative, judicial, and executive branches were allowed.
Some have pointed to the Sinking Fund Commission of 1790 as an example of an independent agency that exercised legislative and executive power outside of presidential control. But this is not the function the Sinking Fund Commission performed. Proposed by Treasury Secretary Alexander Hamilton, the Sinking Fund Commission was more like the debt ceiling of its day.
TRUMP NEEDS CONGRESS TO PASS SUSTAINABLE PERMITTING REFORM
Article I of the Constitution vests the power to borrow money in Congress, not the president. What the Sinking Fund Commission did was grant the president the power to borrow money but only with the permission of the Sinking Fund Commission. Importantly, the Sinking Fund Commission had no power outside of the president. It could not sell government bonds on its own. Only the president could. And while the president could not sell bonds without the Sinking Fund Commission’s permission, he was under no obligation to sell bonds if the Sinking Fund Commission recommended he do so.
The authors of the Constitution clearly separated the legislative, executive, and judicial powers into three branches of government and then carefully designed a system of checks and balances to assure the democratically accountable use of those powers. That balance was then eroded and corrupted over time, creating an unelected fourth branch of government that was unaccountable to the people. For decades, conservatives have fought to restore the original vision of the founders. Trump is making that vision a reality.