On February 18, President Trump issued an executive order purporting to assume control over independent administrative agencies, including those that hear and decide individual cases involving workers’ rights and protections, such as the National Labor Relations Board (NLRB). Independent agencies were carefully designed by Congress—decades ago—to ensure that they can act in accordance with the law, unaffected by political influence or presidential favoritism. Giving the White House such direct and unprecedented control over independent agency leaders’ decisionmaking—including the ability to override their legal judgments and defund their work on specific matters—destroys these agencies’ neutrality.
In terms of the workplace, this radical assertion of White House influence strongly suggests that critical worker rights and protections could go unenforced—or even that particular White House allies could effectively be treated as exempt from accountability for the laws that protect American workers.
The Executive Order Functionally Eliminates These Agencies’ Independence
The order, entitled “Ensuring Accountability for All Agencies,” purports to “improve the administration of the executive branch” and “increase regulatory officials’ accountability to the American people” by asserting unprecedented new presidential powers to control the operations and decisionmaking of agencies designed by Congress to be insulated from political influence. These new powers include:
- giving the president and the U.S. attorney general the ability to override the agency’s own interpretation of the law it administers;
- giving the director of the Office of Management and Budget (OMB) the authority to control expenditure of the agency’s funds, including defunding “particular activities, functions, projects or objects”;
- requiring independent agencies to submit any new regulations to OMB for substantive review;
- requiring all “agency heads” (including, it would seem, each individual member of bipartisan boards such as the NLRB, whether Republican or Democrat) to employ a “White House Liaison” as a senior staffer in their offices;
- requiring independent agency chairmen to “regularly consult with and coordinate policies and priorities with the directors of OMB, the White House Domestic Policy Council and the White House National Economic Council”; and
- giving the director of the OMB the authority to establish and evaluate the “performance standards and management objectives” for independent agency heads.
The scope of the order’s impact on the ability of independent agencies to make policies or regulations is clear on its face: instead of exercising independent, expert judgment (as Congress intended), these agencies would now make policy on behalf of the White House and serve their statutory missions only when expressly given White House permission. While the order purports to restore “sufficient accountability to the President,” it is more accurately viewed as a clear intrusion on the authority of Congress to determine that insulating such agencies from political control over their day-to-day decisionmaking serves the public welfare. Indeed, the full scope of the White House’s efforts to intrude on independent agencies’ autonomy is made clear by a second order, issued the next day, requiring all federal agencies—including independent agencies—to work with their “DOGE team leads” and OMB and identify for possible elimination all existing agency regulations that are not, in the view of these external actors, based on the “best reading” of the underlying law. Independent agencies have not historically been subject to such a highly politicized regulatory review process, because they have, up until now, been treated as actually independent.
Instead of exercising independent, expert judgment (as Congress intended), these agencies would now make policy on behalf of the White House and serve their statutory missions only when expressly given White House permission.
The Executive Order Will Especially Compromise Adjudicative Independent Agencies
The implications of such a radical takeover of independent agency autonomy are especially critical for the small group of independent agencies that do business primarily by adjudication—in other words, agencies that make law through the consideration of individual cases affecting specific parties, rather than through generally applicable rules or policies. The NLRB is one such agency, along with others such as the Federal Mine Safety and Health Review Commission or the Occupational Safety and Health Review Commission. Presidential control of the day-to-day decisionmaking of these agencies compromises the entire adjudicative process, denying the people involved in these cases the ability to get a fair and impartial consideration of their claims. For workers who rely on the NLRB and other independent worker protection agencies to protect critical workplace rights, this directly impacts the ability of individual workers to get justice without bias from outside political influences; hypothetically, the president could affect the outcome of a charge filed against a company owned by political ally to the president, or prevent a union from being certified or a worker being reinstated to their job at a company owned by a donor to the president. The possibilities for abuse are alarming to contemplate.
In simplest terms, the NLRB is an agency with two separate functions: prosecuting (through the general counsel) and adjudicating (through the five-member board) complaints alleging unfair labor practices, such as when an employer disciplines or fires workers who speak up about their working conditions, or when an employer refuses to bargain with the workers’ union. The general counsel also oversees elections where workers determine whether they want union representation, and the board decides disputes that arise out of the election process.
