Independent U.S. Regulatory Agencies: Undermining the Chief Executive

On June 29, 2026, the U.S. Supreme Court ruled that the federal president has the authority to terminate the employment of heads of independent federal agencies at will, rather than only for cause. The latter requirement (i.e., due cause) would still hold for the Federal Reserve, which raises the question of whether a central bank should be distinguished from regulatory agencies. The value in buffering monetary policy from political pressure is why the Federal Reserve is not part of the executive, legislative, or judicial branches of the U.S. government, but is instead an independent central bank within that government. As a consequence, monetary policy does not require approval from either the U.S. president or the Congress. Hence, the “for cause” requirement for removing someone from the Fed’s board of governors cannot be disagreement with the person’s preferences or decisions regarding monetary policy. As for independent regulatory agencies in the executive branch, their independence undermines the unitary executive as well as the president’s role in implementing existing law.

As with virtually any institutional arrangement in government, drawbacks are paired with benefits. In the case of the Federal Reserve, the main drawback lies in the difficulty in coordinating fiscal and monetary policy because Congress and the White House decide fiscal policy while monetary policy is decided by the Federal Reserve, which is buffered from pressure from all three branches of the federal government. So a fiscal policy could be in place to stimulate the economy even though high interest rates slow down economic growth. In the 1970s, for example, the term “stagflation” was coined because high inflation existed along with economic stagnation. During that decade, fighting inflation by monetary policy would have run counter in its economic effects to stimulating the economy by fiscal policy. Typically, inflation and stagnation alternate rather than occur at the same time. Paul Volker, as chairman of the Federal Reserve in the early 1980s, used monetary policy to reduce inflation even though the high interest rates exacerbated economic stagflation and, without sufficient fiscal stimulation to counter the higher interest rates, quickly produced a recession in President Reagan’s first years in office. So there is value economically in coordinating monetary and fiscal policy, and buffering the Federal Reserve from pressure from Congress and the White House (as well as not allowing a Federal Reserve chairperson to dominate those two branches) comes with a price. An iconic line from a European in the film, The Godfather, Part III, is relevant: “All our ships must sail in the same direction.” Separating monetary and fiscal policy institutionally comes with a cost in that ships could be going in opposite directions, producing chaos.

The Federal Reserve is a central bank, and therefore it is not an independent regulatory agency in the executive branch. The very notion of an independent regulatory agency is problematic constitutionally because if such an agency is free of a president’s control and yet still within the executive branch, then separation of powers prohibits direct control by Congress or the judiciary. The Court “held that presidents have free rein to fire agency heads at will, despite federal laws that require a cause for such dismissals” and a 1935 Supreme Court case known as Humphrey’s Executor that held that presidents could not fire heads of federal agencies without cause.[1] That precedent, which the Court overruled, is problematic because assuming a regulatory head does nothing for cause, the person would be free to make regulatory policy at will even if the chief executive officer of the government, the president, disagrees. Because the federal presidency is an office elected by electors of the member-state held to the popular votes in the respective states whereas the head of a regulatory agency is appointed, regulatory agencies being independent of the president incurs a democracy deficit. In other words, the head of an independent agency has too much power given the amount of accountability that is available if termination of employment for cause is not an option due to good behavior.

Furthermore, carving out independent turfs within the executive branch denies the unitary nature of that branch that is implied by the president’s title as chief executive officer. Because the presidency is an elected office, heads of independent regulatory agencies within the executive branch who resist presidential pressure obstruct the “will of the people” from being implemented. Ideally, besides presiding as a neutral figure-head representing the United States of America, the presidency is tasked with implementing law, including defense. Hence it is Congress that has the constitutional power to declare war, for example, and the president is obliged to implement that declaration as the commander in chief. The role of implementing is hardly glamorous, and it has tended to be given insufficient time and energy by presidents who have been more interested in influencing the enactment of law, which is the task of the legislative branch, even though the veto is a negative power and thus designed to be a check on Congressional abuses of power rather than a mandate to legislate in a positive sense.

Ironically, the very existence of independent regulatory agencies with directors free from presidential pressure has freed up presidents from their implementing role, and thus enabled them to spend more time and energy on legislating new law rather than implementing existing law.  Unlike formulating new law, implementing existing law, including declarations of war, is consistent with the neutrality that a figurehead needs to be credible and thus to represent the United States as a whole. That such neutrality politically has been disregarded is evinced when American citizens state that a sitting president “is not my president.” The baleful warnings of expansive presidential power made by Arthur Schlesinger in his seminal 1973 book, The Imperial Presidency, would be less of a concern were presidents willing to constrain themselves to focus on being a figure-head uniquely credible enough to represent the United States as a whole rather than just one political party, and implement existing law by running the executive branch (including the defense department), rather than usurp Congress’s legislative prerogative as per the separation of powers. The Court’s 2026 decision allowing presidents to fire heads of previously independent regulatory agencies in the executive branch is a step in the direction of presidents attending more to functioning as the chief executive of the U.S. federal government when not called upon to preside.  

