Can the President Cancel an Agency?
On Tuesday, March 18, the Karsh Center for Law and Democracy hosted “Can the President Cancel an Agency?” with Professors Daniel Ortiz and John Harrison ’77 (B.A.). This was the second of three panels on Trump’s Executive Orders. Professor Micah Schwartzman ’05 hosted the event.
Professor Ortiz began by asking why a president would want to cancel an agency instead of controlling it for his own ends. For one thing, he said, the president might expect federal employees to resist new policies. Alternatively, the president might be thinking in the long term, abolishing an agency now so that the next president will not be able to use it, especially when the current president favors deregulation. Interestingly, Professor Ortiz suggested that the current Supreme Court may have made cancellation more attractive than control by overturning Chevron, giving the courts more power over agencies vis-à-vis the President.
Professor Ortiz next distinguished “hard” canceling, which is outright abolishing an agency, and “soft” canceling, which involves minimizing an agency or making it ineffective. He pointed out that agencies are governed by a complicated mix of constitutional, statutory, and administrative rules that will likely make hard canceling very difficult. Instead, President Trump can use various mechanisms to soft-cancel agencies. For example, he can fire personnel, transfer or demote employees to undesirable positions, or investigate them. He will also try to impound funds.
Professor Harrison began with a quotation from Henry IV (by way of Justice Scalia). In the play, Owen Glendower claims that he “can call spirits from the vasty deep.” Hotspur replies, “Why, so can I, or so can any man; but will they come when you do call for them?” Professor Harrison pointed out that although President Trump can sign a so-called executive order, it may or may not have any effect. Trump’s power depends primarily on the statutory authorization for the agency. Statutes often contribute discretion on the President or the agency. Frequently, agencies have discretion as to funding priorities and staffing levels. Personnel policy is further constrained by a dense web of statutory and administrative law. Thus, determining the President’s power to soft-cancel an agency requires a specific analysis of the relevant law.
There are a few pockets where presidential power is different. Executive agencies created by a previous president can be hard-canceled. The Consumer Financial Protection Bureau has a very unusual funding scheme—which is now set to $0. Statutory law also gives the president a lot of discretion in deciding which agencies should dispense foreign aid, which explains why Trump was able to target USAID earlier. Finally, Professor Harrison stated that judicial review of executive decisions in this area is often extremely limited.
The panelists then took questions. One student asked about the President’s power over independent agencies, which led them to discuss the Unitary Executive Theory. Current doctrine upholds statutory restrictions that stop the President from firing the heads of some independent agencies, but the Supreme Court has signaled that they want to give the President the power to do so. Both panelists agreed that, based on recent decisions and public statements, a majority of the Supreme Court would vote to give President Trump the power to fire heads of independent agencies. However, they also noted some nuances. For one thing, even if the President cannot currently fire an agency head, he still has a lot of power to make “someone’s life so difficult that you have soft-canceling.” Also, Professor Ortiz speculated that “some of the people who have been pushing the Unitary Executive Theory for all these years might have a little bit of buyer’s remorse.” If the Court falls out with President Trump, or if Trump’s policies seriously harm the economy, the Court may decline to expand the President’s powers. Specifically, both panelists thought the Court might carve out an exception for the Federal Reserve.
Another student asked about the U.S. Institute of Peace, a nonprofit organization funded by the federal government, which was targeted by President Trump. Professor Harrison said that the Court has in the past treated some nonprofits as agencies in all but name. Without knowing the specifics of the Institute of Peace, he thought that was likely the case here as well.
Finally, a student asked about Trump’s power to remove civil service protections from federal employees. The panelists said that given the complexity of the law in this area, it will depend heavily on the specifics of any proposal. However, the president does have significant discretion over who gets protection.
The Karsh Center will host its last panel, “Is DOGE Constitutional?,” on Tuesday, March 25. Professors Payvand Ahdout and Saikrishna Prakash will speak.