While members appointed to the NLRB are all politically accountable—they are nominated by the president and confirmed by the Senate—the NLRB (and other independent agencies) was clearly intended by Congress to serve as an impartial, expert administrator of the law, free from political influence. The NLRB and other independent agencies were never envisioned to be supervised by the White House, much less function as a tool of the president.
To be sure, the new executive order does not expressly give the White House authority to dictate, decide, or override the outcome of individual cases before independent agencies like the NLRB. However, the unprecedented level of control that the White House is now asserting over these agencies could certainly be used that way. It is not hard to imagine how dangerous abuses could arise. To use the NLRB as an example, such abuses could include:
- denying the NLRB general counsel the ability to use agency funds to prosecute particular types of complaints filed by workers, or even complaints against particular industries or parties;
- instructing the NLRB chairman to “coordinate policies and priorities” with the White House by prioritizing consideration of cases brought by employers against unions over cases that would give backpay to discharged workers or affirm the results of union elections;
- refusing to allow the agency to defend itself and its decisions in federal court if challenged by outside parties or industries that are friendly with the White House, or if the White House disagrees with the agency’s resolution of the case; and
- working through the newly appointed “White House Liaisons” in each board member’s office to influence which cases are prioritized or compromise the confidentiality of the deliberative process, especially for minority board members from the political party opposing the president’s.
This level of control is fundamentally inconsistent with the way multi-member boards and commissions like these are supposed to operate in our legal system. These agencies were designed by Congress to be independent for good reason. Their decisions are supposed to be dictated by expert judgment and neutrality, not the whims of political alliances or favoritism. The integrity of these bodies is essential to serve the vital goals that laws such as the National Labor Relations Act were trying to protect.
These agencies were designed by Congress to be independent for good reason. Their decisions are supposed to be dictated by expert judgment and neutrality, not the whims of political alliances or favoritism.
When workers don’t have any place to turn that will fairly and effectively protect their right to organize and improve working conditions, the resulting labor unrest hurts workers and their families, and our economy as a whole. Preserving true independence for agencies such as the NLRB should be of paramount concern to anyone who cares about the well-being of America’s workers.
What Happens Next?
The executive order seems vulnerable to challenge on multiple fronts. This unprecedented power grab would appear to be potentially inconsistent with individual affected agencies’ authorizing statutes, the Administrative Procedure Act, and even the Constitutional directive that the president “shall take Care that the Laws be faithfully executed.” Anyone who has a case before the NLRB or any of the affected independent agencies and is concerned about the neutrality of the adjudicative process they will face would presumably have standing to challenge the order in federal court, as would any of the presidentially-appointed, Senate-confirmed officials subject to these new restrictions (though any official choosing to raise such a challenge would—if recent practice is any indication—likely be immediately terminated, whatever statutory protection they may have). Thus it becomes the Constitutional responsibility of the adjudicators in the federal courts to exercise their own independence, rein in these unprecedented abuses of presidential power, and act to restore the important role of independent agencies in the executive branch.
Tags: nlrb, workers rights, donald trump
Trump Executive Order Could Prevent Independent Agencies from Protecting Workers’ Rights
On February 18, President Trump issued an executive order purporting to assume control over independent administrative agencies, including those that hear and decide individual cases involving workers’ rights and protections, such as the National Labor Relations Board (NLRB). Independent agencies were carefully designed by Congress—decades ago—to ensure that they can act in accordance with the law, unaffected by political influence or presidential favoritism. Giving the White House such direct and unprecedented control over independent agency leaders’ decisionmaking—including the ability to override their legal judgments and defund their work on specific matters—destroys these agencies’ neutrality.
In terms of the workplace, this radical assertion of White House influence strongly suggests that critical worker rights and protections could go unenforced—or even that particular White House allies could effectively be treated as exempt from accountability for the laws that protect American workers.
