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Tuesday’s Executive Order, “Ensuring Accountability for All Agencies,” has some big implications for key administrative agencies that are considered “independent” from the President compared to other agencies due to one or more features of their establishing legislation — for example, leadership by bipartisan panels of members who serve fixed terms. That includes the SEC and the FTC. Per the fact sheet, the new Executive Order states that all executive branch officials and employees are subject to Presidential supervision under Article II of the Constitution since “the Founders created a single President who is alone vested with ‘the executive Power’ and responsibility to ‘take Care that the Laws be faithfully executed.’” It goes on to say that:

– All agencies must submit all draft regulations for White House review

– All agencies must consult the White House on priorities and strategic plans

– The President and the AG (subject to the President’s supervision and control) provide “authoritative interpretations of law” for the executive branch

– Their “opinions on questions of law are controlling on all employees”

– OMB will adjust independent agencies apportionments, which may prohibit appropriations from being spent on particular activities or projects

– OMB will write “performance standards and management objectives” for the heads of independent agencies

– Independent agencies will hire a White House liaison to work with President Trump’s team

Here’s some helpful history from NPR:

The White House has had the power to review the regulations of government agencies for more than 30 years, since President Clinton signed an executive order calling for regulatory review. However, the policy has long exempted independent regulatory agencies . . .

Project 2025 references a 1935 Supreme Court decision, Humphrey’s Executor v. US, in which the Court decided that a president cannot fire the head of an independent agency. Project 2025’s chapter on the Department of Justice argues that that decision violates the separation of powers.

In Trump’s first term, his White House asked the Justice Department for an opinion on whether he could make independent agencies submit to White House regulatory review. The DOJ said yes, but Trump did not pursue that.

It also notes that this isn’t the first action by the Trump Administration that challenges this independence:

Trump has already fired high-ranking officials at independent agencies including the Equal Employment Opportunity Commission and the National Labor Relations Board, and also more than a dozen inspectors general at independent agencies. Those decisions have already sparked lawsuits against the administration that claim the firings were illegal.

While bemoaning the politicization of the SEC isn’t new, UC Berkeley law prof Amanda Tyler says in the WSJ that the structure of these independent agencies was intended to provide some “insulation from the political winds, ensuring that we don’t have wild volatility of policy . . . If Trump prevails in wresting control of many of these agencies, that is the precedent in place for whoever succeeds him—potentially using that power for very different ends.”

Finally, ICYMI, DOGE appears to be bringing (more of) its fray to the SEC.

– Meredith Ervine