[Adapted from an Essay from the Regulation Digest of the UPenn Program on Regulation]

Introduction

Independent regulatory agencies have been a part of the regulatory landscape since President Grover Cleveland signed the Interstate Commerce Act into law and created the Interstate Commerce Commission (ICC). Independent regulatory agencies are distinct from independent executive agencies, which typically have jurisdiction over specific areas and have a singular head that serves at the pleasure of the president.  In contrast, independent regulatory agencies created by Congress typically have multi-member boards with multi-year terms and operate with some degree of autonomy from the president. Over the last 137 years since creation of the ICC, independent regulatory agencies have proliferated and now hold jurisdiction over some of the most important – and often controversial – policy areas in the federal government.

A hallmark of the Trump Administration has been the White House’s concerted efforts to implement its vision of the unified executive – where all policy making segments of the executive branch report directly to the president. On February 18, 2025, President Trump signed Executive Order 14215 (EO 14215), Ensuring Accountability for All Agencies, that imposed a series of administration limits on independent agencies, intended to make those agencies more directly accountable to the president through the Office of Management and Budget (OMB). In addition to the administrative and management limitations imposed by the Executive Order, the administration has sought to challenge head-on the question of whether a president can terminate a member of an independent regulatory agency who had been confirmed for a term of years for any reason when Congress has limited that to “cause.”  Taken together, these actions raise the question of whether the nearly 140-year era of independent regulatory agencies has come to an abrupt end.

Historically, Congress has created the various independent regulatory agencies to regulate in specific areas. Rather than being governed by a singular agency head who has reporting authority to the president, they are instead governed by bipartisan, multi-member collegial boards or commissions with members who have staggered, overlapping terms. Typically, the members are Senate confirmed for a term of five years, and their governing statutes generally provide for removal only upon just cause. Some Independent Regulatory Agencies have been granted independent litigating authority by Congress, meaning they can bring or defend actions in federal court independent of the Department of Justice.¹  The agencies are typically headed by a chair who is designated by the president.²  Taken as a whole, the multi-member, bi-partisan design of independent regulatory agencies, in theory, provides a politically insulated and stable expert regulatory body for affected industries.

EO 14215

EO 14215 tries to balance the statutory independence intended by Congress with the Administration’s stated intent to exercise more direct policy control over independent regulatory agencies. Among its provisions, section 4 directs the head of OMB to establish “performance standards and management objectives” for agency heads; section 5 directs OMB to exercise control over agency “obligations” and “consult” with agency chairmen to “adjust such agencies apportionments … to advance the President’s policies and priorities”; section 6 directs agency chairmen to “regularly consult with and coordinate policies” with OMB, the Domestic Policy Council and National Economic Council in the White House and create a GS 15 White House Liaison at the agency; and section 7 states that “no employee of the executive branch acting in their official capacity may advance an interpretation of the law … that contravenes the President or the Attorney General.”  The final provision contains both a savings clause in section 8(b) that provides that the order does not “impair or otherwise affect … (i) the authority granted by law to an executive department, agency or the head thereof” and in section 8(c) that [it] “…shall be implemented consistent with applicable law…”

Any analysis of the effect of EO 14215 must begin with its drafter’s clear understanding of the independent regulatory agency legal framework – which is that EO 14215’s coercive provisions, if they are to be seen as such, apply only to the agency chairmen. None of the provisions bind the agency itself. Rather, they just purport to impact what the chair can do in running the agency – what positions he can direct the agency staff to take, expenditures he can oversee as chair and most interestingly, what positions in litigation such an agency might take. And the savings clause makes clear that these directives are to be read in light of existing law.

From a legal standpoint, the strictures of EO 14215, to the extent they are binding, are directed to the chair only. While the agency can only take actions of a vote of the members or delegated to the chair, the chair has scheduling power and presumably could not schedule votes on matters contrary to the Administration’s wishes. Would the influence presumed by EO 14215 lead a court to find that the agency is not truly independent? Such a finding is certainly possible. However, finding the type of decision that could be challenged as being a product of a lack of independence, and then offering proof that a specific decision should be vacated because it was tainted by political interference would be difficult. A plaintiff’s challenge to an agency action on these grounds would depend on the facts, circumstances and perhaps even the vote on the specific matter. And any challenge would need to overcome the presence of EO 14215’s savings clause and be a function of the specific actions of the members of the agency.

The Challenge to Humphrey’s Executor

Over the past nine months the Trump Administration has expressly “terminated” a number of independent agency board members, without citing any type of cause, including members of the Federal Trade Commission, the National Labor Relations Board and the Surface Transportation Board, among others. The express goal of these terminations is to trigger a re-appraisal in the Supreme Court of the 95-year-old precedent of Humphrey’s Executor v. United States (295 U.S. 602 (1935)). Humphrey’s Executor established that Congress could create independent agencies and prevent their leaders (commissioners) from being terminated at will by the president. The Supreme Court ruled that the president could only remove these officials for the specific cause-related reasons set out by Congress.

Throughout 2025, several of the terminated independent agency commissioners have filed legal challenges to their terminations. Generally, lower federal courts and the US Court of Appeals for the DC Circuit sided with the terminated commissioners, citing Humphrey’s Executor, and enjoined the administration from terminating the Commissioners and ordered them reinstated. The Administration filed emergency applications to the Supreme Court, which in two separate  6-3 votes, allowed the removal of the commissioners to stand³ pending hearing the merits of the full case in December of 2025.⁴

Conclusion

Taken together, EO 14215 and the pending decision in Trump v. Slaughter raise the question of whether the era of independent, multi-member regulatory agencies has come to an end. In one sense they will continue – the agencies’ legislative mandates will continue, and the Administration has nominated new members to fill new terms.

The practical answer is much clearer – that agency chairmen will run their agencies in a way that is consistent with the policies and priorities of the administration in general, and the president who appointed that chairman in particular. Agency chairmen are aware that this administration has used its appointment power to further its policy and political aims and understand that a president’s decision to designate an independent board member as chairman is based on the expectation that the appointed individual will support and implement the administration’s political and policy goals. Commissioners who act contrary to the administration’s wishes do so at their political peril. In this administration the political expectations on agency members are being made explicit.

So, the ultimate goal of the Trump Administration in implementing the unitary executive theory has likely already been achieved – agency chairmen that want to remain as chair will run their agencies in a way that is politically aligned with the president’s views and agency members will vote consistent with the Administration’s wishes or go against them at their peril.  Does that express alignment mean an independent regulatory agency is no longer legally independent? Only time will tell.

The views expressed above are those of the author and do not necessarily reflect the views of the Eno Center for Transportation. 

[1] See, e.g. 15 USC §56 (Federal Trade Commission); 15 USC §78u(d)(1) (Securities and Exchange Commission); 46 U.S.C. § 41301 (Federal Maritime Commission).

[2] At some regulatory agencies, such as the National Transportation Safety Board, the Chair is nominated and confirmed as such by the Senate.

[3] The cases were Trump v. Wilcox (May 2025) and Trump v. Slaughter, (September 2025)

[4] Trump v. Slaughter