A good survey of how “independent agencies,” AKA the Deep State, came to be and the constitutional questions in general:
Elections Have to Matter: "Independent" Agencies Are Grossly Unconstitutional
If Presidents can't control the Executive Branch, elections don't really matter. The Administrative State exists to perpetuate unelected Democrat control, no matter who wins or loses. It has to end.
ROD D. MARTIN
FEB 24, 2025
Trump's war on the “deep state” - New Statesman
by Rod D. Martin
February 24, 2025
Ninety years ago, Franklin Roosevelt’s New Deal created a constitutional obscenity: agencies of government that violated separation of powers and that were not accountable to the elected President.
You might find it odd that as dynamic a President as FDR would want this, but oh dear reader, you are missing the point. The agencies were staffed almost entirely by Democrats, who were happy to do Roosevelt’s bidding. It’s after Roosevelt, when Democrats lost elections to Eisenhower, Nixon, Reagan, both Bushes and Trump that the brilliance of FDR’s plan kicked in. Because a permanent bureaucracy permanently staffed by Democrats will perpetuate Democrat rule no matter who wins a mere election.
The New Deal was, in short, a stealth, slow-motion coup. We’re still living under the new regime it created, keeping the forms but not the substance of the old Republic.
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To achieve these ends, Roosevelt’s Democrats had to do two things.
First, the new agencies had to violate separation of powers, creating hosts of siloed subject-matter dictatorships. The EPA makes laws (and no, Congress may not delegate its lawmaking powers). It also administers those laws and prosecutes violations. But it prosecutes in front of its own “Administrative Law Judges”, who report to the same agency that made, administered, and prosecuted the laws “violated”. Under the Supreme Court’s landmark Chevron case (overturned last summer), you didn’t even have a right to appeal to a real Article 3 court; and if somehow you got there, the Senate-confirmed judge was required to defer to the agency’s interpretation of, well, pretty much everything.
Did I mention this was and is obscene?
Chevron Attacked the Very Idea of America
Chevron Attacked the Very Idea of America
ROD D. MARTIN
·
JULY 4, 2024
Read full story
But second, Democrats had to make all these agencies “independent”: not accountable, and certainly not fireable, by the elected President. The arrogance that’s bred has metastasized to absurd extremes. This weekend, the Executive Office of the President sent out an all-staff email requiring every Federal employee to submit a short list of their accomplishments for the week. State Department Under Secretary for Management Tibor Nagy directed the Department’s employees to “resist”:
Seriously? Who the heck elected Tibor Nagy?
And that’s exactly the point. An “independent” agency, staffed almost entirely with unfireable unionized Democrats, is completely impervious to elections and beyond the power of voters to demand change. That’s a feature, not a bug: it’s the deliberate design. And it goes far beyond “resisting” performance reviews.
It’s also completely unconstitutional. And I don’t just mean that it violates Article 2, Section 1, which states in part that “The executive power shall be vested in a President of the United States”. I mean that the Founders’ reasoning was that a free people should be able to peacefully overthrow its government every four years.
But the regime FDR created has ruled us for most of a century, without the slightest concern for who won an election or who didn’t. Does nothing ever seem to change in Washington, no matter who’s “in power”? This is why. The Democrats (and their RINO allies) are permanently in power.
After having faced this Deep State’s full onslaught in his first term, and having just spent four years thinking about it along with the smartest conservatives around, Donald Trump is waging a direct assault on this bloated, unconstitutional regime. He’s using his constitutional powers to dismantle that regime and restore the system the Founders created. In the process, he’s forcing the courts — and the American public — to confront the reality of this structural corruption head-on.
Restoring the Constitution: Nondelegation Doctrine
Trump’s administration has ordered agencies to scrutinize every rule, regulation, and policy that exceeds Congressional authority, violates the Constitution, or undermines national interests. The goal? To declare these unlawful edicts null and void. This isn’t just a deregulatory push — it’s a frontal legal challenge to the Administrative State itself.
Ultimately, this involves nondelegation doctrine, the historic legal view that Congress may not delegate its lawmaking powers to anyone else. The Supreme Court abandoned nondelegation doctrine in the 1930s, and it was considered a dead letter until very recently. But the Fifth Circuit upheld it in its Jarkessy v. SEC ruling, and while the Supreme Court declined last summer to address nondelegation directly, it upheld Jarkessy as a whole. Expect more soon.