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1. Mark Sherman, “Supreme Court Says Fed’s Cook Can Keep Her Job for Now, But It Upholds Other Trump Firings,” APnews.com, June 29, 2026.

The Case for a Presiding President in Russia

On December 31, 2010, a Russian judge sentenced Mikhail Khodorkovsky, the Russian tycoon who had been imprisoned in 2003 after defying Vladimir Putin, to an additional six years in prison. According to The New York Times, "It was a politically tinged decision that undermined President Dmitri Medvodev."[1] Leonid Goman of the Right Cause Party in Russia agreed. "It was obviously a political, not a judicial, decision." He went on to say that in general terms, "corruption is endemic, government power is often abused and senior politicians are rarely, if ever, held accountable for misdeeds."[2]  Clearly, Prime Minister Putin was still very much in control in Russia.  His message was that wealthy businessmen should not interfere in Russian politics. What a contrast to American politics, especially after the U.S. Supreme Court's Citizens United case!  Khodorkovsky was at one time the richest person in Russia, having been one of the oligarchs who bought government assets at bargain prices after the fall of the USSR, but he financed opposition parties in a political system that was anything but democratic.

Analysis:

This case points to the importance of separating a judiciary from executive and legislative branches of government, as in the E.U. and U.S. The fragile nature of a judiciary's credibility can be of dangerous ground even when the branches are separated. But in Russia technically under President Medvodev in 2010, a court doing the bidding of a powerful prime minister (in name only) contributes to the demotion of the credibility of the country's judiciary. Ultimately, the president of a country is charged with presiding over its system of government with an eye towards protecting it as a going concern.  

For example, U.S. President Andrew Jackson in the early 1830's looked out for the viability of the country's federal system by pushing Congress back on its tariff that hurt South Carolina and pushing the latter to repeal its Acts by which federal law could be nullified. He also vetoed a bill that, if enacted, would have allowed Congress to appropriate money for what was really a state road in Missouri. The President's focus was on maintaining the balance between the federal level and that of the member-states that is so important to maintaining a viable federal system in the long term. 

In the case of Russia, the problem concerning the political use of the court was that neither the president nor prime minister were interested in safeguarding the judiciary's long-term viability, for they prostituted it for political expediency. I submit, moreover, that most governments have lacked a presiding president, by which I mean a president who is primarily fixated on maintaining the continued viability of the system of government, including its credibility. It is too easy for voters to elect partisans who are more focused on their respective ideological agendas than putting the system itself first. Similarly, it is too easy for dictators to use all branches of government to consolidate more power for themselves or their party rather than to protect the viability of the branches, including how they are related, rather than to be primarily oriented to presiding over the system as a whole. 

See related essay: "On the Eclipse of Russian Federalism: Implications for the E.U."

1. Clifford Levy, "Russia Extends Prison Sentence of Tycoon 6 Years,” The New York Times, December 31, 2010, p. A1.
2. Ibid. 

Morsi as Partisan in Constitution-Building: Lessons from Washington

Appealing for unity after the controversial ratification of a draft constitution in December 2012, President Morsi of Egypt pledged in a televised address to respect the one-third of the electorate that had voted against the proposed constitution. He claimed that “active patriotic opposition” should not annoy the president or the people in a democracy. I contend that the office of president should not be of the sort that would have partisan opposition, ideally at least. That is to say, presiding means safeguarding the process itself, as well as the good of the whole, rather than pushing a partisan agenda. That Morsi was on record in support of the partisan-drafted proposal undercut his role as presider in chief. Given the innate instability of a nascent democracy, the role for a presider “above the fray” was particularly valuable in Egypt at the time. Morsi fell short in this regard, and thus put the fragile democracy at risk.

President Morsi speaking behind the seal of Egypt, suggesting a "good of the whole" orientation.     source: csmonitor

In his address, Morsi said, “We don’t want to go back to the era of the one opinion and fabricated fake majorities.” Such an era is the extreme of a partisan president. The presiding president, in contrast, transcends opinions and even majorities, being oriented to the long-term interest of the republic itself. Literally, to preside means to “stand before,” as exemplified by George Washington’s officiating role at the constitutional convention in the United States in 1787. He resisted the urge to “trade on his stature” to advance one or another proposal until the last day, when he suggested that a U.S. House district of 40,000 rather than 30,000 would be insufficiently representative.  Had Morsi followed Washington’s example as the draft Egyptian constitution was being proposed and ratified, Egypt might have had a more credible person to hold up the fragile democracy so it would take root rather than succumb to partisan strife.

