New Executive Order Aims to Curb the Authority of Independent Agencies, Including the FCC

Key Takeaways:

• Yesterday, President Trump signed a new EO that attempts to bring independent regulatory agencies, such as the FCC, under greater presidential control.
• Among other things, the EO requires the heads of independent agencies to consult more closely with the White House on their policy objectives, provides for greater oversight by OMB and OIRA over independent agency action (including new rules, budgets and spending), and binds agency employees to the President’s interpretation of the law.
• Historically, independent agencies are insulated from presidential control and are delegated authority by Congress. This EO marks a significant departure from the status quo.

On February 18, 2025, President Trump issued a new Executive Order (EO) entitled “Ensuring Accountability for All Agencies,” which attempts to expand presidential authority over heretofore independent regulatory agencies. The Federal Communications Commission (FCC) is one of these agencies. Independent agencies are typically delegated authority over a particular subject matter area by Congress via statute. Independent agencies are often delegated jurisdiction over issues that are deemed too technical or complex to be effectively regulated by Congress through specific laws. Telecommunications is one of these subject areas. Unlike executive agencies, which are overseen by a single agency head appointed by the President, independent agencies are typically led by a commission or board of multiple members—often with staggered terms and subject to statutory bipartisan membership requirements—who are nominated by the President and subject to Senate confirmation. In the past, this structure—paired with the President’s limited authority to remove members of the board or FCC for specific reasons—has insulated independent agencies from executive branch control.

The new EO marks a significant departure from this regime by adopting several new procedures to subject independent agencies to more stringent executive branch oversight, including the following:

• Requirement to Consult with Executive Office of the President. The EO directs the chairs of independent regulatory agencies to “regularly consult with and coordinate policies and priorities" with the directors of the Office of Management and Budget (OMB), the White House Domestic Policy Council, and the White House National Economic Council, and to designate someone within each agency to serve as the agency’s “White House Liaison.” Additionally, independent agency leadership will be required to submit agency strategic plans for OMB approval pursuant to the Government Performance and Results Act of 1993.
• Executive Branch Employees Bound to the President’s Interpretation of the Law. The EO states that the President and Attorney General shall “provide authoritative interpretations of law for the executive branch,” which will be “controlling on all employees in the conduct of their official duties.” The EO forbids any employee of the executive branch acting in their official capacity from advancing “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, including but not limited to the issuance of regulations, guidance, and positions advanced in litigation,” unless authorized to do so by the President “or in writing by the Attorney General.”
• Significant Regulatory Actions Subject to OIRA Review. All agencies will be required to submit for review all proposed and final significant regulatory actions to the Office of Information and Regulatory Affairs (OIRA) within the Executive Office of the President before publication in the Federal Register. This is a departure from the longstanding exemption from such review for independent agency action under EO 12866, adopted in 1993.
• Agency Performance Standards and Management Objectives to Be Established by OMB. The Director of OMB is directed to establish performance standards and management objectives for independent agency heads, and “report periodically to the President on their performance and efficiency in attaining such standards and objectives.”
• OMB Oversight Over Apportionments for Independent Agencies. The Director of OMB is also directed to “review independent regulatory agencies’ obligations for consistency with the President’s policies and priorities,” and to consult with the agencies’ leadership “and adjust such agencies’ apportionments by activity, function, project, or object, as necessary and appropriate, to advance the President’s policies and priorities.” This explicitly includes the power to prohibit independent regulatory agencies from “expending appropriations on particular activities, functions, projects or objects.”

The EO states that these actions are necessary to “ensure Presidential supervision and control of the entire executive branch,” and to keep the federal government “truly accountable to the American people.”

The EO is the latest move by President Trump to consolidate power in the executive branch and to limit the independence and discretion of federal agencies more generally. While some aspects of the EO may be comparatively uncontroversial—such as the requirement to consult with the White House on agency policies and priorities—others, such as the ability to restrict agency spending on matters the President deems inconsistent with his policies and priorities, will likely be subject to litigation and constitutional challenge. We will be monitoring for new developments, and will publish updates as they become available.