Trump Pledging White House Authority Over FCC, FTC

Trump said last month part of his agenda if reelected would "bring the independent regulatory agencies, such as the FCC and the FTC, back under Presidential authority, as the Constitution demands." "These agencies do not get to become a fourth branch of government, issuing rules and edicts all by themselves. And that’s what they’ve been doing," he said. "We will require that they submit any regulations they are considering for White House review." The campaign didn't comment.

Expanding OIRA's umbrella to independent agencies could be politically controversial and face criticism as seemingly undermining agency expertise, said Paul Ray, OIRA administrator in 2020 and 2021. Likely opponents would include liberals who seek to insulate agencies from political control of even one's own party -- "the Wilsonian ideal," said Ray, now director of the Heritage Foundation's Roe Institute for Economic Policy Studies.

The OIRA review process dates back to the Reagan administration. DOJ's Office of Legal Counsel (OLC) said then that OIRA review could cover independent agencies as well as executive branch ones, but instituting the review itself was thought to be a big change and the White House didn't want to tangle with Congress over agencies that had been in its bailiwick, said Susan Dudley, George Washington University Regulatory Studies Center director. The Clinton administration also looked at expanding OIRA's umbrella and made the same choice, she said.

Executive order (EO) 12866, issued by the Clinton White House in 1993 to revise the regulatory agency process, exempts independent regulatory agencies from having to submit significant regulatory actions for OIRA review. But having those independent regulatory agencies comply with the centralized regulatory review process "would not test any statutory limits," per a 2019 DOJ OLC opinion. The White House "may supervise an agency head to ensure compliance with the duties of office and with principles of good governance," it said. Independent agency structures like multi-member guidance and open-meeting requirements "likewise do not preclude those agencies from complying with EO 12866," it said. It said various court decisions, including the U.S. Supreme Court's 1935 Humphrey's Executor decision, confirm that independent agencies execute federal law and are part of the executive branch, OLC said.

Congressional Action?

As president, Trump involved himself in FCC policy in the traditional way, exercising his authority to withdraw the nomination of Republican Commissioner Mike O’Rielly for another term late in his presidency (see 2008030072) after O’Rielly said it’s “First Amendment gibberish” to argue that proposals to regulate social media platforms’ editorial privileges are pro-free speech. Trump tried, but failed, to get the FCC to issue a declaratory order on Communications Decency Act Section 230 targeting alleged social media bias (see 2101190053).

“It’s sad and dangerous to see the administrative agencies of our government under attack, both by candidates for high office and the courts,” emailed former FCC Commissioner Michael Copps. “We have had regulatory agencies for way over a hundred years to protect consumers and curb monopolies,” he said: “They have generally worked well. Why tinker with what ain’t broken?”

What Trump is calling for requires congressional action, said some former FCCers and others. Former Commissioner Robert McDowell sees little likelihood Trump would get what he wants from Congress. "Candidates always make grand policy pronouncements during campaigns, but this one would require legislation,” he said. Putting the FCC's functions under the executive branch, “similar to what many other countries do, is an idea that has rattled around think tanks for decades, but the reality is it has little chance of passage without an overwhelming majority in Congress who think like the president,” he said: “This may make for potent campaign rhetoric with the base, but it is not likely to become law."

“The FCC was deliberately designed to be independent precisely to stop presidents from doing what Trump tried to do on multiple occasions -- use the power [of the White House] to regulate electronic media as a tool to control the press and free flow of information,” said Public Knowledge Senior Vice President Harold Feld. In his four years as president, Trump asked the FCC to pull NBC's broadcast licenses because he was offended by Saturday Night Live sketches, repeatedly looked for ways to go after CNN, and tried to use the FCC to regulate social media platforms, Feld noted. These weren’t “idle threats,” Feld said: “We saw repeatedly during the Trump administration that Trump had no qualms about weaponizing agencies in a manner unheard of in modern times and more consistent with a dictatorship than a democracy.” Getting legislation through Congress would be difficult, he predicted. It's less clear what would happen if the status of independent agencies were challenged in the Supreme Court, though the court hasn’t indicated “it wants to eliminate independent agencies entirely,” he said.

Trump’s pronouncements are “double talk,” said Benton Institute for Broadband & Society Senior Counselor Andrew Schwartzman. “Bringing the FCC and FTC directly under presidential control would require legislation, so all he can promise at this point is to propose legislation,” he said. Regulations are already submitted for review at OMB, but a president can’t “veto” regulations he doesn’t like, Schwartzman noted: “The most he can do under current law is to call on Congress to do that via the Congressional Review Act.”

