Executive Order Making “So-Called Independent Agencies” Directly Responsive to the President Is Another Nail in the Coffin of the “Headless Fourth Branch of Government”

On February 18, 2025, the Trump administration issued its most straightforward attack on the discretion of what it described as “so-called independent agencies.” Executive order 14215, titled “Ensuring Accountability for All Agencies,” requires that all agency rulemaking be preapproved by the president and that the legal positions offered by any executive department on behalf of the United States be consistent with the legal position held by the president or, by delegation, the attorney general.

The executive order is a striking foray in a long-running battle within the three branches of government over control of what is pejoratively known as the “headless fourth branch of government” — the collection of regulatory agencies that devise and execute federal policy but are “independent” from the president in the sense, generally, that the president may not remove such agencies’ leadership at will. Since at least 1935, when the Supreme Court in Humphrey’s Executor v. United States upheld a provision of the Federal Trade Commission Act mandating that a commissioner can be removed only “for cause,” the question of whether officials can constitutionally wield executive power without direct accountability to the president has been the source of occasional, but vociferous, controversy.

For decades, the scorecard of those battles was lopsided in favor of agency independence, with supporters asserting that vesting agencies with some independent discretion did not unduly hinder the president’s Article II authority to “take Care that the Laws be faithfully executed,” and provided benefits that fully restrained agency “expertise” could not. On the other side, partisans argued that the same Article II vested all “executive Power … in a President” — a single individual and not the executive branch writ large or the heads of any department within it. While no one questions that the president must utilize other people to carry out his or her will, those on this side of the divide claim that no executive branch actor has discretion to vary that will.

But in recent years, supporters of the latter view, known in academic legal circles as the “unitary executive theory,” have earned critical victories in the Supreme Court. Ironically, those later victories trace directly to a 7–1 loss by unitary executive supporters in Morrison v. Olson (1988), likely owing to the author of the solitary dissent, Justice Scalia, his dissent’s power and clarity, and his subsequent influence on a generation of scholars, lawyers, and judges. In Morrison, the rest of the court held that an independent counsel, neither appointed by nor directly removable by the president, could constitutionally wield prosecutorial power. But in more recent cases rejecting a lack of presidential control over the Public Company Accounting Oversight Board and the director of the Consumer Financial Protection Bureau, the court has followed the logic of Justice Scalia’s Morrison dissent without expressly overruling that case.

The executive order itself does not specifically assert that any restriction on the president’s power to remove the head(s) of any executive agency is unconstitutional and will no longer be respected. But the order otherwise adapts the unitary executive theory:

The Constitution vests all executive power in the President and charges him with faithfully executing the laws. … However, previous administrations have allowed so-called “independent regulatory agencies” to operate with minimal Presidential supervision.  … For the Federal Government to be truly accountable to the American people, officials who wield vast executive power must be supervised and controlled by the people’s elected President.

President Trump’s actions have embraced the same view. He “fired” a Democratic member of the National Labor Relations Board, though the law restricts removal of such members to neglect of duty or malfeasance in office. He also has announced his intention to fold the U.S. Postal Service, an independent establishment within the executive branch, into the Commerce Department. Challenges to these actions, or similar actions, will almost certainly make it to the Supreme Court, which will decide whether cases like Humprey’s Executor and Morrison survive.

As for this executive order in particular, the veto power it assigns the president over independent agency rulemaking, and over all legal positions offered in the name of the United States, is novel and untested. Congress has historically set the rulemaking requirements for agencies, either through the Administrative Procedure Act or in specific statutes, presenting a potential separation of powers clash. As for legal positions, it is not unusual for the DOJ to represent the agencies in litigation, and the solicitor general invariably represents all agencies before the Supreme Court, so for major legal issues the executive order is unlikely to make much difference. The executive order will be material in lower courts where the DOJ and the agency have irreconcilable differences, but that is also likely to be rare. It bears emphasis, in addition, that agencies’ legal interpretations of statutes no longer bind federal courts since Chevron deference was overturned last year, so the federal government should in all cases be incentivized to put forward the best interpretation of the particular provision, regardless of its author. That said, the executive order, or at least its principles, have already spilled over into discrete areas of related litigation, including in a major constitutional challenge to the insulation of the SEC’s administrative law judges and in a decision to drop a long-running action against Coinbase.