Trump’s New Executive Order Targets Independent Agencies

On February 18, President Donald Trump signed an executive order that could fundamentally reshape the regulatory landscape in Washington. The order mandates that all federal agencies, including so-called independent agencies, submit their draft regulations for White House review before they can be published in the Federal Register. This action is aimed at aligning all executive branch actions with presidential priorities and securing greater accountability for the American people. The implications of the order are extremely promising but also create some new vulnerabilities.

A Constitutional Question

The existence of independent regulatory agencies has long been a source of constitutional controversy. The U.S. Constitution establishes three branches of government—legislative, executive, and judicial. The president, as head of the executive branch, is vested with the duty to “take Care that the Laws be faithfully executed.” Yet, independent agencies such as the Federal Trade Commission, the Federal Communications Commission, and the Securities and Exchange Commission have historically operated outside the direct control of the President. (Their independence primarily stems from restrictions on the president’s power to remove their leaders.) These agencies exercise vast regulatory authority, issuing rules with profound economic and societal impacts, yet they have not been subjected to the same oversight mechanisms as traditional executive agencies.

This quasi-autonomous status raises fundamental constitutional questions. If the president and vice president are the only executive branch officials accountable to the American people, how can powerful regulatory agencies function without their direct oversight? Supporters of independent agencies argue their independence is needed to shield them from political influence. Critics respond that their independent status undermines democratic principles, effectively creating a fourth branch of government that is answerable to no one.

Executive Order 12866

To understand the significance of Trump’s latest executive order, it’s important to first understand Executive Order 12866, issued by President Bill Clinton in 1993. EO 12866 establishes a regulatory review process and requires executive agencies to assess the economic costs and benefits of their significant regulatory actions. This order empowers the Office of Information and Regulatory Affairs within the Office of Management and Budget to review draft regulations as well as to critique the accompanying economic analysis agencies prepare in support of their regulatory actions. This review process is meant to guarantee regulations are consistent with presidential priorities as well as backed by solid economic evidence.

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