Mergers, Choking Hazards, Energy Prices—Does the Roberts Court Really Want Trump in Charge of All That?
In his second term, President Donald Trump demands a loyal bureaucracy that will defend his political well-being. No one better represents this reimagining of the work of government experts than Brendan Carr, the chairman of the Federal Communications Commission. Created by Congress in 1934 to oversee radio licensing and telecommunications, Carr has turned the FCC into a political weapon to silence media voices deemed unfriendly to the administration. It’s Exhibit A of what can happen when an independent agency is hijacked by partisan apparatchiks. Little wonder Trump has praised him as “outstanding,” a “patriot,” and “a very tough guy.”
Carr’s record is frighteningly impressive. Verizon and T-Mobile both ditched diversity, equity, and inclusion practices in exchange for merger approvals from his FCC. Paramount, parent-company of CBS, created an ombudsman at the network to ensure a “diversity of viewpoints” to win Carr’s approval for its merger with Skydance, in effect letting Carr sway news content. Carr also successfully leaned on Paramount to pay Trump off in a suit over a 60 Minutes episode Trump didn’t like. Stephen Colbert called that a “big fat bribe,” after which CBS canceled his Late Show. Then, after all this capitulation, Carr approved the merger. Perhaps most infamously, after ABC late night host Jimmy Kimmel made a joke that Trump didn’t like, Carr threatened that parent company Disney would face the FCC’s retribution if it didn’t fire Kimmel. “We can do this the easy way or the hard way,” Carr warned. It’s hard to imagine a more blatant abuse of government power: Punishing private individuals for their speech. Carr, who just a few years ago tweeted that censoring “late-night comedians…would represent a serious threat to our freedoms,” began a review of ABC broadcast licenses the day after Trump called on Disney to fire Kimmel. After months of bullying, Disney has been pushed to defend its affiliates.
And yet, in a case the Supreme Court is expected to rule on in the coming weeks, the Republican-appointed majority is likely to decide, in effect, more of this, please.
The FCC has traditionally been considered an independent agency. Independent agencies are typically run by a bipartisan board of commissioners who serve fixed-year terms and can only be removed by the president for cause—a setup designed by Congress to insulate them from White House political pressure. Carr is a case in point of the risk. When Trump made him chair, he called him “a warrior for free speech.” What he got was an enemy of a free press—but a warrior for Trump.
Despite this history, the Roberts Court has signaled that it is ready to declare at least some independent agencies unconstitutional. During Trump’s first few months in office, the court’s GOP-appointed majority, against the dissents of their colleagues tapped by Democrats, used their emergency docket to wave through the firings of Democratic commissioners on the National Labor Relations Board, the Federal Trade Commission, the Merit Systems Protection Board, and the Consumer Product Safety Commission. These decisions flew in the face of a seminal 1935 opinion, Humphrey’s Executor v. United States, in which a unanimous Supreme Court had ruled that the Constitution permitted creating independent agencies whose commissioners can only be fired for cause. The court heard oral arguments over Trump’s firing of FTC commissioner Rebecca Slaughter in December, and the GOP appointees appear ready to jettison this 90-year-old precedent upon which much of the modern regulatory state was built.
Trump’s second term has highlighted why compromising independence is harmful.
Independent agencies serve critical functions. Several, including the FTC, the Federal Reserve Board, the Federal Deposit Insurance Corporation (FDIC), the Commodity Futures Trading Commission (CFTC), and the Securities and Exchange Commission (SEC) hold significant sway over the economy. The Fed, in particular, sets interest rates, can print infinite money, loan funds to anyone on any terms, and restrict access to the banking system. It’s obvious that opening the Fed to presidential control by allowing him to fire commissioners without good reason is a dangerous proposition. In fact, the possibility is so threatening to the stability of the economy that the Supreme Court seems intent on keeping the Fed independent, despite its apparent openness to ditching independence at most or all other agencies.
Trump’s second term has highlighted both why compromising independence is harmful—and how current independence is often less than Congress initially hoped. For example, the CFTC, where the president has left four........
