(NewsNation) — President Donald Trump’s executive order shifting independent agencies to fall under his authority appears to be a strategic move to put the definition of the president’s scope of power in the hands of the U.S. Supreme Court, legal experts say.
Trump issued an order Tuesday requiring agencies that have long been congressionally authorized to be independent from the White House to now answer to him. This includes the Federal Communication Commission, the Postal Service and the Federal Trade Commission.
The move follows a legal idea called the “unitary executive” theory, which places executive authority on the president at the expense of Congress, according to Cornell University’s Legal Information Institute.
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The Supreme Court has already shown a willingness to embrace the theory, and Trump’s presidency could be what tips the scale, Jeffrey Lubbers, a professor of administrative law at American University’s Washington College of Law, told NewsNation.
The nation’s highest court has been trending towards this doctrine through several recent decisions, most notably its ruling to grant presidents absolute immunity from prosecution for official acts. The case stemmed from the Justice Department’s effort to prosecute Trump for allegedly trying to block the results of the 2020 election.
“It’s all part of an overall strategy to take control of these 20 or 25 regulatory agencies that issue some important regulations,” he said. “But Trump wants to do it sort of as a matter of constitutional law so that he, as president, has control over all of them.”
The White House has described Trump’s directive as “ensuring that all federal agencies are accountable to the American people, as required by the Constitution.”
President Donald Trump listens as Robert F. Kennedy Jr. speaks in the Oval Office at the White House on Feb. 13, 2025, in Washington. (Alex Brandon, Associated Press)
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Trump has already installed Republicans to head many of these agencies, but his order takes control further, Lubbers said.
These agencies will likely pull back on regulations that are pending, not enforce laws that were put forth during the Biden administration and act with less regulatory oversight, he argued.
“It’s all part of trying to bring these independent agencies under the same control as the Cabinet departments and agencies that fall under the president,” he said.
Many of these agencies function as multimember commissions that vote on decisions with both Republican and Democratic-appointed members to ensure fair application of the law.
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Several presidents have maintained this boundary for decades. Trump’s order aims to do away with that as part of a broader push to assert authority over the government by possibly limiting the spending of congressionally approved funds, which could set up lawsuits and lead courts to step in, Shawn Donahue, a political science professor at the University at Buffalo, said.
Under Trump’s order, the White House Office of Management and Budget would set performance standards and management objectives for the heads of independent agencies.
The OMB could also change the funding apportioned to the agencies that might be in conflict with the president’s agenda. The heads of independent agencies would need to have special White House liaisons to coordinate with the president’s aides and advisers.
Trump has already fired leaders serving terms at several independent agencies, including the National Labor Relations Board, the Equal Employment Opportunity Commission and the Federal Labor Relations Authority. These firings have already been challenged in court.
FILE – President Donald Trump signs an executive order on birthright citizenship in the Oval Office of the White House in Washington, Jan. 20, 2025. (AP Photo/Evan Vucci, File)
“The long-term game [for Trump] is basically that eventually the court’s going to start cutting back the powers of these independent agencies, and they signaled that already,” Lubbers said.
“But the short game for him is that he wants to get control right away, and that’s why he’s acting so fast.”
Trump’s order is another road to the Supreme Court
Trump’s executive order appears to be a path to the Supreme Court, which will be tasked with deciding how much power the president should have, Donahue said.
“It definitely seems like this is flowing into the unitary executive theory that says Congress really doesn’t have that much of a role in setting up independent agencies. It’s more up to the executive branch to have those things align with them,” he said.
According to the unitary executive theory, the president possesses sole authority over the executive branch. The most controversial aspect of the theory is the president’s removal power, which allows them to remove any appointed subordinate officials of the executive branch.
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Trump likely believes he has a good shot with the Supreme Court ruling in his favor, and this appears to be one of his roads to get to them, Donahue said.
The Supreme Court has been more open to expanding executive power, especially under the Trump administration, but also going after “the administrative state,” Donahue said, referring to a court’s ruling last year that rejected a 40-year-old legal doctrine that effectively reduced the power of executive branch agencies.
Some of these departments, like the FTC and the Federal Deposit Insurance Corporation, had been set up for almost 100 years to be independent, so this theory would turn that on its head, he said.
