‘You’re Fired!’

“You’re fired!” Donald Trump’s most famous catchphrase from his reality TV show, The Apprentice, has become central to the second Trump administration. While empowering Elon Musk’s Department of Government Efficiency (DOGE) to randomly fire civil servants and cancel government contracts, Trump has asserted his personal right as president to fire all government employees—including those in independent agencies such as the Federal Reserve, the Security Exchange Commission, and the National Labor Relations Board, whose founding statutes protect their leaders from being removed by presidents except for narrowly defined causes.

Trump has been attempting to fire independent agency commission members and agency heads and daring the federal courts to stop him based on a combination of executive fiat and novel legal theories. On Feb. 18, 2025, President Trump issued an executive order titled “Ensuring Accountability for All Agencies,” which declared that “previous administrations have allowed so-called ‘independent regulatory agencies’ to operate with minimal Presidential supervision.” President Trump would now reverse that practice.

How did this sudden discovery of the dangers of “independent regulatory agencies” happen? The claim that the president can fire everybody who works in the federal government was not a theme of the New Right before Trump’s reelection. Republican senators like J.D. Vance, Marco Rubio, and Josh Hawley, along with Florida Gov. Ron DeSantis, had sought to replace country-club Republicanism with pro-working-class politics willing to constructively use, not mindlessly dismantle, the federal government. “Deconstructing the administrative state” until recently was a fringe idea pushed by the likes of Trump’s Office of Management and Budget director, Russell Vought, who comes from the pre-Trump Reagan-Bush wing of the GOP.

Today, Vought is the mastermind of the second Trump administration’s effort to radically expand presidential power over independent agencies and boards as well as government contracts and federal spending. But in 2022, Vought, along with former Trump White House spokesperson Sean Spicer, unsuccessfully sued the Biden administration after Biden fired them from the U.S. Naval Academy’s Board of Visitors, claiming that the president had no power to remove them because they served staggered three-year terms fixed by statute.

Yet for now, though perhaps not for long, Vought and like-minded champions of unchecked, arbitrary executive power have the president’s ear. The result is a practical, historical, constitutional, and legal mess.

The crusade to “dismantle the administrative state” combines a theory of history with a theory of constitutional law. The theory of history claims that the “administrative state”—a catchall for all kinds of federal agencies—is an un-American betrayal of the vision of America’s Founders. The “unitary executive theory” holds that Article II of the federal constitution, which established the presidency, gives the president unchecked and arbitrary power over all government employees, or at least over all government workers who make policy in any way. Bad history supports bad constitutional law.

We need not waste time on the unitary executive theory, which was concocted in the Nixon and Reagan years, at a time when Republican presidents faced a seemingly permanent Democratic monopoly in Congress, and which has been spread ever since as an article of faith by the Federalist Society’s libertarian lawyers and law professors. Since the creation of the Interstate Commerce Commission (ICC) in 1887, successive Supreme Courts have ruled that government agencies can take the form either of executive departments, which answer to the president, or independent agencies, whose leaders are insulated from arbitrary presidential removal. The proponents of the unitary executive theory want us to believe that all judicial rulings about the legitimacy of independent agencies for the past 138 years have been wrong, but nobody noticed until recently.

Like the constitutional argument against independent agencies, the historical theory of right-wing advocates of an unchecked presidency is simply wrong. The crusade against the legitimacy of the so-called administrative state in the United States is associated with disciples of Leo Strauss and one of his followers, Harry Jaffa. Jaffa and his own protégés and allies made Claremont McKenna College in California the center of the school of “West Coast Straussians.” A typical spokesman for the Straussian school is Ronald J. Pestritto, a senior fellow of the Claremont Institute whose bachelor’s degree and PhD are from Claremont McKenna College and Claremont Graduate University.

In the potted version of American history peddled by what their critics call the “Claremonsters,” something called “the Founders’ constitution” governed America from the 1780s until the 1900s. Tragically, we are told, the noble vision that the bewigged and buckle-shoed Founders shared with Abraham Lincoln, a belated honorary Founder, was betrayed a century ago in the 1900s by sinister American intellectuals and politicians influenced by the statism of Imperial Germany and their allies, Progressive politicians like Theodore Roosevelt, Woodrow Wilson, and FDR. The Progressives and New Dealers robbed Congress of its powers and transferred them to unaccountable independent agencies, run by all-powerful bureaucrats.

