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Trump's Bogus 'Unitary Executive' Theory and the Dismantling of Democracy
We are a nation of laws, and we cannot be ruled by executive fiat.
Feb 20, 2025
President Donald Trump on Tuesday signed an executive order that purports to place independent regulatory agencies, such as the Federal Communications Commission and the Federal Trade Commission, under his direct control. Based on the so-called “unitary executive” theory, which claims that any congressional limits on presidential control of every lever of government power are unconstitutional, this action poses a grave threat to the rule of law and the separation of powers—cornerstones of our constitutional system.
This executive order states that the president is charged with ‘faithfully executing the laws.’ This is true. However, the laws of our nation include the existence of independent regulatory agencies, the power of Congress to appropriate funds and direct how they are spent, and protection for certain government employees and officers from arbitrary dismissal.
Executive orders are not the law—they are statements of policy, and memos from the president about how the Executive Branch conducts its internal affairs. By attempting to use executive orders to override actual laws—the kinds that are passed by Congress, not issued on a whim from the Resolute Desk—the Trump administration is effectively asserting that it stands above the law. Indeed, that it is the law. But the role of the executive branch is not to decide what the law is, or to pick and choose which ones it likes, but to carry out and enforce the law, as written. Donald Trump is a high-ranking government employee—not a king. If there are laws he does not like, he can work with Congress to change them.
Donald Trump is a high-ranking government employee—not a king.
A nebulous and broad understanding of the phrase ‘executive power’ cannot prevail over duly enacted statutes passed by Congress and signed into law by presidents of both parties, over the course of decades. The U.S. Constitution did not change its meaning when President Trump took office. That this ‘unitary executive’ theory has made its way from the fringes of academia to the halls of power, and that it has even been accepted by some credulous judges, does not mean that it is right. Many legal observers have pointed out the shoddy scholarship and selective history that underpins it. We are a nation of laws, and we cannot be ruled by executive fiat.
In the order, the Trump administration purports to seize for itself the power Congress delegated to independent regulatory agencies, and as written, declares the White House’s interpretation of the law as ‘authoritative,’ with no mention of the courts. Of course, the president is not, and never has been, the final arbiter of what is lawful. Lawyers working for the government owe their allegiance to the American people, not to President Donald J. Trump. The many government lawyers who have already resigned rather than follow illegal or unethical directives from Trump's appointed political operatives are an inspiration, despite how frightening a hollowed-out Department of Justice might seem.
As for independent regulatory agencies, in addition to being the law of the land, they are often good policy. While I have sometimes disagreed with decisions taken by the FCC or FTC, under both Republican and Democratic control, I understand the importance of expert agencies that are free from day-to-day political interference. The FCC’s control over broadcast licenses, and its unenviable role of coordinating spectrum use between different industries and other government agencies, among other things, means it should be free to try to come to the best answer – not the one with the loudest political support. This applies to enforcement activities as well. Under the Biden administration, for instance, the FTC frequently investigated politically powerful companies, to the ire of many prominent Democrats and Democratic donors.
While I have sometimes disagreed with decisions taken by the FCC or FTC, under both Republican and Democratic control, I understand the importance of expert agencies that are free from day-to-day political interference.
President Trump, like other presidents have done, is free to express his views as to what the agencies should prioritize, and to nominate like-minded commissioners as vacancies arise. But, as directed by Congress, and reflected in commissioners' protection from being fired due to policy or political differences with the president, such agencies must make the final call on policy decisions.
The notion that independent agencies are ‘unaccountable’ is, on its face, absurd. The president nominates all agency commissioners, including ones of the opposite party, and names the Chair from among them. Agencies regularly answer to Congress, which controls their budget, and enacts the statutes that spell out the limited scope of their authority. Independent agencies cannot issue regulations without following the strict guidelines of the Administrative Procedure Act, and their rules and enforcement actions are regularly challenged in the courts, and occasionally reversed by Congress.
The wisdom of having independent agencies and tenure protections for certain government officials has been confirmed in recent weeks by the disastrous and irresponsible actions of the lawless Trump administration. One president should not be able to nullify statutes passed into law by past presidents and past Congresses with the stroke of a sharpie. Congress must re-assert its central constitutional role. Further, one hopes that federal judges and Supreme Court justices who, in the past, have lent their support to an imperial vision of the presidency, can see where this is going and act to limit the ability of the president to subvert our democracy and constitutional order.
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FCC Probe Into NPR, PBS Denounced as 'Attack on the Freedom of the Press'
"The FCC chair is clearly undertaking an effort to bully and intimidate independent journalism, which is a hallmark of authoritarian regimes where democracy is under siege," said one critic.
Jan 31, 2025
U.S. press freedom advocates this week forcefully condemned Republican Federal Communications Commission Chair Brendan Carr's investigation into National Public Radio and Public Broadcasting Service that could lead to stripping them of government funding.
"If they weren't ringing already, alarm bells should be going off loudly," said Tim Richardson, program director for journalism and disinformation at PEN America, in a Thursday statement. "By using its investigatory powers, the FCC chair is clearly undertaking an effort to bully and intimidate independent journalism, which is a hallmark of authoritarian regimes where democracy is under siege."
