FCC chair suggests agency isn't independent, word cut from mission statement
69 comments
·December 17, 2025CGMthrowaway
Animats
The constitutional language for appointments is:
He (the president) shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.
So the president can appoint various officials, but the Senate must, by majority vote, confirm the ones that Congress hasn't designated as not requiring confirmation.
On the removal side, there's this:
The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.
Note "all civil Officers of the United States". Any government employee can be impeached. A few judges have been impeached and convicted over the last 200 years.
That's all the Constitution says.
Cabinet members and some other high officials serve "at the pleasure of the President", and Congress has delegated authority for lower level civil servants to the executive branch and the Merit System Protection Board.
So the question for the various semi-independent boards and commissions is whether the president can remove them, or whether they need to be impeached to be removed. This is a real question where the members have a term of office set by law. Federal Trade Commission members have a 7-year term. Security and Exchange Commission members, 5 years. Federal Reserve commissioners, 14 years. Arguably, they should serve out their term unless impeached. The constitutional argument is that the executive branch has only enumerated powers, those listed in the Constitution. Since the constitution specifies both appointment and removal by impeachment, that covers the only ways such officers can enter office or be removed from it unless Congress provides otherwise.
bigstrat2003
> The constitutional argument is that the executive branch has only enumerated powers, those listed in the Constitution.
That is true of all branches of the government, not just the executive.
CGMthrowaway
You are making an argument for strict enumeration, in other words that officers can only be removed via impeachment because it is the only removal method explicitly listed in the Constitution. That argument was formally rejected by SCOTUS in 1926[1], and really only in force for lifetime appointment judges today.
golem14
I'm far from being versed in this, but when I read the wikipedia article, it's about whether CONGRESS can dismiss someone without approval of the president, not the other way around.
It also cites https://en.wikipedia.org/wiki/Parsons_v._United_States
Which DOES say something about whether the president has the power to dismiss, among other officials, district attorneys:
https://scholar.google.com/scholar_case?case=755666055204146...
rayiner
That’s a good analysis. But the simpler route is that there is no such thing as an “independent” agency. That’s a 20th century creation. The constitution doesn’t even talk about an “executive branch.” It vests the executive power in a single office—the President. (“The executive Power shall be vested in a President of the United States of America”).
Can congress create a law that provides for congressional aides to exercise power “independent” of Congress members? No. Can Congress create a law that provides for judicial law clerks to exercise power “independent” of Article III judges? No. It’s an extremely easy question. Myers v. United States got the right answer almost 100 years ago.
anigbrowl
Ironically enough, the administration is attempting to fire Lisa Cook from the Federal Reserve Board of Governors, despite the very clear existence of a 'for cause' clause, and has taken the matter to the Supreme court where it will be heard next month.
CGMthrowaway
Trump has attempted to fire Cook for cause, not outside of any for cause protections. The claim is she committed mortgage fraud.
Forgeties79
I just don’t know how someone could possibly think this is a good thing unless they are in the executive branch reaping the direct benefits
rayiner
It depends on whether you think elections are better than “independent civil servants.” The system the founders created was one where the executive branch would be subject to the whims of the people via regular elections of the President.
In the late 19th and early 20th century, folks like Woodrow Wilson came up with this idea of the administrative state run by independent expert civil servants: https://teachingamericanhistory.org/document/the-study-of-ad.... The concept arose from Wilson’s hatred of democracy and immigration:
> The bulk of mankind is rigidly unphilosophical, and nowadays the bulk of mankind votes. A truth must become not only plain but also commonplace before it will be seen by the people who go to their work very early in the morning; and not to act upon it must involve great and pinching inconveniences before these same people will make up their minds to act upon it.
> And where is this unphilosophical bulk of mankind more multifarious in its composition than in the United States? To know the public mind of this country, one must know the mind, not of Americans of the older stocks only, but also of Irishmen, of Germans, of Negroes. In order to get a footing for new doctrine, one must influence minds cast in every mold of race, minds inheriting every bias of environment, warped by the histories of a score of different nations, warmed or chilled, closed or expanded by almost every climate of the globe.
