FCC chair suggests agency isn't independent, word cut from mission statement

https://www.axios.com/2025/12/17/brendan-carr-fcc-independent-senate-testimony-website

by jmsflknr • 7 months ago

151 158 7 months ago

delichon2• 7 months ago

If Humphrey's Executor goes down, "independent" becomes effectively unconstitutional under the current SCOTUS. It's awkward to have an unconstitutional goal hard wired into an agency's mission, and could be used against it in court. It's a bit of a presumption that Trump v Slaughter will turn out this way, but given the tone of the oral arguments, not a lot.

neom• 7 months ago

The question: https://www.youtube.com/watch?v=mnOMyPbR7QY

CGMthrowaway16• 7 months ago

The shift is based on the argument that because the Communications Act of 1934 does not contain explicit for-cause removal protections for commissioners (unlike the laws creating the FTC, NRLB, FERC or others, which do), they are legally removable at will by the president, placing the agency under executive control.

The FCC has often been called an independent agency. But this may be a mistaken assumption. The 1935 Supreme Court ruling in Humphrey’s Executor held that when Congress included for-cause language, the president could not fire commissioners for simple policy disagreements. The FCC charter does not have that.

Under this interpretation, the FCC is considered part of the executive branch and aligned with the president's policy objectives rather than operating as an autonomous body

Forgeties795• 7 months ago

I just don’t know how someone could possibly think this is a good thing unless they are in the executive branch reaping the direct benefits

DFHippie• 7 months ago

That's always the question with this unitary executive business. They believe this is the government defined by the Constitution, regardless of precedent. Do they believe it is a good system of government? Do they believe this is the government intended or rather the government allowed by legal loophole, vagueness, or contradiction? Because it seems like they think the president should rule like a monarch because they happen to control the presidency at the current moment, not because it is a wise and effective system of government.

dfxm12• 7 months ago

Reading up on the history of the Unitary Executive Theory may provide some background: https://en.wikipedia.org/wiki/Unitary_executive_theory

In this case, Trump is easily bought and isn't very concerned with governing himself (compared to playing golf or designing ballrooms). With this in mind, even people outside the executive branch, or even the USA are benefiting.

rayiner21• 7 months ago

It depends on whether you think elections are better than “independent civil servants.” The system the founders created was one where the executive branch would be subject to the whims of the people via regular elections of the President.

In the late 19th and early 20th century, folks like Woodrow Wilson came up with this idea of the administrative state run by independent expert civil servants: https://teachingamericanhistory.org/document/the-study-of-ad.... The concept arose from Wilson’s hatred of democracy and immigration:

The bulk of mankind is rigidly unphilosophical, and nowadays the bulk of mankind votes. A truth must become not only plain but also commonplace before it will be seen by the people who go to their work very early in the morning; and not to act upon it must involve great and pinching inconveniences before these same people will make up their minds to act upon it.
And where is this unphilosophical bulk of mankind more multifarious in its composition than in the United States? To know the public mind of this country, one must know the mind, not of Americans of the older stocks only, but also of Irishmen, of Germans, of Negroes. In order to get a footing for new doctrine, one must influence minds cast in every mold of race, minds inheriting every bias of environment, warped by the histories of a score of different nations, warmed or chilled, closed or expanded by almost every climate of the globe.

The idea of “independent agencies” staffed by neutral civil servants arises directly from this skepticism of democracy and voters.

calvinmorrison• 7 months ago

The concept that congress could create a body that is NOT executed by the executive is crazier.

SilverElfin• 7 months ago

What do you mean? Why isn’t it okay to create agencies that have different models of management? Like by Congress or private third parties or whatever? They can do whatever legislation allows right?

estearum8• 7 months ago

It is executed by the executive. The question is the degree of power the executive has over the policies they're enacting. Not crazy at all to believe that the policy-making body of our government largely controls that.

This is very obviously the design of our government.

"[The President] shall take Care that the Laws be faithfully executed"

postflopclarity• 7 months ago

why is that crazy? legislative supremacy is an extremely common pillar of many theories of democracy. the executive has only the powers enumerated in the Constitution and explicitly granted by Congress. if Congress wants to set up an agency independent of POTUS, that "should" (scare quotes because who knows what this activist SCOTUS will do) be well within its constitutional purview

dragonwriter2• 7 months ago

“Independent” agencies have always been a distinction within the executive branch, not a distinction from thr executive branch, so while arguably true on its face, your statement is also a strawman.