"The Trump administration is clearly embracing such tactics and putting independent media at risk by undermining accountability of elected leaders and risking a less informed public," Richardson added. "We call on the FCC to dispense with such politically motivated investigations."
Jenna Leventoff, senior policy counsel at the ACLU, was similarly critical, saying that "the commission should not bring frivolous investigations into media outlets simply because they do not like their coverage. Investigations like this can chill coverage and threaten the independence of the press, making it harder to hold the government accountable and keep us all informed."
I told @nytimes.com that Carr's claim that NPR and PBS broke sponsorship disclosure rules is an obvious pretext to attack their funding and independence. Carr was appointed to do Trump's censorial bidding. All his moves should be viewed through that lens.This “investigation” is a sham and meant to terrorize NPR and PBS. They have *rigorous* oversight on vetting the “this program brought to you by” statements and literally pages of documentation about it that they give to filmmakers like me. Support your local stations, they’re going to need it.
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— Ariel Waldman (@arielwaldman.com) January 30, 2025 at 2:39 PM
Free Press co-CEO Craig Aaron declared that "his seat as FCC chairman is barely warm, but Brendan Carr is already abusing his power and harassing public broadcasters with a sham investigation designed to scare journalists into silence. This is all part of Carr's far-right, Project 2025-inspired agenda."
"This bogus investigation is an attack on the freedom of the press and a bungling attempt to bash public broadcasters and further weaken their resolve to question the extremism, corruption, and cruelty of the Trump administration," Aaron warned. "This unjustified investigation isn't based on any genuine concern about whether there's too much advertising on public media. It's a blatant attempt to undermine independent, rigorous reporting on the Trump administration."
"Carr may not like public media—and that's no surprise given that he isn't a fan of journalism that holds public officials and billionaires accountable. In this, as in so many other areas under his purview, Chairman Carr is far out of step with the American public and their needs," he continued. "Communities all across the country rely on their local public radio and TV stations to provide trustworthy news reporting and a diversity of opinions. In every survey, the American public indicates it wants more support for public and community media, not less."
Aaron added that "in a healthy democracy, we would be investing enough in our public-media system that it wouldn't need to seek any corporate underwriting. Unfortunately, Carr's cronies in Congress and the Big Media barons they serve have instead for decades tried to zero out funding for public media. They have repeatedly failed because millions of viewers and listeners opposed them."
Carr—whom President Donald Trump first appointed to the FCC in 2017 and recently elevated to chair after he contributed to the Heritage Foundation-led Project 2025—announced the probe in a Wednesday letter to NPR president and CEO Katherine Maher and PBS president and CEO Paula Kerger.
"I am concerned that NPR and PBS broadcasts could be violating federal law by airing commercials," Carr wrote. "I have asked the FCC's Enforcement Bureau, with assistance from the FCC's Media Bureau, to initiate an investigation into the underwriting announcements and related policies of NPR, PBS, and their broadcast member stations."
The chair added:
I will be providing a copy of this letter to relevant members of Congress because I believe this FCC investigation may prove relevant to an ongoing legislative debate. In particular, Congress is actively considering whether to stop requiring taxpayers to subsidize NPR and PBS programming. For my own part, I do not see a reason why Congress should continue sending taxpayer dollars to NPR and PBS given the changes in the media marketplace since the passage of the Public Broadcasting Act of 1967.
To the extent that these taxpayer dollars are being used to support a for-profit endeavor or an entity that is airing commercial advertisements, then that would further undermine any case for continuing to fund NPR and PBS with taxpayer dollars.
Some federal lawmakers have already responded on social media. Sen. Ed Markey (D-Mass.) said that "the letter from Chairman Carr announcing a new FCC investigation into NPR and PBS member stations is baseless. He cites no evidence at all. Instead, this investigation is a dangerous attack on public media and local journalism."
Rep. Doris Matsui (D-Calif.) said that "public television and radio are essential for their local communities. The FCC must not be weaponized to intimidate and silence broadcast media. We should be supporting, not undermining, their contributions to journalism and the marketplace of ideas."
I told @nytimes.com that Carr's claim that NPR and PBS broke sponsorship disclosure rules is an obvious pretext to attack their funding and independence. Carr was appointed to do Trump's censorial bidding. All his moves should be viewed through that lens. www.nytimes.com/2025/01/30/b...
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— Seth Stern (@seth-stern.bsky.social) January 30, 2025 at 5:27 PM
The two Democratic members of the FCC have also responded critically to Carr's move. Commissioner Anna Gomez said that "this appears to be yet another administration effort to weaponize the power of the FCC. The FCC has no business intimidating and silencing broadcast media."
Commissioner Geoffrey Starks said that "public television and radio stations play a significant role in our media ecosystem.
Any attempt to intimidate these local media outlets is a threat to the free flow of information and the marketplace of ideas. The announcement of this investigation gives me serious concern."
Maher said in statement that "NPR programming and underwriting messaging complies with federal regulations, including the FCC guidelines on underwriting messages for noncommercial educational broadcasters, and member stations are expected to be in compliance as well."