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Trump’s move also brings into question Congress’s unconstitutional restriction of the President’s executive authority, as upheld in New Deal-era judicial precedents like Humphrey’s Executor v. United States (1935). Humphrey’s Executor upheld Congress’s restrictions on the President’s ability to remove independent agency heads. The Supreme Court’s 2020 Seila Law v. CFPB and 2021 Collins v. Yellen rulings chipped away at this by declaring Congress’s “for cause” removal restrictions on agency heads unconstitutional. But obviously, for “all executive power to be vested in the President”, the President must have power to fire any government employee for any reason.
In the meantime, President Trump isn’t waiting for the courts, understanding perfectly well what Democrat pundits have long denied: that all three branches have equal power and duty to enforce the Constitution.
Consider his executive order requiring independent agencies to submit all proposed regulations to the White House for review. Agencies like the Securities and Exchange Commission (SEC), the Federal Communications Commission (FCC), and the Federal Trade Commission (FTC) have long functioned as quasi-legislative bodies with executive power, yet without accountability to the President and thus to the voters.
Trump’s move strips away the fiction of their independence and forces them back under presidential authority. The resulting lawsuits will likely set the stage for the Supreme Court to reexamine the constitutionality of these agencies’ — and countless others’ — very existence.
The President’s order also exposes the myth that these so-called independent agencies were ever truly “nonpartisan”. When Barack Obama pushed for net neutrality, his FCC chair Tom Wheeler dutifully complied. When Joe Biden nudged the FTC to consider banning non-compete agreements, it jumped to attention. These agencies have always been political instruments for exactly one party. They only “resist” Republicans, which is another way of saying that they exist to resist elections.
The Impoundment Challenge
Trump’s next battle is likely to be over presidential impoundment — the ability to decline to spend Congress’s full appropriations. Though he has so far merely paused Biden-era spending, he has signaled that he may challenge the constitutionality of laws restricting this power. The Impoundment Control Act of 1974 — an effort by Democrats to thwart a weakend Richard Nixon — was designed to neuter the executive branch’s ability to resist congressional overspending.
A successful challenge to the Impoundment Control Act could fundamentally alter the balance of power in Washington and dramatically reduce the national debt. Congress has long relied on its ability to dictate spending through massive omnibus bills and earmarks, tying the hands of presidents who might otherwise choose to rein in unnecessary expenditures. By reviving impoundment authority, Trump could restore an essential tool for fiscal discipline and executive discretion.
Elon Musk’s “deletion” of fraudulent spending and DEI budgets is sure to provoke the legal challenges needed to put the Impoundment Control Act on the ash heap of history. In this as in so many other areas, Trump is forcing Democrats to defend the indefensible.
Constitutional Reckoning
But it all comes back accountability: can voters make meaningful changes, and do elections matter? Bureaucrats who dictate economic and social policy should not be shielded from the elected executive. Congress still holds the power of the purse, oversight authority, and the ability to confirm nominees. Trump’s consolidation of executive power will help force Congress to actually legislate, instead of ducking its own accountability by delegating vast authority to unelected agencies. The Supreme Court could see to that once-and-for-all, by re-establishing nondelegation doctrine.
Ultimately, Trump’s “constitutional cleanup” (as Kim Strassel put it last week) is forcing long-dormant questions back into the national conversation. Can Congress create agencies that exercise executive power but are free from executive oversight? Can the Administrative State continue to operate as an unchecked fourth branch of government? Can the courts continue to ignore the fundamental separation of powers violations that define modern governance?
If so, you don’t live in a Republic. Trump’s counterrevolution is about ending that unconstitutional regime, and restoring both the Constitution and the vision of the Founders.
If he succeeds, the result will be a leaner, more accountable government, one that operates within the confines of the Constitution and responds to the will of the voters at every election. If he loses, it will be because the Democrats’ entrenched bureaucracy, Enemedia, academic indoctrination camps, and judicial allies have once again suppressed the plain text of the Constitution.
When asked what kind of government the Founding Fathers had created at the Constitutional Convention, Benjamin Franklin replied, “A republic, ma’am, if you can keep it.” America has not kept it for a century. It’s long past time to restore what’s been lost.
https://www.rodmartin.org/p/elections-have-to-matter-independent
