President Donald Trump’s executive order asserting direct control over independent agencies sent shock waves through legal circles Wednesday, raising new questions about the direction of the Federal Energy Regulatory Commission.
The executive order has drawn sharp criticism from former FERC officials and legal scholars, who warn it could disrupt critical regulatory oversight of power and natural gas markets.
“These regulatory agencies currently exercise authority without sufficient accountability to the President, and through him, to the American people,” Trump wrote. “For the Federal Government to be truly accountable to the American people, officials who wield vast executive power must be supervised and controlled by the people’s elected President.”
The order directs agencies to submit “significant regulatory actions” for White House review, and it would make the president and attorney general the final arbiter on questions of how to interpret laws.
For more than a century, Congress has established agencies that could shield regulators that oversee America’s biggest industries from the political interests of the White House. Instead, Trump wrote that the Constitution gives the president absolute authority over every executive office and agency, an assertion previous presidents have stopped short of making.
“The executive order is clothed in the garb of accountability but what it really is about, to paraphrase the late Justice [Antonin] Scalia in Morrison v. Olson, is power: the expansion of presidential power,” said Joe Kelliher, who chaired FERC under former President George W. Bush.
Trump’s order is sweeping, by all accounts. But his effort to assert more power by firing Democratic members of boards and commissions started shortly after his Jan. 20 inauguration. Among them was a member of the National Labor Relations Board, who has sued over her removal.
Laws creating most independent agencies, including the five-member FERC, state that the president can remove commissioners “only for inefficiency, neglect of duty, or malfeasance in office.” The Supreme Court has upheld that standard — most famously in Humphrey’s Executor v. United States.
“This is an assertion of complete control, and it’s paired with the White House’s disregard for the positions of agency board members and commissioners who do have for-cause protection from removal,” said Emily Hammond, a law professor at George Washington University and former deputy general counsel at the Department of Energy during the Biden administration.
Regulators with authority over power markets, securities and commodity exchanges, nuclear technology, and antitrust violations must — under the Trump order — align legal arguments with how the White House or Attorney General Pam Bondi view the law.
Legal scholars disagreed on what type of scenarios that could lead to: for example, an independent regulator choosing to ignore a court ruling that doesn’t align with a differing White House opinion.
“If this is a general statement saying that the courts are not the final arbiters of what the law means, then this is an extraordinary assertion of presidential power that’s clearly unconstitutional,” Hammond said.
David Vladeck, a Georgetown University law professor and former Federal Trade Commission official, doesn’t think it will come to that. “At some point, the Justice Department is not going to say to a court, ‘I’m not going to obey your order.’ They may appeal, but by and large, nobody wants to go to jail or be fined. Contempt is real,” he said.
Vladeck adds that independent agencies conduct case-specific actions — for example, daily FERC orders and permits. Those might not be considered significant enough to trigger White House review.
A commission stripped of power
Jon Wellinghoff, a former FERC chair under former President Barack Obama, felt differently. The president’s order strips power from the three Democratic and two Republican members of the commission.
“Their interpretation can overturn the opinion of the majority of FERC members who voted for that decision,” Wellinghoff said of the president and attorney general under Trump’s order.
Wellinghoff raised the possibility that FERC’s current Democratic majority could be rendered powerless until Commissioner Willie Phillips, a Democrat, steps down in June 2026 or is replaced. This raises the specter of regulatory paralysis at a time when the commission is wrestling with grid reliability, rising energy demand and higher costs.
Kelliher, the former FERC chair under Bush, echoed the concerns.
“The executive order essentially stands for the proposition that decision-making by ‘so-called independent agencies’ should be repoliticized, and there is no further need for expertise at these agencies,” Kelliher said in an email to POLITICO’s E&E News.
Kelliher also warned that subjecting FERC to White House review through the Office of Management and Budget could create a massive backlog of regulatory decisions, crippling the commission’s ability to function efficiently.
“FERC is a workhorse among independent commissions. To my knowledge, FERC issues more final decisions and final rules than any other independent agency — around 1,500 a year, usually three to five orders every business day,” Kelliher noted.
“How would OMB, an agency with no expertise in FERC’s jurisdiction, review that flood of draft decisions? That’s an easy question to answer: they can’t,” Kelliher said.
What does Trump want from FERC?
If history is any guide, Trump’s politics could make its way into regulatory decisions.
In 2018, then-Energy Secretary Rick Perry pressed FERC to require grid operators to compensate power plants that stored fuel on-site — a move widely seen as a financial bailout for coal. FERC then unanimously rejected the proposal, including opposition from Neil Chatterjee, a former FERC chair.
Under the new executive order, the commission might not have had a choice.
“If we had this executive order in place, the whole scenario would have played out much differently. The president’s interpretation would have prevailed rather than Chairman Chatterjee’s decision to reject the proposal,” Wellinghoff said.
The Heritage Foundation’s Project 2025 may offer further clues for how the administration may attempt to alter FERC.
Bernard McNamee, who Trump appointed to the commission during his first term, authored the radically conservative policy blueprint’s section on FERC, and several parts of Project 2025 have been adopted by the new White House.
Under Project 2025, commissioners would be barred somehow from favoring carbon-free power or justifying costs for “advancing vague ‘societal benefits’ such as climate change.” It called for an end to long-range grid planning, leaving it to states. And in directing FERC to focus exclusively on electric reliability, it would remake the way markets price electricity today, revaluing coal, gas and nuclear power so they compete with cheaper sources of wind and solar power.
For his part, Georgetown’s Vladeck thinks the executive order is targeted at agencies that are less technical and more political than FERC.
“[FERC] is a complicated agency. It has an incredibly important role in our economy,” Vladeck said. “The oil and gas industry cares about this for sure, and they think they’re getting a good deal these days at FERC. So I think they’ll just bypass it.”
Kelliher, Hammond and Vladeck all believe the order will face court challenges.
While the Supreme Court’s precedent has historically upheld the independence of regulatory agencies as recently as 2020, Hammond suggested that a Trump-aligned judiciary might be willing to reconsider that decision — though Vladeck considers that outcome unlikely.
“This is a constitutional clash between Congress’ power to design independent agencies and the president’s power to execute the law. And it’s a fight that will play out in the courts,” Hammond said.
While some former officials expect resistance from agency leadership, others believe that commissioners who refuse to comply could be removed or pressured to resign.
FERC Chair Mark Christie is expected to address presidential authority over FERC at Thursday’s open meeting.