According to the Straussian school, we must dismantle almost all government institutions created since 1900, or perhaps 1880, to restore the lost American order that last existed in the Gilded Age under presidential greats like Rutherford B. Hayes, James Garfield, and Chester A. Arthur. Conveniently, if inconsistently, these thinkers claim that if century-old government agencies can’t be abolished, at least they can be completely subordinated to whoever happens to be president at any given moment—even though an all-powerful presidency with legally unlimited discretion presiding over a centralized, bureaucratic government with 5 million civilian and military employees was not part of the Founding design.

The Straussians are right that many American intellectuals a century ago were trained in Wilhelmine Germany and looked to it for models of modern bureaucracies and social insurance programs. But historians of the Claremont School and others on the right routinely exaggerate German influence on American progressives. Writing in The American Mind, the erudite paleoconservative Paul Gottfried, no fan of big government or progressivism, shredded the theory that the United States was ruined a century ago by Teutonophile champions of “the administrative state”:

But I part ways with Marini on two points, which obviously have a deep meaning for the Claremont Institute. One, I think Marini’s assumptions about German philosophers being critical to linking the Progressivist ideology to the creation of an American administrative state are problematic; and two, I see no evidence that Progressivism and the administrative regime it encouraged incurred the disfavor of believers in natural rights, as interpreted by Abraham Lincoln. ... With due respect to Ronald J. Pestritto, who has made a cottage industry out of this study, I don’t find large gobs of Hegel in the political theory of Woodrow Wilson. Wilson’s The State (1889) rejects natural right theories about the origin of civil society, not because of Hegel, but because the author believes them to be unproven. Wilson was much more influenced by Burke and the nineteenth-century English liberal writer Walter Bagehot than he was by German thought. ... In any case, historically based theories of government abounded in every Western country in the nineteenth century. One does not have to assume a malign, peculiarly German influence to explain them.

There were indeed technocratic progressives a century ago who wanted the United States to have a European-style civil service and a centralized federal bureaucracy. However, their hopes were thwarted in the Progressive and New Deal eras by populist and conservative politicians in Congress who rejected schemes for technocratic administration and centralized presidential rule. The Democratic members of Congress under Wilson and FDR, rooted in rural America and big-city ethnic political machines, refused to create a centralized federal bureaucracy administered by a grand corps of Ivy League-educated high civil servants like those of Germany, France, or the United Kingdom. Instead, to keep federal bureaucrats weak and subordinate to the legislature, Congress relied on a homegrown American alternative to European-style centralized, line-and-staff bureaucracy: the independent regulatory agency.

Far from being an alien import from Imperial Germany, the independent regulatory commission was a homegrown, all-American institution. The first federal independent regulatory commission, the ICC, was established by Congress in 1887. It was preceded by state commissions created by state legislatures to regulate the railroads, in Rhode Island and New Hampshire (1844), Connecticut (1853), and New York (1855). In 1869, Massachusetts established its own railroad commission, headed by Charles Francis Adams Jr., the grandson of John Quincy Adams and later the head of the Union Pacific railroad. None of these, or later state railroad commissions like them, were influenced by Imperial Germany, which was not founded until 1871.

The chief purpose of the state railroad commissions was to provide expert advice to state legislatures. Long before the Progressive Era, state railroad commissions mingled legislative, judicial, and executive functions. The Supreme Court ruled that such commissions passed constitutional muster, in Munn v. Illinois (1877), during the presidency of Hayes. Once the federal ICC was established, the Supreme Court ratified its constitutionality as well.

Instead of being a champion of independent regulatory commissions, the arch-progressive champion of public administration Woodrow Wilson despised them, according to Samuel J. Konefsky, writing in The Yale Law Journal in 1952: “His scorn for regulatory commissions was as well defined as his contempt for Bryanism and for Theodore Roosevelt’s assault on big business.” The structure of the Federal Reserve, created in 1913 during Wilson’s presidency, reflected not Germanophile Progressivism or Wilsonian presidentialism, but the values of agrarian Democrats from the South and Midwest in Congress, who insisted that the new central bank be a confederation of regional banks, instead of being centralized in Washington or New York.

President Franklin D. Roosevelt was hostile to independent regulatory commissions and—like Trump—sought to merge them with regular executive agencies and subordinate them to the White House, as proposed by the Brownlow Committee report in 1937. The public administration scholar Alasdair Roberts observes, “In 1938, Congress rejected a package of administrative reforms that had been developed by a committee of academics headed by Louis J. Brownlow. The defeat was the worst that President Roosevelt would suffer in three terms as president.” As much as they agreed with FDR on other matters, his fellow Democrats in Congress had no intention of surrendering congressional influence over independent agencies or allowing the creation of an all-powerful presidency. Indeed, Democratic majorities in Congress repeatedly watered down or rejected proposals to centralize bureaucratic power in the White House made by subsequent commissions, including the one appointed by President Harry Truman in 1947 and headed by former President Herbert Hoover.

