One of the progressive era’s "innovations" was the creation of “independent federal agencies.” These agencies are not only authorized to enforce certain federal laws and regulations—they also have the power to adjudicate alleged violations of the laws or regulations in administrative courts. These agencies combine legislative, enforcement, and judicial functions making a mockery of the separation of powers which the drafters of the Constitution saw as central to the preservation of liberty. In addition, these agencies have limited accountability to the executive or legislative branches of government.
Fortunately, there are developments that are subjecting the regulatory agencies to increased control by the constitutional branches of government. In 2024, the U.S. Supreme Court overturned Chevron deference. Established in the 1984 case of Chevron v Natural Resources Defense Council, Chevron deference meant that courts should defer to federal agencies' interpretation of ambiguities in the federal laws the agency is charged with enforcing—unless the agency’s interpretation is unreasonable. Other recent court decisions have invoked the major questions doctrine to limit agencies’ ability to reinterpret their legislative mandates.
The major questions doctrine limits an agency’s power to adopt major new interpretations of its powers without being able to point to an explicit statutory authority for the change. The latest blow against the unaccountable power wielded by these “independent” agencies comes from the Fifth Circuit federal court. Last month, the court ruled that the National Labor Relations Board (NLRB) was unconstitutional since it was part of the executive branch—yet is protected from presidential “interference.” The Fifth Circuit applied the “unitary executive theory” which postulates that the President has authority over all parts of the executive agencies—even if congressionally-passed legislation gives the agencies autonomy. The unity executive theory can go too far in giving the President virtually unchecked authority—but it is certainly correct to give the President authority over federal agencies.
President Trump has already fired Democratic members of the NLRB, as well as of the Federal Trade Commission (FTC), and the US Merit Systems Protection Board. Trump’s actions have left the NLRB without a quorum so it cannot issue any new decisions. A federal court ruled that Trump exceeded his authority in firing the Democratic members of the NLRB—however that decision was “stayed” by the Supreme Court until the full court has the opportunity to rule on the case. The Supreme Court’s decision to stay the case broke along ideological lines, with the Court’s conservative majority voting to stay the case, and the liberal minority voting to allow the decision to go into effect.
The majority opinion suggests that the Court will ultimately uphold the President’s power to fire members of the NLRB and other federal agencies. However, the Court did suggest it would make an exception for the Federal Reserve as the Fed is a government partnership between the government and private banks. The real reason for this carveout is likely that the Court does not want to be blamed for throwing markets into turmoil by increasing the President’s ability to influence monetary policy.
While upholding the President’s authority to remove members of the board of an “independent” agency does rein in the “extra-constitutional” power of these agencies, it raises concerns that the President will have unchecked power them. This is why Congress should pass legislation giving both the President and Congress enhanced authority over the agencies. The legislation should also explicitly forbid the President from taking any action that undermines the due process rights of any American charged with violating a law enforced by one of the agencies.
Congress should also eliminate administrative law judges so that every American charged with violating federal laws or regulations has their case adjudicated before an independent federal court. Congress should also pass the REINS Act. The Act forbids federal agencies from enacting any “major” regulations (defined as those imposing economic costs of greater than $100 million a year) until they pass both houses of Congress and are signed into law by the President. These changes will not “neuter” the NLRB, the FTC, or any other federal agency. What they will do is restore some semblance of constitutional government to the administrative state.