"We are confident any review of our programming and underwriting practices will confirm NPR's adherence to these rules," she added. "We have worked for decades with the FCC in support of noncommercial educational broadcasters who provide essential information, educational programming, and emergency alerts to local communities across the United States."
In a statement to NPR media correspondent David Folkenflik, who reported on the probe, Kerger said that "PBS is proud of the noncommercial educational programming we provide to all Americans through our member stations... We work diligently to comply with the FCC's underwriting regulations and welcome the opportunity to demonstrate that to the commission."
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How Big Companies and the Courts Killed Net Neutrality
The powerful telecom industry did what they always do when the FCC does anything good or important on behalf of consumer: They sued to overturn the rules.
Jan 03, 2025
Happy New Year to everyone but the U.S. Court of Appeals for the 6th Circuit.
On Thursday, this federal court in Cincinnati threw out the Federal Communication Commission’s Net Neutrality rules, rejecting the agency’s authority to protect broadband consumers and handing phone and cable companies a major victory just weeks before the Trump administration returns to power.
The ruling against the FCC by three Republican judges isn’t shocking, but their reasoning is shoddy, a mish-mash of tired industry claims paired with a willful misrepresentation of how the internet actually works.
As Matt Wood, an experienced telecommunications attorney and my colleague at Free Press, explains: “Beyond being a disappointing outcome, the 6th Circuit’s opinion is just plainly wrong at every level of analysis. The decision missed the point on everything from its granular textual analysis and understanding of the broader statutory context, to the court’s view of the legislative and agency history, all the way to its conception of Congress’s overarching policy concerns.”
Our job now is to channel the growing outrage over this appalling decision into the long-term changes we need to keep the internet safe, reliable, accessible, affordable and free from unlawful discrimination.
Under the leadership of Chairwoman Jessica Rosenworcel, the FCC moved in April 2024 to restore Net Neutrality and the essential consumer protections that rest under Title II of the Communications Act, which had been gutted under the first Trump administration. This was an all-too-rare example in Washington of a government agency doing what it’s supposed to do: Listening to the public and taking their side against the powerful companies that for far too long have captured and called the shots in D.C.
And the phone and cable industry did what they always do when the FCC does anything good or important: They sued to overturn the rules.
This time, however, the lawyers for the biggest phone and cable companies had two things working in their favor. First, they got lucky: They won the forum-shopping lottery and got their case moved outside of Washington, D.C., where previous rounds of the Net Neutrality fight had been decided.
Second, the Supreme Court handed down a ruling in June in the Loper Bright Enterprises vs. Raimondo case that overturned the so-called Chevron doctrine that gave deference to expert agencies in complex matters like environmental and telecommunications regulations.
Unfortunately, the lawyers representing massive companies like AT&T, Comcast and Verizon found an eager audience in Cincinnati for their debunked arguments.
Despite extensive legal and economic analysis provided by Free Press and our allies in the case and at oral arguments in October, the court ruled against the FCC and deemed internet access to be an “information service” largely free from FCC oversight.
In a post-Chevron world where courts no longer have to defer to expert agencies, we’ve replaced years of evidence and argument with revelations like this from Judge Griffin: “The existence of a fact or thought in one’s mind is not ‘information’ like 0s and 1s used by computers.”
In the short term, this decision will let the incoming Trump FCC abdicate its responsibility to protect internet users so it can focus on its new priority of threatening TV broadcasters and social-media sites to carry more pro-Trump views.
I’ll spare you the rest. This court’s warped decision scraps the common-sense rules the FCC restored in April. The result is that throughout most of the country, the most essential communications service of this century will be operating without any real government oversight, with no one to step in when companies rip you off or slow down your service.
This ruling is far out of step with the views of the American public, who overwhelmingly support real Net Neutrality and despise the cable companies. They’re tired of paying too much, and they hate being spied on when they surf (or talk, thanks Siri). Now they’ll have even less recourse to deal with unscrupulous and abusive business practices.
Incoming FCC Chair Brendan Carr and his old boss Ajit Pai, who’s part of the Trump transition team, are crowing everywhere about the decision and cheering this strike against “regulatory overreach.” Of course, Carr and his ilk have never been interested in protecting the public interest, only private profits.
In the short term, this decision will let the incoming Trump FCC abdicate its responsibility to protect internet users so it can focus on its new priority of threatening TV broadcasters and social-media sites to carry more pro-Trump views. The hypocrisy of crushing light-touch regulations while aggressively pursuing government censorship is something to behold.
In the weeks ahead, the FCC, as well as Free Press and the other parties who intervened in the case, will consider our legal options and decide whether to appeal the case to the Supreme Court. In Congress, we’ll start laying the groundwork for a future bill that restores Net Neutrality and FCC authority. Meanwhile, we’ll look to the states to hold the line, with laws like California’s strong Net Neutrality regulations thankfully still on the books.
Our job now is to channel the growing outrage over this appalling decision into the long-term changes we need to keep the internet safe, reliable, accessible, affordable and free from unlawful discrimination.
It may have gotten harder, but the fight for the free and open internet is far from over.
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