While pursuing a partisan path is undoubtedly tempting for a president, the costs are often ignored or hardly transparent. In Morsi’s case, his invitation for the opposition to join a dialogue was met by Husseain Abdel Ghani’s comment that the invitation was merely Morsi’s “dialogue with himself.” Only by standing above the proposed draft could the president have had enough credibility to effect a reconciliation. It was not enough for him to move to the political center after the ratification had been secured.

Instead of being invested in the draft, Morsi could have focused on “the big picture” in terms of how much consensus is necessary for a constitution to be something more than a partisan-approved document. Put another way, Morsi could have been oriented to the process by which the partisan-dominated draft could have been further modified such that at least part of “the opposition” would have been on board. Unlike a law, a constitution should have more than a majority faction’s stamp on it. Because most of a society should be behind a convention, it should not be dominated either in its formulation or ratification by the majority faction, or else follow-up work is warranted. Here is where a presiding president can come into the picture, being oriented to the society as a whole—to which a constitution rightly corresponds.

In short, Morsi may have approached the draft constitution as though it were a law rather than a constitution. Advancing the document that was dominated by his party in being formulated, he missed the opportunity to seek a wider massaging of the document into a final form. A similar mistake occurred in the American case as the convention there refused to consider proposed amendments from the countries’ ratifying conventions—some of which had sizable anti-federalist representation. Had this minority been assuaged, perhaps the resulting document might have had more safeguards against political consolidation at the expense of the governments of the member states.

Washington, himself a federalist, missed the opportunity to suggest on the last day of the convention that it would be in the long-term interest of the United States for the states to send new delegates to another convention for the purpose of considering amendments proposed by the ratifying conventions because a viable constitution should be something more than reflecting one perspective—as any one perspective contains blind spots. Moreover, incorporating a minority’s concerns could provide a check against the tyranny of the cultural artifacts of the age. A resulting document would be more likely to stand the test of time.

Similarly, by the way, an academic treatise can only be determined to be a classic after the scholar’s age has passed because only then—in another culture, in effect—can the artifacts of the author’s own be fully transparent. Like a good scholar being oriented at least in part to readers not yet born, a presiding president is oriented to a process most likely to render a constitution into a classic. Of course, it would be impossible for such a presider to ever know if he (or she) has been successful. The best such a president can do is to take pains that the process not succumb to expediency. Having such a perspective, such a president should be indifferent toward the various partisan agendas, even that of his (or her) own party. From the standpoint of such a presidential viewpoint, partisan agendas are merely the fleeting vanities of vanities.

Source:

David Kirkpartick, “Morsi Admits ‘Mistakes’ in Drafting Egypt’s Constitution,” The New York Times, December 27, 2012.

California’s Turnaround in 2013: Brown’s Budget Surpluses

By early 2013, California had turned the corner from deficits—$9 billion in 2011 and $25 billion in 2010—to anticipated surpluses—$785 million for the fiscal year ending June 2013 and $851 million in the year thereafter. The lack of balance between billions and millions suggests that Keynesianism may contain a fundamental imbalance in favor of consumption, at least in a democratic context. The prudent proposals by Jerry Brown, California’s head of state and chief executive, point to the ability of a republic to responsibly manage its fiscal business even within the overall imbalance.

Unlike a prime minister, Jerry Brown is not in the legislature, but in addition to being the chief executive he is also the head of state.

Specifically, Brown proposed raising total expenditures by 5 percent, which would not absorb all of the surpluses. Even though his plan would increase spending on education and healthcare, he “vowed to push back at legislators eager to raise spending quickly.” After years of cutbacks, it was undoubtedly very tempting to spend all of the surpluses while still being able to brag about a balanced budget. Yet giving into such temptation would entail considerable risk. “I am determined to avoid the fiscal mess that the last few governors had to deal with,” Brown told reporters as he introduced his budget proposal for the 2013-2014 fiscal year. That he was willing to hold even himself back from additional spending in education and healthcare is a testament to his sense of fiscal responsibility over even his own political ideology.
Put another way, Jerry Brown put his role as head of state above furthering a partisan agenda. That Democrats had won a supermajority in both chambers of the legislature makes his self-restraint all the more laudable. Indeed, Connie Conway, the Republican minority leader in the Assembly, said she supported Brown’s messages of fiscal restraint and support for education. Generally speaking, the voluntary self-restraint of the majority party for the good of the whole is supported by the minority party.
Brown’s attempt to set up a “rainy day” fund is prudent and thus in the interest of the republic. The minority party could hardly object. Even so, the proposal could have been improved by dedicating a sizable portion of the surpluses to reducing the government’s accumulated debt. Being debtless is itself a sort of “rainy day” fund in that the government would have greater leeway in raising new debt in a crisis. In Keynesian terms, taxes should even be raised as an economy improves—all that revenue going to paying off all the debt incurred in the last downturn. Whether stemming from an imbalance between booms and busts or in democracy itself, the tendency for government debt to accumulate even between cycles is a serious problem that not even Jerry Brown’s prudence fully answers. Even so, Brown could have done much worse in spending away the anticipated surpluses.