The idea of “independent agencies” staffed by neutral civil servants arises directly from this skepticism of democracy and voters.
dfxm12
Reading up on the history of the Unitary Executive Theory may provide some background: https://en.wikipedia.org/wiki/Unitary_executive_theory
In this case, Trump is easily bought and isn't very concerned with governing himself (compared to playing golf or designing ballrooms). With this in mind, even people outside the executive branch, or even the USA are benefiting.
stronglikedan
> Trump is easily bought
If the least "bought" president in history is "easily" bought, then we're doomed!
DFHippie
That's always the question with this unitary executive business. They believe this is the government defined by the Constitution, regardless of precedent. Do they believe it is a good system of government? Do they believe this is the government intended or rather the government allowed by legal loophole, vagueness, or contradiction? Because it seems like they think the president should rule like a monarch because they happen to control the presidency at the current moment, not because it is a wise and effective system of government.
ike2792
It's a fair question to ask "who are independent executive agency heads accountable to" in a constitutional context. It is true that the Executive Branch has grown far beyond what the Founding Fathers could have imagined, but the idea of a unitary executive is that the President is responsible and accountable for everything that happens in the Executive Branch. If the voters don't like what the Executive Branch is doing, they can replace the President in the next election. What happens if voters don't like what independent executive agencies are doing? There's no democratic recourse.
Think of a scenario where a President was elected with a large-ish majority and promised during the campaign to change broadband regulations to reduce broadband prices across the country. Unfortunately, the FCC commissioners were all appointed by the previous president and block this policy change that the voters clearly support. How does that square with democratic accountability?
rayiner
How can you cite “precedent” when Myers v. United States decided this issue in favor of the unitary executive back in 1926? The administrative state that exists today was only facilitated by the FDR Supreme Court overruling a bunch of precedents.
Go read the Federalist Papers. The founders thought very hard about who should exercise which powers and how they should be selected. They did not intend for 99% of the actual government operations to be run by “independent” executive officials that were insulated from elections. That’s something we made up in the 20th century in response to trendy ideas about “scientific government.”
CGMthrowaway
The concept of independent agencies (that is, those overseen by Congress rather than the president) was controversial long before, and for far longer, than it wasn't.
calvinmorrison
The concept that congress could create a body that is NOT executed by the executive is crazier.
estearum
It is executed by the executive. The question is the degree of power the executive has over the policies they're enacting. Not crazy at all to believe that the policy-making body of our government largely controls that.
This is very obviously the design of our government.
"[The President] shall take Care that the Laws be faithfully executed"
Animats
That's come up, too. The Copyright Office is a unit of the Library of Congress. Trump tried but failed to fire the head of the Copyright Office.[1]
U.S. Marshals used to belong to the judicial branch, and were hired by the district courts. In the 1960s, they were moved to the executive branch, under the Justice Department. This wasn't controversial at the time. The court system wasn't set up to train and manage the marshals. But the effect was that the courts lost their independent muscle.
[1] https://apnews.com/article/trump-supreme-court-copyright-off...
SubiculumCode
To execute is different than having the royal prerogative, or at least it did to the founders: https://jach.law.wisc.edu/exec-power-royal-prerogative-found...
dragonwriter
“Independent” agencies have always been a distinction within the executive branch, not a distinction from thr executive branch, so while arguably true on its face, your statement is also a strawman.
JumpCrisscross
> have always been a distinction within the executive branch
“Always” is doing heavy lifting here. Independent agencies were a paradigm shift under FDR. We’re presumably seeing a shift away from that paradigm.
CGMthrowaway
> “Independent” agencies have always been a distinction within the executive branch
The common use of the expression "fourth branch of government" to describe independent agencies belies your assertion here.
postflopclarity
why is that crazy? legislative supremacy is an extremely common pillar of many theories of democracy. the executive has only the powers enumerated in the Constitution and explicitly granted by Congress. if Congress wants to set up an agency independent of POTUS, that "should" (scare quotes because who knows what this activist SCOTUS will do) be well within its constitutional purview
curt15
The Constitution was, after all, written by people who had just fought a war to throw off an overreaching executive. No goal was more important to them than preventing another one.
bigstrat2003
The legislature also has only the powers enumerated in the Constitution. As "create independent agencies" is not one of those powers, it comes down to a matter of interpretation as to whether one of the powers granted to Congress implies the ability to create independent agencies. But once you enter the land of interpretation, it's, well... open to interpretation, and thus it's not unreasonable for someone to take issue with a certain interpretation.
