Trump’s Latest Order Nearly Completes The Project 2025 Agenda

Written By Leeja Miller

Sources:

Transcript:

Yesterday, Trump signed an Executive Order that significantly advances the agenda of Project 2025 by placing control of independent regulatory agencies in the hands of the president and his loyalists. This will have far reaching impacts on everything from the CIA to employment discrimination to free speech to whether or not major companies are held accountable for flagrant violation of the laws. His supporters say it’s simply a move to bring our government back in line with the constitution. But what the constitution ACTUALLY says about this is far more murky than they let on, and the people who stand to gain the most from this are, once more, the billionaires and oligarchs in Trump’s ear. Let’s get into it.

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Another executive order Trump signed this week that you may have missed seeks to expand access to IVF, an issue that has been hotly contested lately.

This caught my eye on the Independent which used the headline “Trump signs executive order to ‘aggressively reduce’ IVF costs — after campaign pledge to make it free” This caught my eye because IVF has been so controversial and lately Republicans have been trying to work to get rid of it. So I wanted to know more.


Using the Ground News browser extension, it’s helpful to see that this news source has a right leaning bias. I genuinely love the Ground News web browser extension because I can see it while I browse news articles and if I want to see how other sources are framing the story I can click full coverage. 


On the Ground News website you can see that there are 147 sources covering this topic 


Among them, the left publication Pink News uses the headline:  "Trump signs executive order to expand IVF access 'so families have more babies’"   while the right-leaning Townhall frames it as: "Trump Fulfills Another Campaign Promise With Latest Executive Order" Focusing on two different sides of the same issue, a clear example of how consuming news from only one perspective can limit your understanding of a situation.


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First, let’s get a handle on independent regulatory agencies, because that’s what the order from yesterday is talking about. Unlike most agencies where there is a single director appointed by the President, independent agencies typically have a commission, board, or leadership body of 5 to 7 members. The president appoints these members and the senate confirms, just like other agency heads, but the members serve set terms, usually 4 years that are staggered so there’s never major turnover all at once, and there are statutory requirements that the president fill vacancies with members of both parties so that they do not come under control of whichever party is in power and are less subject to the whims of politics. The president is only allowed to remove an independent agency head for incompetence, incapacity, neglect of duty, or other good cause. He can’t just remove them willy nilly because he doesn’t agree with them. And obviously that makes Trump vewy vewy angwy. 


Examples of independent agencies include the FEC, FCC, FTC, SEC, CIA, Equal Employment Opportunity Commission, NASA, OSHA, the Nuclear Regulatory Commission, Office of Government Ethics, Social Security Administration, and more.


The order Trump signed yesterday is called Ensuring Accountability for All Agencies. It claims that independent regulatory agencies are operating unaccountable to the President, and thereby, unaccountable to the will of the people who elect the president. So it says now all agency heads are accountable to the president and must submit all regulatory actions they want to take to the Executive Office of the President for review.


The order also gives the president and the attorney general Pam Bondi “authoritative interpretation” power over what the law says– “no employee of the executive branch acting in their official capacity may advance an interpretation of the law as the position of the United States that contravenes the President or the Attorney General’s opinion on a matter of law” – this means that the attorneys at these agencies, like those at the SEC administering financial regulatory lawsuits against companies, do not get to do anything unless it perfectly aligns with Trump’s and Pam Bondi’s official interpretations of the regulations that those very agencies have written.


The order applies to all independent regulatory agencies but, concerningly, specifically mentions the federal election commission. It also names the Federal Reserve, saying that the Federal Reserve’s handling of monetary policy is off limits to the President, so their ability to raise or lower interest rates, for example, but all of its other functions are fair game for Presidential approval– reminder that the federal reserve oversees the regulations of banks and financial institutions


Independent agencies must comply within 60 days and will receive guidance from the director of the office of management and budget. That director was just confirmed and his name is Russel Vought. Vought is also temporarily the head of the CFPB, an independent agency that protects consumers from fraud. In his role there he has laid off employees and halted funding. Vought will also oversee performance standards and management objectives for all independent agency heads under this new order. Russell Vought is definitely a name you should know. He served as the OMB director at the end of the last Trump administration. He is a Republican hardliner and, according to Vox, an open Christian nationalist who founded a “think tank” called the Center for Renewing America. He is a proponent of “radical constitutionalism” which we’ll talk about more in a sec, and a central architect of Project 2025. In a video dropped by ProPublica of Vought speaking at an event put on by his think tank, Vought says, and I quote, “We want the bureaucrats to be traumatically affected. When they wake up in the morning, we want them to not want to go to work, because they are increasingly viewed as the villains. We want their funding to be shut down … We want to put them in trauma.” So this guy is now the director of the office of management and budget, which oversees all federal agencies and administers their budgets.


This new order gives the President and, through him, Russell Vought, the right to control how independent regulatory agencies spend their money and what they spend it on. And if you’re thinking wait Leeja I thought it was Congress who determined how federal money is spent??? You’d be right! The constitution gives congress the power of the purse. But under Vought and other’s “radical constitutionalism” that’s not REALLY what the constitution says. They believe in what’s called the presidential impoundment power–that Congress can appropriate the money but the President can decide whether or not it’s actually spent, and can order agencies to not spend anything if he wants to. Which doesn’t make logical sense that anyone at the founding thought that was the case when giving Congress the power of the purse that the president could just overrule that. But sure. 