Source:

Jim Christie, “California Budget Surplus? Governor Introduces Plan That Eliminates Deficit,” Reuters, January 10, 2013.

Presiding over a Debt Precipice: President Obama of the U.S.

In the context of a rapidly approaching deadline on increasing the ceiling on U.S. Government debt, Barak Obama found himself rebuffing pressure from anti-tax “Tea Party” Republicans in the U.S. House while needing enough non-partisan credibility for his warning of an impending economic catastrophe to be believed by the citizenry and Congress. That is to say, Obama’s failure to stand back as the Democrats and Republicans in Congress duked it out on spending cuts and tax increases mitigated his stature or credibility as Presider in Chief. An editorial in the New York Times refers to this role of the president as "the utimate guardian of the constitutional order."[1] To preside is to be oriented to the viability of the whole. This means stepping in when the system itself is at risk. Partisan involvement compromises the ability to function in a failsafe capacity, as the "ultimate guardian."

Concretely, as the deadline on raising the debt-ceiling approached, someone with credibility was needed to stand up and get the attention of the partisans to say: We are running out of time. You need to come to an agreement. Taking and advancing one of the sides of the dispute detracted from Barak Obama’s ability to act as the party oriented to the deadline itself. It left the deadline itself vulnerable because the role designed to protect it was also interested in advancing a certain agreement (and killing another). I contend, therefore, that Obama’s priorities were at odds with that of how his office is designed to function in the system. The system itself is left vulnerable.

By analogy, a fire inspector is hired to sit in a crowded theatre to keep an eye on the building in case one of the special effects of the play causes a fire. Keeping an eye on the theatre itself, including backstage and the balcony, is less interesting than watching the plot unfold on stage. Taking the side of the protagonist, the inspector is diverted from noticing the smoke at the back of the balcony. The theatre, and its occupants, are at risk because the inspector does not reach the stage in time. To be sure, watching a play is more interesting, but the inspector role is designed to look out for the people as a whole—indeed, the theatre itself. Now, say the theatre is host to a debate, and that the inspector steps on stage to take part in it. Not only is he or she distracted from keeping an eye out for sabotage, people in the audience favoring the other side on the debate might not believe the inspector’s eventual announcement that they must leave the building.

In 2010, Barak Obama had remarked to the press after a partisan meeting with Congressional leaders, “Being bipartisan cannot mean that Democrats give up everything they believe in, find the handful of things that Republicans have been advocating for, and we do those things, and then we have bipartisanship.”[2] Even as his statement sounds fair, to make it from a partisan position from the presidential podium undercuts the presiding nature of the Presidency. How might Republicans have reacted to the President had he then announced an emergency and indicated what needed to be done to avert disaster? While his detractors would probably not doubt his veracity, in the face of an impending disaster every bit of credibility that the Presidency itself is capable of is necessary.

In the context of the debt-ceiling showdown in July 2011, the president’s pushback against the House Republicans compromised his warning that “we are now in the eleventh hour; we don’t have time for smoke and mirrors.”[3] Whereas the warning is oriented to the deadline, the pushback was partisan in nature. What would prevent Republicans from assuming that the “smoke and mirrors” comment was just as partisan (and thus could be safely relegated or dismissed)? The president would have been better advised to let the Democrats in the U.S. Senate fight the partisan battle with the Republicans in the House while he, the presider in chief, saved his political and reputational capital to act as an alarm clock, for there is no other than the president. In effect, wanting it both ways (pushing one of two sides and sounding the alarm) is like putting a pillow over the clock. In the case of the debt ceiling, America could not afford sleeping in. In allowing our presidents to be so partisan, We the People rack up tremendous systemic risk without realizing it. It is as though we have forgotten the old question, Who is watching the store? We simply assume the status quo, wherein the store's very existence is not in question.

1, Eric A. Posner and Adrian Vermeule, "Obama Should Raise the Debt Ceiling on His Own," New York Times (July 22, 2011). 
2. Helene Cooper and Carl Hulse, “Two Parties Join Together, Then Resume Divided Ways,” New York Times, February 9, 2010. 
3. Eric A. Posner and Adrian Vermeule, "Obama Should Raise the Debt Ceiling on His Own," New York Times (July 22, 2011).