Along with the rejection by Congress of the Brownlow Committee report, FDR suffered another humiliating defeat in his attempt to expand presidential power with the Supreme Court’s holding in Humphrey’s Executor v. United States (1935). The statute of the Federal Trade Commission (FTC) stated that commissioners could be fired only for “inefficiency, neglect of duty, or malfeasance in office,” not for disagreeing with a president’s policy views. When President Roosevelt attempted to fire a conservative commissioner to replace him with a like-minded New Dealer, the Supreme Court ruled unanimously that he had no power to do so because, unlike executive departments, independent regulatory agencies are “creatures of Congress,” not part of the executive branch, and can be insulated by Congress from presidential control.

The Straussian historians, then, are wrong. The independent regulatory commission has its roots in state railroad commissions in the era of Lincoln and Reconstruction, not Bismarck’s Germany. Independent federal agencies were shaped in the Progressive and New Deal eras by Jacksonian Democrats from the South and Midwest, who rejected rather than ratified the hopes of Ivy League intellectuals for a European-style administrative state. Instead of belonging to a powerful civil service like those in Europe and Asia, most federal civil servants would be technical experts in specialized agencies, overseen by multimember commissions appointed by presidents but not removable at will. Congress could overrule agency rulings, agency rules could be appealed to federal courts, and presidents could replace members when fixed terms ended.

Designed by state and federal legislators suspicious of centralized executive power, independent regulatory agencies have long been despised by intellectuals on both the left and the right. On the left, intellectuals and reformers have long complained that agencies were corrupt and not hostile enough to the industries they regulated—as though their purpose was not to govern a healthy industry but to punish it. Liberal thinkers and libertarians united in denouncing “interest-group liberalism” and “iron triangles” whose vertices were congressional committees, independent agencies, and industry trade associations. The U.S. Department of Agriculture, for example, was too friendly to farmers at the expense of consumers, according to the new upper-middle-class, college-educated “consumer advocates” of late 20th-century liberalism.

In the 1960s and 1970s, Ralph Nader and his allies took the center-left critique of independent agencies to an extreme. The Naderites retained the faith of early 20th-century progressives that nonpartisan, altruistic experts could discern the public interest, without messy compromises. But the Naderites had lost their faith that such enlightened experts could be found in government. Instead, high-minded, expert, and impartial “public citizens” would be found in nonprofit organizations and among “public interest” lawyers, who would sue presumably corrupt independent agencies on behalf of the public good. To this end, Naderite liberals persuaded their allies in Congress to plant “private attorney general” statutes in environmental laws and other statutes, enabling NGOs to sue government agencies, even though they had no standing to sue, by traditional criteria.

Many of the legitimate objections of businesses and property owners to post-1960s liberalism are objections to the paralysis created by this NGO-based litigation strategy, not to independent agency rulings as such. In Taking Reform Seriously: Perspectives on Public Interest Liberalism, Michael McCann writes, “Liberal judicial interpretations of standing as well as of statutory rights to direct participation have enabled the reformers to initiate litigation challenging agency actions on the vague provisions of the National Environmental Policy Act (NEPA), Freedom of Information Act (FOIA), Occupational Safety and Health Administration (OSHA), Clean Air Act, Water Pollution Control Act, and other statutory programs to a degree never before paralleled.”

In the mythology of contemporary progressives, a dark age of pro-business reaction began with the Powell Memorandum, a confidential memo of 1971 sent to the U.S. Chamber of Commerce by Lewis F. Powell Jr., shortly before his confirmation as a Nixon appointee to the Supreme Court. If you read the Powell memo, the main complaint is the new Naderite litigation strategy, not old-fashioned independent agencies as such:

Current examples of the impotency of business, and of the near-contempt with which business’ views are held, are the stampedes by politicians to support almost any legislation related to ‘consumerism’ or to the ‘environment.’ … Labor unions, civil rights groups, and now the public interest law firms are extremely active in the judicial arena [emphasis added]. Their success, often at business’ expense, has not been inconsequential. … Perhaps the single most effective antagonist of American business is Ralph Nader, who — thanks largely to the media — has become a legend in his own time and an idol of millions of Americans.