This order is just a continuation of actions Trump has already taken against independent agencies. He’s already interfered with the CFPB and the National Labor Relations Board which handles government relations with unions and regulates against anti-union activity. Its chair Gwynne Wilcox was fired by Trump and she is suing to contest her dismissal


Office of Special Counsel head Hampton Dellinger was fired in a one sentence email earlier this month and he has also sued the Trump administration saying his termination was illegal under the law that protects independent agency heads from removal by the President, “except in cases of neglect of duty, malfeasance or inefficiency.”  A DC judge issued an order to allow Dellinger to keep his job as the case winds its way through court, Trump appealed, the DC circuit court of appeals denied Trump’s request, and now it has made its way to the Supreme Court–it’s the first time the Supreme Court has been given an opportunity to rule on Trump’s power grabs since he took office somehow less than a month ago.


So the central question here is about the president’s removal power: is he allowed to say who is in charge of these agencies that Congress explicitly created to be independent? Independent agencies have been part of the government for over 150 years. They grew in popularity especially during the New Deal, which was when agency power expanded generally, and they have been the ire of conservatives ever since. Even still, the idea that the president gets to direct the activities of independent agencies goes against the accepted understanding of the constitution, as it has been understood for the 150 years since independent agencies became a thing. Now that’s not to say that the ENTIRE executive order is completely unconstitutional-– according to legal experts there is constitutional basis in the President  requesting opinions from senior officials related to the duties of their offices, but giving the President the power to direct agency actions is against the will of Congress, the body responsible for creating the agencies. It is a separation of powers issue that Trump and his loyalists argue should fall in favor of greater concentration of power in one branch: the executive.


So what do these people believe? Let’s talk about the central tenet of “radical constitutionalism” that represents the goal of Project 2025 and what all of the chaos of the last month has been aiming towards: The Unitary Executive theory. What’s insidious about the unitary executive theory is that it is really easy to make it seem like it makes sense. Article 2 of the constitution says the president is the head of the executive branch, that he must take care that all the laws be faithfully executed, any agency Congress creates is part of the executive branch, the president was elected by the people, so the agencies should all be answerable to the President in order to make government answerable to the will the people. It’s just what the constitution says! They argue. This theory has been promoted by the right since the Reagan era to try to chip away at Congress’ power and any pockets of authority they try to create that’s independent of the President. It also furthers their agenda of dismantling the “deep state” and the many regulatory agencies that have popped up especially since the great depression when we realized hey actually there should be regulations in place to like protect people and stuff??


Per the WSJ: “Amanda Tyler, a law professor at the University of California, Berkeley, said Congress turned to the independent-agency structure well over a century ago to promote stability in government during a period of economic change. 


“The idea behind independent agencies is to have insulation from the political winds, ensuring that we don’t have wild volatility of policy,” she said. “If Trump prevails in wresting control of many of these agencies, that is the precedent in place for whoever succeeds him—potentially using that power for very different ends,” she said.”


Which indicates to me that they don’t plan on having anyone in power in the future that would take the presidential power they’re creating and use it for leftist/progressive ends.


The Supreme Court has 90 years of precedent that upholds the constitutionality of Congress barring the president from firing independent agency heads without cause. Trump’s acting solicitor general Sarah Harris has said the administration plans to ask the supreme court to overturn that precedent. The case is called Humphrey’s Executor vs. United States. William Humphrey was appointed by President Hoover to the Federal Trade commission. Then Roosevelt tried to remove him for political reasons. Humphrey died so his executor sued to get his lost salary from the job he shouldn’t have been terminated from. Hence the name Humphrey’s Executor. The court holds that the nature of independent agencies is one of quasi-judicial and quasi-legislative powers–they set regulations and then adjudicate those regulations. Their duties are not political or executive in nature, and therefore it was within Congress’ right to limit presidential control over the independent agencies. They are not considered “the arm or the eye of the executive” meaning they do not answer to the directives of the president, they answer to the directives set forth in the Congressionally written law that created it. “The power of removal here claimed for the President falls within this principle, since its coercive influence threatens the independence of a commission which is not only wholly disconnected from the executive department, but which, as already fully appears, was created by Congress as a means of carrying into operation legislative and judicial powers, and as an agency of the legislative and judicial departments.”


There is also primary evidence around the founding of our country that indicates some of the framers believed that the president’s power of removal absolutely had limits to only those who perform executive functions under the direction of the president. In Marbury vs. Madison a Supreme Court decision from 1803, the very first case you read in your year one constitutional law class in law school, “Mr. Madison quite evidently thought that, since the duties of that office were not purely of an executive nature, but partook of the judiciary quality as well, a different rule in respect of executive removal might well apply.” The Humphrey’s opinion clearly states, “whether the power of the President to remove an officer shall prevail over the authority of Congress to condition the power by fixing a definite term and precluding a removal except for cause will depend upon the character of the office.” There is not a blanket rule that the President controls the heads of every single agency created by Congress. It depends on what that agency does and whether it is primarily executive as opposed to legislative or judicial. Independent agencies that create regulations and adjudicate said regulations, explicitly away from the influence of the president, are NOT performing executive functions. To say otherwise oversteps the authority of Congress and throws the checks and balances system into chaos.


