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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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In Blow to Open Internet, Federal Appeals Strikes Down Biden FCC's Net Neutrality Rules
The ruling creates a "dangerous regulatory gap that leaves consumers vulnerable and gives broadband providers unchecked power over Americans’ internet access," said one advocate.
Jan 02, 2025
Citing last year's U.S. Supreme Court decision that stripped federal agencies of their regulatory powers, an all-Republican panel on the U.S. Court of Appeals for the 6th Circuit on Thursday ruled that the Federal Communications Commission lacks the authority to reinstate net neutrality rules.
The panel ruled that broadband is an "information service" instead of a "telecommunications service," which is more heavily regulated under the Communications Act, and said the FCC did not have the authority to prohibit telecommunications companies from blocking or throttling internet content and creating "fast lanes" for certain web companies that pay a fee.
Last April the FCC voted to reinstate net neutrality rules, which were first introduced under the Obama administration but were repealed by former Republican FCC Chair Ajit Pai, who was appointed by President-elect Donald Trump.
The ruling cited by the 6th Circuit panel was Loper Bright Enterprises v. Raimondo, which overturned the so-called Chevron doctrine last year. Under the decades-old legal precedent, judges have typically deferred to federal agencies' reasonable interpretation of a law if Congress has not specifically addressed an issue.
"Applying Loper Bright means we can end the FCC's vacillations" between imposing and repealing net neutrality rules, said the judges on Thursday.
The ruling serves as "a reminder that agencies are going to be neutered across any and all industries," said one observer.
John Bergmayer, legal director for the free expression and digital rights group Public Knowledge, said that by "rejecting the FCC's authority to classify broadband as a telecommunications service, the court has ignored decades of precedent and fundamentally misunderstood both the technical realities of how broadband works and Congress' clear intent in the Communications Act."
The ruling creates a "dangerous regulatory gap that leaves consumers vulnerable and gives broadband providers unchecked power over Americans’ internet access," added Bergmayer. The decision could harm the FCC's ability to protect against everything from broadband privacy violations to threats to universal service programs for low-income and rural households.
Matt Wood, vice president of policy and general counsel for another media justice group, Free Press, said the ruling was "just plainly wrong at every level of analysis."
"In April, the FCC issued an order that properly restored the agency's congressionally granted oversight authority to protect people from any [internet service provider] discrimination and manipulation. That commonsense FCC order tried to ensure that the companies providing America with the essential communications service of this century don't get to operate free from any real oversight," said Wood.
Companies and industry groups that sued over the regulations, including the Ohio Telecom Association, "baselessly claim that any regulation will hurt their bottom line," Wood added. "Treating broadband like a common-carrier service does nothing to dampen or dissuade private investment in this crucial infrastructure. And the question for any court interpreting the Communications Act must be what is in the public's best interest, not just one industry sector's financial interests."
The groups, along with FCC Chair Jessica Rosenworcel, called on Congress to take legislative action to protect internet users and small web businesses from discrimination.
"Consumers across the country have told us again and again that they want an internet that is fast, open, and fair. With this decision it is clear that Congress now needs to heed their call, take up the charge for net neutrality, and put open internet principles in federal law," Rosenworcel said.
Congress must "clarify the FCC's authority—and responsibility—to protect the Open Internet and broadband users," said Bergmayer.
Bergmayer also noted that the ruling leaves states' ability to enforce their own net neutrality laws in place, and said the group "will continue to look to states and local governments to help lead on broadband policy."
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'Unacceptable': Court Blocks Net Neutrality Rules During Legal Battle
"Today's ruling is a setback, but a temporary one," said one campaigner. "The nation's communications regulator must be able to oversee the nation’s communications infrastructure."
Aug 01, 2024
Net neutrality advocates on Thursday sharply condemned a U.S. appellate court decision blocking implementation of the Biden administration's broadband policy while a legal challenge launched by the telecommunications industry moves forward.
Federal Communications Commission Chair Jessica Rosenworcel joined with Commissioners Anna Gomez and Geoffrey Starks in April to reclassify broadband as a public service under Title II of the Communications Act—undoing damage done during the Trump administration.
Internet service providers (ISPs) are fighting to stop the FCC's order. After temporarily delaying the rules last month, the U.S. Court of Appeals for the 6th Circuit just granted a stay. Oral arguments aren't expected until October or November.
"The 6th Circuit's stay will leave Americans without critical net neutrality protections and leave the Federal Communications Commission without its rightful authority over broadband," warned U.S. Sens. Ed Markey (D-Mass.) and Ron Wyden (D-Ore.) in a joint statement Thursday.
"We need net neutrality to protect the free and open internet and ensure that internet gatekeepers cannot control what we see, who we talk with, and how we communicate online."
"That is unacceptable," added the senators, who have led the fight for reviving net neutrality rules in Congress. "We need net neutrality to protect the free and open internet and ensure that internet gatekeepers cannot control what we see, who we talk with, and how we communicate online."
Advocacy groups were similarly critical. John Bergmayer, legal director at Public Knowledge, said that "it is unfortunate that the court granted the ISPs' request for a stay of the FCC's net neutrality rules. These rules would bar broadband providers from throttling connection speeds, blocking websites, and discriminating in favor of preferred internet traffic."
"Millions of Americans have expressed support for these rules by submitting comments with the FCC urging the agency to enact these protections," he noted. "Consumers need net neutrality rules as well as the other consumer benefits provided by the FCC's recognition that broadband is a 'telecommunications' service, including online privacy, public safety and national security, and affordable, competitive broadband service."
"Despite this court's action, we remain confident that the FCC's rules—and classification of broadband as a telecommunication service under Title II of the Communications Act—will ultimately be upheld, just as they were before—or that Congress will step in to reinstate these popular and necessary protections," Bergmayer added.
Free Press vice president of policy and general counsel Matt Wood also characterized the stay as unfortunate but stressed that "we believe that the litigation to follow will dispel these unfounded phone-and cable-company arguments about Title II's supposed harms and about the commission's authority to classify broadband providers properly under the statute."
"Industry lobbyists and other net neutrality opponents have argued, loudly but cynically, that the Trump-era repeal somehow spurred broadband deployment and speed increases, claiming that the rules' presence impairs those upgrades. This is nonsense, as Free Press has shown time and time again by examining the companies' own financial statements and investor briefings," he highlighted. "Today's order unfortunately accepts the false premise that the FCC's rules prevent broadband providers from rolling out new products. ISPs make such claims only in court; they never make them to their investors."
"Today's ruling is a setback, but a temporary one. The nation's communications regulator must be able to oversee the nation’s communications infrastructure," Wood continued. "While we hit a procedural hurdle today, Free Press is determined to see the FCC's decision go into effect. The 6th Circuit will still need to evaluate the ISPs' and FCC's arguments in full when it reviews the case on the merits. We're confident that we will ultimately prevail in this case, even in the wake of this disappointing outcome and even in light of recent Supreme Court decisions aimed at weakening federal agencies' oversight."
Rosenworcel was also determined to defend the FCC's decision, declaring Thursday that "the American public wants an internet that is fast, open, and fair. Today's decision by the 6th Circuit is a setback but we will not give up the fight for net neutrality."
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