“These are just talking points regarding ‘big government,’ ‘the deep state’ and ‘the swamp’ that will play well to his base, but don't really signal at an operational level what we might expect out of a new Trump administration,” emailed Jim Dunstan, TechFreedom general counsel. Going after the FTC makes more sense since it’s attempting “to exert oversized influence on the U.S. economy,” he said: On the FCC side, the campaign is likely seeing what happened to the Gigi Sohn nomination and figures talking about “FCC overreach will resonate with Republican voters.”

The statement “makes more sense as a legislative agenda item than as an executive action,” said Joe Kane, Information Technology and Innovation Foundation broadband and spectrum policy director: “As an independent agency, the FCC gets its power from the Communications Act, which does not subject FCC actions to White House review. The president can exercise some pull through their designation of the chairperson, but more extensive executive oversight would require legislative action.”

“From a constitutional separation of powers perspective, there is a pretty sound argument that the actions of the independent agencies like the FCC and FTC should be subject to greater presidential control,” emailed Free State Foundation President Randolph May: “That they are often referred to as the ‘Fourth Branch’ is a tell-tale sign of their suspect constitutional status. And the Supreme Court's jurisprudence seems to be moving in this direction.”

Beyond OIRA expansion, a Trump White House also could pursue statutory amendments regarding the independent status of indie agencies, said Michael Herz, administrative law professor at Yeshiva University's Cardozo School of Law. “God does not create independent agencies. … Congress does” and it could change its mind, he said.

There have been legislative efforts to require independent agencies to submit to OIRA review, such as the Independent Agency Regulatory Analysis Act, introduced in six consecutive sessions of Congress by Sen. Rob Portman, R-Ohio, most recently S-2279 in 2021.

Another possible route for a Trump White House would be firing the head of an independent agency and pursuing the inevitable legal fight over that action all the way to the Supreme Court, said Cory Coglianese, director of the University of Pennsylvania's Penn Program on Regulation. SCOTUS signaled in recent years that a majority may be prepared to declare unconstitutional the independence of agency leaders from the executive branch, he said. Those signals include the court's 2010 Free Enterprise Board decision on limits on removing Public Company Accounting Oversight Board members and the court's 2020 Seila Law decision on limits on the president's authority to remove the Consumer Financial Protection Bureau head, he said.

Such decisions are part of a broader trend running counter to the idea of independent agencies, with their constitutional permissibility five years from now "in doubt," Herz said.

OIRA at Work

OIRA review can take from a day for a short, simple order where there's demonstrated pressing need, to months, said Heritage Foundation's Ray. Lengthy reviews usually indicate another agency or White House office has raised a red flag about the proposal, he said. Proposed rules on occasion get rejected or withdrawn by the agency if OIRA indicates a rule should be, he said. Ray said the OIRA process usually involves a pair of submissions -- the proposed rule before it appears in the Federal Register and the final rule before FR publication. He said concerns about such a move undermining agency expertise "is misplaced" because OIRA review is the way the executive branch coordinates all its activities and takes advantage of the knowledge of all agencies.

Republicans often think wider OIRA review will lead to fewer regulations, but there's often Democratic support out of a belief in the value of required cost/benefit analysis and the pluses of agency coordination, said Yeshiva's Herz. But there's "no question" the OIRA review process overall tends to lead to less-stringent regulations, particularly in Republican administrations, he said. An EPA proposal in President Barack Obama's administration to reduce the ozone ambient air quality standard couldn't get through the OIRA process, partly because of outside pressure on OIRA, he said.

“Every president would like to have that power [over independent agencies] most of the time" but has wanted to avoid the political fight, Herz said. And in reality presidents have much more control over independent agencies than the structure of independent agencies would imply, he said. The president's picking the chair and the president's party having a majority of members "gets you most of what you need if you're the White House on important policy issues," he said. Herz said chairs are chosen "after discussion, after scrutiny, precisely because this person is reliable, shares the president's policy priorities [and] is 'with the program,' as they say."

Proponents also cite arguments agencies should better reflect the political wishes of voters. "We elect the president; we don't elect the head of an agency," said GWU's Dudley.

Critics of wider OIRA authority worry about overly broad presidential power. Since the start of the 20th century, there have been efforts to ensure government can proceed with some autonomy from the worst aspects of electoral politics, like civil service protection and independent agencies, said Coglianese. However, even when agency leadership can be removed at will, there are constraints like Senate confirmation that don't allow replacement at will, he said. That could temper urges to remove an agency head or commissioner, he said.