OPINION:
The independent regulatory agencies are among the most troublesome weeds that grow in the federal government. Resistant to change, indifferent to election results and insulated substantially from popular sovereignty by the laws that created them, they were structured by the progressives a century ago specifically to avoid and dilute presidential authority.
These agencies are characterized by staggered terms of office for the commissioners who run them and organic statutes that typically require a partisan mix of commissioners and preclude the president from firing those commissioners for any reason.
Depending on which side of the question one is arguing, these regulatory agencies either act as circuit breakers for partisan sentiments or active obstructions to realizing the will of the people as expressed in elections. They are either the repositories of neutral expertise or are interested parties in the scope and scale of the regulatory agenda they set.
If these agencies were in the business of licensing barbers, no one would care. Unfortunately, the progressives of the early 20th century understood that the real power of the federal government resides in the ability to destroy or deform companies and industries through regulation. It is not accidental that the independent regulatory agencies regulate everything worth regulating: finance, energy, interest rates, labor, communications, trade, banks, housing, transportation, etc.
The agencies, which include the Securities and Exchange Commission, the Commodity Futures Trading Commission, the Federal Reserve, the Federal Deposit Insurance Corp., the Federal Communications Commission and the Federal Trade Commission, are the backbone of the modern regulatory state and are characterized by a high degree of specialized knowledge, which is mirrored by their alumni in law firms and lobbying companies around Washington.
The bad news is that in many instances, these agencies and the expertise they possess are only tangentially responsive to the elected president.
The Trump administration has been clear that it wants to challenge the independence of these regulatory agencies. In fact, within 10 days of taking office, the president fired commissioners from the Equal Employment Opportunity Commission and the National Labor Relations Board specifically to create a legal challenge directed at the constitutionality of the idea that commissioners at independent regulatory agencies can’t be removed by the president other than for cause.
That makes sense. Article II of the Constitution seems pretty straightforward and starts off with: “The executive Power shall be vested in a President of the United States of America.” The Constitution doesn’t say some of the executive power, nor does it suggest that the executive power is somehow severable. The independent regulatory agencies certainly seem to be executive branch agencies. Team Trump seems to be right about this question.
As in all things, however, you should be careful what you wish for. There is no doubt that bringing these agencies under the immediate reach of the president would be salutary concerning informing elections, thereby increasing and clarifying the voice that the voters have in their governance. There is also no doubt that it would complicate the ability of businesses to make durable plans, in considerable measure because if the regulatory functions performed by these agencies become subject entirely to electoral outcomes, it will be impossible for anyone to predict and therefore plan for regulatory outcomes for anything longer than a handful of years.
• Michael McKenna is a contributing editor at The Washington Times.
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