Arguments

America Needs Independent Regulators

A future Democratic President will be tempted to use power like Trump. That would be a mistake.

By Todd Phillips

Tagged Donald TrumpGovernmentRegulation

In his second term, President Trump has rejected the long-held tradition of regulatory independence by firing or attempting to fire officials at agencies charged with setting monetary policy, ensuring the safety of America’s nuclear energy, and enforcing antitrust, labor, finance, and other laws. The President has also issued an executive order requiring those agencies to submit their regulations to the White House for review before they can be promulgated. These actions ensure that policy will be set and the law will be enforced—or not enforced—based on loyalty to the White House and its allies, undermining the social safety net and the laws enacted to protect consumers, workers, and the economy.

It has no doubt occurred to many liberals that future Democratic presidents could wield this newfound power to implement their own political agendas. But doing so would be a mistake.

Imagine a President whose finances are personally tied to firms operating in heavily regulated industries. Or simply look at the recent actions of the Federal Communications Commission, which has investigated the President’s foes and threatened their licenses. With the ability to remove regulators at will, the President may put his thumb on the regulatory scales to favor his firms (or those of his friends and donors) and to disfavor their competitors or his detractors. If the President’s firms require licenses to operate, he may order them granted. If they break laws, he can declare that the laws should go unenforced. The President could benefit hand-selected firms or industries and use the levers of power to punish those that oppose him. If a regulator refuses to follow orders, she could be removed from office and replaced by someone who will. Losing regulatory independence means that, to quote Vice President JD Vance on a separate issue, you “can’t just ignore the President’s desires,” pernicious as they may be.

This state of affairs is an existential threat to the laws that generations of legislators, union leaders, and civil society organizations fought to enact. If regulators do not enforce the law against the President’s firms and those under his protection, these enterprises need not comply with regulations intended to protect consumers, workers, and the economy. Competitors who must comply with the law would face a competitive disadvantage, creating a downward spiral as presidentially protected firms gain market share and a greater capacity to inflict harm on their customers, the economy, and the public. Decades of progress on health, safety, and consumer protections could be simply wiped away.

Without independent regulators, the possibility of rampant corruption threatens the United States’s high standard of living. Our economic growth and social safety net are buoyed by more than $5 trillion in foreign investments drawn by the promise of the rule of law, which requires regulators who can act without fear or favor. When countries wield the power of the state with an arbitrary hand, their citizens invest abroad in countries that operate under stable legal systems, which has historically benefited the United States. This foreign investment gives domestic firms the capital to hire and grow, as well as to pay the taxes that fund Medicare, Medicaid, the Supplemental Nutrition Assistance Program, and other public benefits. When the President upends that legal system by removing government officials who will enforce the law without bias, it threatens all of us.

Some have argued, including in the pages of this journal, that the next Democratic President should not revive the regulatory independence that President Trump has destroyed. Instead, they believe that this new presidentialism should be used to direct formerly independent agencies toward progressive ends. They argue that the independent regulators of yesterday failed to effectuate progressive values in a large number of areas and that it is unwise for one political party to unilaterally disarm in the face of opponents who are willing to undermine independence for the benefit of their agenda.

Although I am sympathetic to these views, they miss the mark. Democratic regulators did not fail to take progressive actions because they were independent; they failed to take progressive actions because they were appointed by moderate presidents. Compare, for example, the actions of two Clinton-era financial regulators. One, the Comptroller of the Currency, preempted state consumer protection laws, allowing national banks to engage in predatory practices. The other, the Commodity Futures Trading Commission (CFTC), moved to regulate the growing financial derivatives market. The Clinton Administration publicly supported deregulation of the sort pursued by the Comptroller and cut a deal with congressional Republicans to undermine the CFTC. What matters for enacting progressive policies is electing progressive presidents and having them appoint progressive regulators, not abolishing regulatory independence.

Similarly, independent regulators may effectuate progressive goals. A Democratic President can appoint progressive officials as agency leaders, provide input on policies, and encourage agencies to take progressive actions. Independent regulators can reject policy proposals by industry that would cut against the public interest and accept proposals by public interest groups. Independence does not mean serving the interests of regulated industries over those of the public. As the Supreme Court explained when it upheld agency independence 90 years ago, independence simply means that regulators “act with entire impartiality,” without fear or favor, enforcing “no policy except the policy of the law.”

It is true that we do not want future Democratic administrations to restore agency independence only to see it undone by their Republican successors. But that is because regulatory independence is a progressive value in itself. It is a rejection of the era of backroom dealmaking and governing on the basis of campaign donations and bribes. Like all good progressive values, it deserves to be enacted into law so that it applies across presidential administrations of all stripes. Of course, the Supreme Court has indicated that it sees removal protections as unconstitutional for all regulators except the Board of Governors of the Federal Reserve System, so readers of this journal must spend the next three years developing structural means of preserving regulatory independence across administrations that can be enacted by Congress and upheld by this conservative Court. I have proposed quorum requirements as one, which could be structured to allow multimember regulatory agencies to operate only when comprised of officials of two different political parties. But there are certainly other possibilities.

Regulatory independence will not, by itself, be sufficient to undo the damage of the current moment. We must elect public-minded presidents who appoint public-minded regulators, and Congress must reassert itself in our system of checks and balances. But it is a vital step.

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Todd Phillips is an assistant professor of legal studies at Georgia State University.

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