SilverElfin
What do you mean? Why isn’t it okay to create agencies that have different models of management? Like by Congress or private third parties or whatever? They can do whatever legislation allows right?
CGMthrowaway
While Congress has broad authority to create and design federal agencies, the Constitution is widely considered to impose strict limits to ensure no branch "gives away" its core powers, vis a vis the Appointments Clause, due process clause and Article I vesting clause[1]
kjksf
To everyone asking: why is it crazy?
Because the constitution explicitly grants the president absolute executive power over executive branch (government) of which FCC is part of. If government is a company then president is CEO and can do anything he wants to do.
Of course people can argue about the meaning so ultimately the arbiter of what constitution mean is Supreme Court.
And recently there were several lawsuits in the vain "the president can't do THAT" and while federal judges said "indeed, he can't" and issued injunctions, they were pretty much overturned by higher court or Supreme Court, re-affirming that president does in fact has control of executive branch.
And if you want to game this: if this wasn't true, congress could completely defang the powers of the president by making every government agency (IRS, FBI, FTC etc.) "independent" and de facto giving the power to unelected beaurocrats away from elected president.
And why should you care about this?
Because every 4 years you can vote for a different president.
You can't vote for the head of FCC.
jakelazaroff
> You can't vote for the head of FCC.
FCC commissioners are appointed by the president (who is elected) and confirmed by senators (who are also elected). The chair is then chosen from those commissioners by the president (who, again, is elected).
Saying you can't vote for the head of the FCC is like saying that you can't vote for the Secretary of State. Sure, you don't cast a ballot for them directly, but you do wield influence by electing leaders to represent your interests.
estearum
> Because the constitution explicitly grants the president absolute executive power over executive branch
No it doesn't.
The President is obligated to faithfully execute the laws of the United States. It's literally in the very first sentence of the Constitution's definition of the President's power and responsibilities.
Article 2 Section 3
null
cyberax
So every 4 years we throw out everyone who disagrees with the El Presidente. But yeah, this can be fixed by making the El Presidente be there for life, right?
Independent agencies exist to make policy shifts more gradual. That's their entire purpose.
Suppose, the next election cycle AOC gets elected, then puts in her cronies who require all stations to air 8 hours of pro-socialism ads every day. And there is nobody at the FCC to say "no".
The only entity that can sue is the DOJ, and it's also controlled by the president.
president_zippy
The number of software engineers in this thread who think they are legal scholars is a sight to behold. It reminds me of all the bad legal advice on Stack Overflow, Quora, and Leddit.
trothamel
Some context:
https://thehill.com/regulation/court-battles/5636278-trump-s...
It appears to be an open question as to if independent agencies are allowed under the constitution. The most recent round of articles seem to be like that one in The Hill, which indicate the answer is likely to be 'no'.
This seems to be in response to that.
delichon
If Humphrey's Executor goes down, "independent" becomes effectively unconstitutional under the current SCOTUS. It's awkward to have an unconstitutional goal hard wired into an agency's mission, and could be used against it in court. It's a bit of a presumption that Trump v Slaughter will turn out this way, but given the tone of the oral arguments, not a lot.
nine_zeros
If anyone ever wondered how third world democracies become corrupt, you don't have to wonder any longer. Just observe the current USA.
The shift is based on the argument that because the Communications Act of 1934 does not contain explicit for-cause removal protections for commissioners (unlike the laws creating the FTC, NRLB, FERC or others, which do), they are legally removable at will by the president, placing the agency under executive control.
The FCC has often been called an independent agency. But this may be a mistaken assumption. The 1935 Supreme Court ruling in Humphrey’s Executor held that when Congress included for-cause language, the president could not fire commissioners for simple policy disagreements. The FCC charter does not have that.
Under this interpretation, the FCC is considered part of the executive branch and aligned with the president's policy objectives rather than operating as an autonomous body