The Executive Order Functionally Eliminates These Agencies’ Independence
The order, entitled “Ensuring Accountability for All Agencies,” purports to “improve the administration of the executive branch” and “increase regulatory officials’ accountability to the American people” by asserting unprecedented new presidential powers to control the operations and decisionmaking of agencies designed by Congress to be insulated from political influence. These new powers include:
The scope of the order’s impact on the ability of independent agencies to make policies or regulations is clear on its face: instead of exercising independent, expert judgment (as Congress intended), these agencies would now make policy on behalf of the White House and serve their statutory missions only when expressly given White House permission. While the order purports to restore “sufficient accountability to the President,” it is more accurately viewed as a clear intrusion on the authority of Congress to determine that insulating such agencies from political control over their day-to-day decisionmaking serves the public welfare. Indeed, the full scope of the White House’s efforts to intrude on independent agencies’ autonomy is made clear by a second order, issued the next day, requiring all federal agencies—including independent agencies—to work with their “DOGE team leads” and OMB and identify for possible elimination all existing agency regulations that are not, in the view of these external actors, based on the “best reading” of the underlying law. Independent agencies have not historically been subject to such a highly politicized regulatory review process, because they have, up until now, been treated as actually independent.
The Executive Order Will Especially Compromise Adjudicative Independent Agencies
The implications of such a radical takeover of independent agency autonomy are especially critical for the small group of independent agencies that do business primarily by adjudication—in other words, agencies that make law through the consideration of individual cases affecting specific parties, rather than through generally applicable rules or policies. The NLRB is one such agency, along with others such as the Federal Mine Safety and Health Review Commission or the Occupational Safety and Health Review Commission. Presidential control of the day-to-day decisionmaking of these agencies compromises the entire adjudicative process, denying the people involved in these cases the ability to get a fair and impartial consideration of their claims. For workers who rely on the NLRB and other independent worker protection agencies to protect critical workplace rights, this directly impacts the ability of individual workers to get justice without bias from outside political influences; hypothetically, the president could affect the outcome of a charge filed against a company owned by political ally to the president, or prevent a union from being certified or a worker being reinstated to their job at a company owned by a donor to the president. The possibilities for abuse are alarming to contemplate.
In simplest terms, the NLRB is an agency with two separate functions: prosecuting (through the general counsel) and adjudicating (through the five-member board) complaints alleging unfair labor practices, such as when an employer disciplines or fires workers who speak up about their working conditions, or when an employer refuses to bargain with the workers’ union. The general counsel also oversees elections where workers determine whether they want union representation, and the board decides disputes that arise out of the election process.
While members appointed to the NLRB are all politically accountable—they are nominated by the president and confirmed by the Senate—the NLRB (and other independent agencies) was clearly intended by Congress to serve as an impartial, expert administrator of the law, free from political influence. The NLRB and other independent agencies were never envisioned to be supervised by the White House, much less function as a tool of the president.
To be sure, the new executive order does not expressly give the White House authority to dictate, decide, or override the outcome of individual cases before independent agencies like the NLRB. However, the unprecedented level of control that the White House is now asserting over these agencies could certainly be used that way. It is not hard to imagine how dangerous abuses could arise. To use the NLRB as an example, such abuses could include:
This level of control is fundamentally inconsistent with the way multi-member boards and commissions like these are supposed to operate in our legal system. These agencies were designed by Congress to be independent for good reason. Their decisions are supposed to be dictated by expert judgment and neutrality, not the whims of political alliances or favoritism. The integrity of these bodies is essential to serve the vital goals that laws such as the National Labor Relations Act were trying to protect.
When workers don’t have any place to turn that will fairly and effectively protect their right to organize and improve working conditions, the resulting labor unrest hurts workers and their families, and our economy as a whole. Preserving true independence for agencies such as the NLRB should be of paramount concern to anyone who cares about the well-being of America’s workers.
What Happens Next?
The executive order seems vulnerable to challenge on multiple fronts. This unprecedented power grab would appear to be potentially inconsistent with individual affected agencies’ authorizing statutes, the Administrative Procedure Act, and even the Constitutional directive that the president “shall take Care that the Laws be faithfully executed.” Anyone who has a case before the NLRB or any of the affected independent agencies and is concerned about the neutrality of the adjudicative process they will face would presumably have standing to challenge the order in federal court, as would any of the presidentially-appointed, Senate-confirmed officials subject to these new restrictions (though any official choosing to raise such a challenge would—if recent practice is any indication—likely be immediately terminated, whatever statutory protection they may have). Thus it becomes the Constitutional responsibility of the adjudicators in the federal courts to exercise their own independence, rein in these unprecedented abuses of presidential power, and act to restore the important role of independent agencies in the executive branch.
Tags: nlrb, workers rights, donald trump