In 2020, the Supreme Court ruled that the CFPB structure was unconstitutional and allowed Trump to fire its director without cause, so there is precedent of this court deciding to go along with these power grabs, in contradiction of the Humphrey’s Executor decision. And that’s something this court loves to do–make up new precedent and then a year or two later point to the precedent they made and say it’s clearly a longstanding tradition, look at all this precedent!!! 


This isn’t normal–what Presidents normally do is respect the independence of the agencies and try to avoid anything that might even make it seem like they’re trying to interfere with their independence. Like to give you an example, it was controversial when Obama urged the FCC chair to adopt net neutrality in a video he posted in 2014, or when the FTC chair visited Obama in the white house the same day Google officials were on the premises while Google was actively under investigation. Republicans lost their shit when that happened. Now Trump is like oh no you answer to me and literally everything you do is now subject to my approval. This is a HUGE change of longstanding norms. Which is of course the entire point.


If we’re going to talk about government efficiency–agencies are beneficial to the efficiency of government. By dedicating experts to the task of creating regulations around specific limited areas, it means that they know what they’re doing and can efficiently regulate, unlike if it’s all in the hands of the President who doesn’t know jack shit about the topic, leading to mistakes or complete deregulation, which is the point. They are trying to get rid of these regulations because that benefits businesses and monied interests. But complete deregulation also goes against the constitution that said the President should make sure the laws be faithfully executed. There are a lot of laws Congress has written. Running a country of 330 million people over 2.3 BILLION acres of land is incredibly complicated. The president can’t, by himself, “take care that the laws be faithfully executed” when there are so many and it’s so complex, which is why he needs agencies. Without agencies, the laws cannot be faithfully executed because there’s no one there to execute them, and the president is knowingly removing experts in favor of political cronies with no understanding of what they’re doing, leading to chaos, which produces waste. And inefficiency. The idea of independent agencies reduces this potential for chaos by protecting from political upheaval every time a new president is elected, allowing these independent agencies to continue to regulate and adjudicate important laws, as written by Congress, which allows for greater efficiency. But of course efficiently enforcing laws against exploiting and abusing people is really inconvenient for, I don’t know, someone who makes electric vehicles that spontaneously combust, for example.


The main problem with all of this, is that while the unitary executive theory proponents claim that the constitution is very clear that the president controls the entire government, the constitution doesn’t actually say anything about agencies and who has power to remove agency heads. So every theory is just going off of extrapolations based on other external evidence. And so you have to also take practical considerations into account. Yes the constitution says the president must take care that the laws be faithfully executed, but it also says Congress can make any laws necessary and proper to carry out their constitutional powers. So would not the creation of an independent agency that isn’t subject to the whim of politics be necessary and proper for the Congress to carry out their constitutional power over interstate commerce, for example? It’s so much more complicated than Trump and unitary executive power proponents make it out to be. But the reality is this: there have been independent agencies for over 150 years. For the last 90 years it has been established supreme court precedent that the president cannot remove heads of those independent agencies without cause. And for that same amount of time, presidents have generally respected that reality. That’s the three branches of government agreeing on something. There is also the understood “first principles” of the constitution such as liberty and federalism and a separation of powers, that all stand in favor of Congress having the power to create these types of agencies. 


As professor David Driesen wrote in a 2020 Hastings law journal article titled The Unitary Executive Theory in Comparative Context, when comparing democratic declines in Hungary, Poland, and Turkey, “centralization of head-of-state control over the executive branch of government provides a pathway to autocracy. Indeed, unilateral presidential control of the executive branch constitutes a defining characteristic of autocracy.” So given the principles so important in the creation of this country and the constitution, that of separation of powers, democracy, and federalism, the ability of Congress to shield certain agencies that solely function in quasi-legislative and judicial roles, from the political whims of the executive is very much in line with the constitution. 


Despite strong arguments against the unitary executive theory, this supreme court seems primed to go along with this tide and overturn at least in part the 90 year old Humphrey’s Executor decision, paving the way for Trump to remove independent regulators in favor of people loyal to him. This will impact employment discrimination, workplace safety, but also the regulation of major companies, including those owned by Elon Musk, because it means that the people in charge of commissions like the SEC and the rules and regulations they write and enforce, will be beholden to big money and unlikely to enforce the laws Congress has written to protect all of us. Everything Trump has done in the last month has been in an effort to enact all of Project 2025, but this latest executive order is especially concerning given how important the independence of these agencies is to their ability to function and to regulate powerful actors that are hellbent on making as much money as possible while exploiting as many people as possible. They are a line of protection for all of us that Trump and his loyalists are trying to completely do away with. And the Supreme Court might just let them. 


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And if you liked this episode, you’ll like the one from Monday where I talk about the dismissal of the Eric Adams case.


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