Trump’s new order: He’s not just above the law, he is the law
On Tuesday, one of Donald Trump’s minions, White House staff secretary Will Scharf, got up and announced, essentially, that the president is now a king.
It was part of a weirdly low-energy afternoon affair where Trump stood by while Scharf plowed his way through a prepared statement that the executive order Trump was signing “reestablishes the longstanding norm that only the president or the attorney general can speak for the United States when stating an opinion as to what the law is.”
This is, of course, not a longstanding norm. It’s not something being reestablished. There’s no history of the president or the attorney general being the only people who can say what the law is. This even goes far beyond Trump’s efforts at realizing the Republican dream of the unitary executive—the notion that a president has complete control over executive branch personnel.
Declaring that only the president can say what the law is thoroughly tramples the check and balance of judicial review, whereby the courts, not the president, have the authority to determine if laws are constitutional. It also puts the president above the law. What possible law can bind Trump if he has unfettered power to simply say the law means something else?
While Scharf made his little speech about how Trump is the law, the bulk of the executive order is actually about eliminating the “independent” part of independent federal agencies.
Independent federal agencies are those where Congress has determined they should have some level of insulation from presidential power. These include the Federal Trade Commission and the National Labor Relations Board, among nearly two dozen others.
Typically, officials are appointed for fixed terms and can only be removed for reasons detailed in statute, such as malfeasance or failure to perform their duties. This allows those agencies to function independently of presidential whim and ensures there will always be commissioners from both political parties.
It’s no surprise Trump hates them.
The new executive order sweeps the independence of those agencies out of existence, even though Congress created such independence in duly passed laws governing those agencies.
Instead, according to Trump, the federal government is only truly accountable to the American people if all executive branch officials wielding “vast power” are “supervised and controlled by the people’s elected President.”
This stance would not only allow Trump to undo existing agencies’ independence but also prevent Congress from creating similarly independent agencies in the future. The assertion here is that it’s unconstitutional for Congress to try to create any agency that is in any way independent of the president’s whims.
Instead of a robust, independent, nonpartisan regulatory state, what Trump believes the Constitution requires is that the Office of Management and Budget treat appointed agency heads like middle managers who need to be put on an improvement plan.
The order directs Russ Vought, the head of OMB and one of the architects behind Project 2025, to “establish performance standards and management objectives for independent agency heads” and to report to the president on their “performance and efficiency in attaining such standards and objectives.” The agencies must also establish a White House liaison and regularly consult with OMB and the White House to coordinate policies.
Vought also gets the power of the purse over the formerly independent agencies, with Trump’s order giving him the authority to adjust those agencies’ apportionments “as necessary and appropriate, to advance the President’s policies and priorities.” That “adjustment” can include stopping those agencies from spending appropriated funds.
If that sounds a lot like an attempt to impound funds already allocated by Congress, a thing prohibited by the Impoundment Control Act of 1974, that’s because it is.
Those agencies will also now be required to submit any proposed significant regulatory actions to the Office of Information and Regulatory Affairs, which is part of OMB. This review has been required for decades for Cabinet-level agencies, which makes sense. Those agencies are headed by appointees who serve at the pleasure of the president, and major regulatory actions out of those agencies are intended to reflect the president’s policy preferences.
But the independent regulatory agencies are meant to be just that—independent. Congress designed them that way. This order eliminates the independence of appointees and the regulatory work of those agencies by giving the White House veto power over both.
If this executive order stopped here, it would be bad enough, particularly as it is part of a multi-pronged attack on independent agencies. Last week, Trump’s acting solicitor general, Sarah Harris, a former clerk to Justice Clarence Thomas, sent a letter to Sen. Dick Durbin declaring that the Department of Justice has determined that for-cause removal provisions for members of the Federal Trade Commission, the National Labor Relations Board, and the Consumer Product Safety Commission are unconstitutional.
Harris also said that the DOJ intends to ask the Supreme Court to overturn Humphrey’s Executor v. United States, the 90-year-old precedent that held that then-president Franklin Delano Roosevelt could only remove FTC members for reasons specified by Congress.
In fact, the administration has already run to the Supreme Court, whining that it isn’t fair that lower courts have blocked Trump from removing Hampton Dellinger, the head of the Office of Special Counsel, without cause.
The attack on the structure of independent agencies is an assertion of Trump’s power over personnel in the executive branch. Functionally, it’s an argument that it is unconstitutional for Congress to restrict the president’s ability to remove executive branch personnel—period.
But having absolute authority over who to hire and fire doesn’t go far enough for what Trump wants. He also wants absolute authority over how to spend money.
The final part of the executive order feels almost tacked on at first glance, given that the remainder specifically focuses on the destruction of independent agencies. But this is where the White House really swings for the fences, saying that the president and the attorney general “shall provide authoritative interpretations of law” for the executive branch and that their opinions on questions of law are controlling on all employees.
Regulations can only be enacted under an enabling statute, where Congress defines the powers of the agency and the types of rules it can make. By definition, then, the process of creating and reviewing regulations requires interpretation of the underlying laws.
Under this order, that power of interpretation would rest only in the hands of Trump and Attorney General Pam Bondi. So, while Congress can pass laws and appropriate funds, for example, Trump is asserting absolute authority to say that his interpretation of the law allows him to redirect or freeze funding—exactly what he is already trying to do.
Read as a whole, then, the executive order purports to give Trump unfettered control. Neither Congress nor the courts should be permitted to restrict his personnel or spending decisions. Indeed, it isn’t clear at all that Trump believes the other branches can provide any check or balance against the executive whatsoever.
Unfortunately, the Republicans in Congress seem perfectly fine with letting Trump usurp their constitutional authority. Their reactions to his illegal spending freezes and dismantling of agencies range from meek acceptance to outright excitement.
The conservatives on the Supreme Court spent the last term inventing presidential immunity out of whole cloth to protect Trump, and at least two of them—Neil Gorsuch and Clarence Thomas—have already said they’d overrule their own precedent in Humphrey’s Executor and give Trump the right to remove whoever he wants.
Conservatives will no doubt rediscover the necessity of limitations on the executive branch if a Democrat is elected, returning seamlessly to the Biden era, where much of the president’s regulatory agenda was blocked by the courts for somehow overreaching. At this rate, though, there won’t be much of an administrative state left.