By Kennedy Maize
Presidential executive orders are not law. They do not override existing law.
Yet that is the claim that President Trump and, more specifically Russell Vought, his Office of Management and Budget director, make in a Feb. 18 executive order, “Ensuring Accountability for All Agencies.”
The order claims that “previous administrations have allowed so-called ‘independent regulatory agencies’ to operate with minimal Presidential supervision. These regulatory agencies currently exercise substantial executive authority without sufficient accountability to the President, and through him, to the American people. Moreover, these regulatory agencies have been permitted to promulgate significant regulations without review by the President.”
This is entirely specious. Congress, not “previous administrations,” created these agencies and specified that they are independent of the current occupant of the White House. They are designed to be insulated from partisan political interests and have long-established legal procedures to prevent corrupt interference and outside dealmaking.
The Trump executive order attempts to kneecap all these agencies, without specifying them by name (and certainly not by their legal authority), removing their independence. It would ensconce them under the opaque purview of the presidential Office of Management and Budget.
Some details:
- The “independent” agency directors “shall regularly consult with and coordinate policies and priorities with the directors of OMB, the White House Domestic Policy Council, and the White House National Economic Council.”
- The agency director must “establish a position of White House Liaison in their respective agencies. Such position shall be in grade 15 of the General Schedule and shall be placed in Schedule C of the excepted service” [Ed.–meaning they serve at the president’s will].
- The agency head “shall submit agency strategic plans developed pursuant to the Government Performance and Results Act of 1993 to the Director of OMB for clearance prior to finalization.”
The first and third points are pretty close to existing practice and largely had waving. The second point is most troubling. These hires will be the White House’s commissars in the now-dependent agencies. Their job will be political indoctrination and detection of political deviation.
Agency proceedings will become a meaningless charade. The commissars will determine the agenda, the proceedings, and the outcome. Under this executive order, if it withstands opposition, the Administrative Procedures Act will become a dead letter.
The order throws open a door to corruption. It is difficult to believe that any dedicated regulator would choose to serve in such a sham agency.
President Trump and his puppet master Vought, architect of Project 2025, are not conservatives. They do not support small government limited by external checks and balances. They advocate unitary government, political structures with only one level of authority. They support autocracy. Trump on Wednesday (Feb. 19) favorably compared himself to a king.
For readers of this publication, two independent agencies are most directly infected by the Trump order: The Federal Energy Regulatory Commission (FERC) and the U.S. Nuclear Regulatory Commission (NRC).
FERC
In broad strokes, FERC regulates the interstate transmission of electricity, crude oil, and natural gas. In addition, FERC regulates hydroelectric dams and oversees utility mergers.
FERC’s roots date to 1920 when Congress created the Federal Power Commission to coordinate federal hydroelectric projects. In the early days, all the employees were borrowed on detail from the Secretaries of War, Interior, Agriculture. Congress in 1928 gave the FPC authority to hire its own staff. In 1930, a five-member bipartisan commission was born.
The agency’s authority expanded greatly when Congress passed the Federal Power Act of 1935 and the 1938 Natural Gas Act. Supreme Court decisions in 1954 and 1964 ratified the agency’s authority over interstate electric and gas.
When Congress created the U.S. Department of Energy in 1977, the law renamed the FPC to the Federal Energy Regulatory Commission and established its current structure under the titular organization chart of DOE but fully independent.
The order “threatens to undermine the role of such agencies in bringing expertise and collaborative decision making to the complex questions entrusted to them by Congress.” Donald Santa
Commenting on the Trump executive order, former FERC Commissioner Donald Santa (1993-1997) told The Quad Report that the order “threatens to undermine the role of such agencies in bringing expertise and collaborative decision making to the complex questions entrusted to them by Congress.
“One need not look far for an example of how this approach could have produced a very different result in FERC’s administration of its responsibilities under the Federal Power Act. Think about the proposed rule that Secretary of Energy Perry sent to FERC during the president’s first administration to amend the rules governing wholesale electric power markets to subsidize nuclear and coal-fired generators.
“Would the White House have approved the commission’s decision to reject the proposal? How would the prospect of being dismissed by the president have affected the votes of commissioners who believed that the proposal did not satisfy the standards established by the Federal Power Act?”
NRC
The NRC also has deep roots, beginning with the World War II Manhattan Project, created to build the atomic bombs the U.S. dropped on Japan to end the war. In 1946, Congress created the Atomic Energy Commission to oversee nuclear weapons. The Eisenhower administration in 1954 modified the law to encourage the development of civilian nuclear power. During the AEC’s lifetime, part of the agency was devoted to nuclear safety, although that role was decidedly subservient to the atomic energy enthusiasts who ran the AEC.
Private and public dissatisfaction with the AEC’s downgrading of safety issues arose during the 1970s. Among the major contributors to the concern about the AEC’s downgrading of nuclear safety was the private-sector Union of Concerned Scientists (UCS) public interest group.
The NRC’s account of its history notes, “By 1974, the AEC’s regulatory programs had come under such strong attack that Congress decided to abolish the agency.” Congress created the NRC in 1976 as a free-standing, independent regulatory safety agency divorced from promoting nuclear power. Congress gave the agency the power to review the safety of nuclear power plant proposals and designs and license them to operate, as well as review and regulate their operation.
Last year, Congress passed the ADVANCE Act, modifying the NRC’s mission statement to take account of the current wave of proposed new reactor technologies during its licensing reviews and oversight. The bipartisan law did not undercut the NRC’s fundamental independence or regulatory authority.
Nuclear physicist Edwin Lyman, who monitors the NRC for the UCS, commented to The Quad Report about the Trump executive order on independent agencies, “The age of official corruption is going to breathtaking in scope. And here I was fighting to keep NRC from changing its sad little mission statement.
“This could fling the doors wide open for Musk’s friends.”
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