In addition to encouraging public-interest lawsuits against independent regulatory commissions and other government agencies, Naderite progressivism also shaped the radical design of newer independent agencies. Traditional regulatory commissions had been industry-specific. The ICC regulated railroads and other infrastructure; the SEC regulated financial markets; and so on. But the new agencies like the Environmental Protection Agency (1970) and the Consumer Financial Protection Bureau (2011) were empowered to promote single goals like environmental protection or consumer protection across all of society. Their leadership structure also broke radically with American tradition. The new progressives rejected the traditional multimember commission in favor of single-director agencies whose directors served fixed terms.

The combination of unlimited authority and single directors made agencies like the EPA and CFPB much more controversial than traditional independent commissions. The authority of the Federal Maritime Commission is limited to shipping, but if an endangered bird lands on your property, you can find yourself suddenly under the jurisdiction of the EPA. If their single directors are ideologues, then agencies like the EPA can issue rulings that are more radical than the rules that tend to be approved by politically diverse multimember commissions. And if the EPA refuses to do what progressives want, there are environmentalist NGOS with lots of money for litigation ready to sue either the EPA or American businesses and citizens.

In recent years, the Supreme Court has justifiably pushed back against single-director independent agencies. In Sackett v. EPA (2023), the Court ruled that the EPA had exceeded the authority that Congress had delegated to it with its “Waters of the United States” rule, which essentially banned any development of any property with transient surface water or underground water. Earlier in 2020, in Seila Law LLC v. Consumer Financial Protection Bureau, the court ruled that the single-director structure of the CFPB was an unconstitutional infringement on the president’s executive power.

However, the court in Seila left intact the distinction in Humphrey’s Executor between purely executive agencies and independent regulatory commissions that are “creatures of Congress”:

While recognizing an exception for multimember bodies with ‘quasi-judicial’ or ‘quasi-legislative’ functions, Humphrey’s Executor reaffirmed the core holding of Myers that the President has ‘unrestrictable power … to remove purely executive officers.’ 295 U. S., at 632. The Court acknowledged that between purely executive officers on the one hand, and officers that closely resembled the FTC Commissioners on the other, there existed ‘a field of doubt’ that the Court left ‘for future consideration.’

After a lower court federal judge ruled that Trump had wrongly fired officers of two independent agencies, the National Labor Relations Board and the Merit Systems Protection Board, the Supreme Court stayed the order and allowed Trump to remove the officials pending resolution of the issue on appeal. At the same time, however, the Supreme Court majority went out of its way to make it clear that Trump cannot fire the members of the board of the Federal Reserve, except for statutorily defined causes.

The court’s attempt to distinguish the Federal Reserve system, described as a “uniquely structured, quasi-private entity,” from other independent regulatory agencies with similar commission structures is far-fetched. What is significant, though, is that the Republican majority on the Supreme Court was manifestly alarmed at the prospect that Trump or future presidents might purge the Fed and appoint loyalists who would lower interest rates to goose the economy right before midterm or presidential elections, thereby possibly triggering inflation and cratering bond markets.

If the conservative majority on the Supreme Court does eventually overrule Humphrey’s Executor and claim that all independent agencies, including the Federal Reserve, can be purged and restaffed at will by whatever president happens to be in power at any given movement, that would be a radical break with generations of judicial precedent and congressional and presidential practice. The legitimacy of what the Trump administration mocks as the “so-called” independent regulatory agency has been recognized by courts and presidents alike for 138 years since the creation of the ICC in 1887—that is, for a period equivalent to 58.5 percent of the time since the federal constitution went into effect on March 4, 1789. 

Some of the problems invoked by supporters of radical presidentialism are real. But the solution does not require eliminating all independent agencies or making each president an elected dictator ruling a centralized bureaucracy for four to eight years. Yes, the federal civil service is disproportionately progressive and Democratic—but the solution is to encourage young conservatives and young Republicans to pursue public service as a noble calling, instead of sneering at every American employed in the public sector as a parasite and a loser. Yes, independent agencies in their rulings can exceed their legislative delegations of authority to make rules; but the solution is for Congress to override them or for federal courts to trim them back, not for the president to fire all commission members at the beginning of his term and replace them with loyal ideologues, donors, lobbyists, or family members.

Ironically, Trump is in the tradition of progressive presidents like Wilson and FDR who disliked independent agencies and sought but failed to subordinate them to the White House. As a further irony, if the Trump administration’s grab for power over independent agencies succeeds, the next Democratic president will inherit vastly expanded and unchecked authority that can be used for purposes that Republicans and conservatives abhor. The American right would do well to reflect on a motto shared with me by Jeane Kirkpatrick, who learned it from the political scientist Harold Lasswell: “When designing a constitution, imagine that your worst enemies are in power.”