Animats3• 7 months ago

That's come up, too. The Copyright Office is a unit of the Library of Congress. Trump tried but failed to fire the head of the Copyright Office.[1]

U.S. Marshals used to belong to the judicial branch, and were hired by the district courts. In the 1960s, they were moved to the executive branch, under the Justice Department. This wasn't controversial at the time. The court system wasn't set up to train and manage the marshals. But the effect was that the courts lost their independent muscle.

[1] https://apnews.com/article/trump-supreme-court-copyright-off...

kjksf• 7 months ago

To everyone asking: why is it crazy?

Because the constitution explicitly grants the president absolute executive power over executive branch (government) of which FCC is part of. If government is a company then president is CEO and can do anything he wants to do.

Of course people can argue about the meaning so ultimately the arbiter of what constitution mean is Supreme Court.

And recently there were several lawsuits in the vain "the president can't do THAT" and while federal judges said "indeed, he can't" and issued injunctions, they were pretty much overturned by higher court or Supreme Court, re-affirming that president does in fact has control of executive branch.

And if you want to game this: if this wasn't true, congress could completely defang the powers of the president by making every government agency (IRS, FBI, FTC etc.) "independent" and de facto giving the power to unelected beaurocrats away from elected president.

And why should you care about this?

Because every 4 years you can vote for a different president.

You can't vote for the head of FCC.

SubiculumCode• 7 months ago

To execute is different than having the royal prerogative, or at least it did to the founders: https://jach.law.wisc.edu/exec-power-royal-prerogative-found...

Animats3• 7 months ago

The constitutional language for appointments is:

He (the president) shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.

So the president can appoint various officials, but the Senate must, by majority vote, confirm the ones that Congress hasn't designated as not requiring confirmation.

On the removal side, there's this:

The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.

Note "all civil Officers of the United States". Any government employee can be impeached. A few judges have been impeached and convicted over the last 200 years.

That's all the Constitution says.

Cabinet members and some other high officials serve "at the pleasure of the President", and Congress has delegated authority for lower level civil servants to the executive branch and the Merit System Protection Board.

So the question for the various semi-independent boards and commissions is whether the president can remove them, or whether they need to be impeached to be removed. This is a real question where the members have a term of office set by law. Federal Trade Commission members have a 7-year term. Security and Exchange Commission members, 5 years. Federal Reserve commissioners, 14 years. Arguably, they should serve out their term unless impeached. The constitutional argument is that the executive branch has only enumerated powers, those listed in the Constitution. Since the constitution specifies both appointment and removal by impeachment, that covers the only ways such officers can enter office or be removed from it unless Congress provides otherwise.

CGMthrowaway16• 7 months ago

You are making an argument for strict enumeration, in other words that officers can only be removed via impeachment because it is the only removal method explicitly listed in the Constitution. That argument was formally rejected by SCOTUS in 1926[1], and really only in force for lifetime appointment judges today.

[1]https://en.wikipedia.org/wiki/Myers_v._United_States

bigstrat20032• 7 months ago

The constitutional argument is that the executive branch has only enumerated powers, those listed in the Constitution.

That is true of all branches of the government, not just the executive.

cryptonector2• 7 months ago

The impeachment of Andrew Johnson essentially set the precedent that the President can fire any executive officers at any time and for any reason.

anigbrowl• 7 months ago

Ironically enough, the administration is attempting to fire Lisa Cook from the Federal Reserve Board of Governors, despite the very clear existence of a 'for cause' clause, and has taken the matter to the Supreme court where it will be heard next month.

CGMthrowaway16• 7 months ago

Trump has attempted to fire Cook for cause, not outside of any for cause protections. The claim is she committed mortgage fraud.

rayiner21• 7 months ago

That’s a good analysis. But the simpler route is that there is no such thing as an “independent” agency. That’s a 20th century creation. The constitution doesn’t even talk about an “executive branch.” It vests the executive power in a single office—the President. (“The executive Power shall be vested in a President of the United States of America”).

Can congress create a law that provides for congressional aides to exercise power “independent” of Congress members? No. Can Congress create a law that provides for judicial law clerks to exercise power “independent” of Article III judges? No. It’s an extremely easy question. Myers v. United States got the right answer almost 100 years ago.

curt155• 7 months ago

Can Congress create a law that provides for judicial law clerks to exercise power “independent” of Article III judges? No. It’s an extremely easy question. Myers v. United States got the right answer almost 100 years ago.

Article I courts arguably exercise judicial power independently of the Article III judges.

But if you want to go down the separation of powers route, you'll need to break up many federal agencies to separate their legislative and judicial functions from their executive duties. That was the basis of Humphreys Excecutor, which btw was decided by largely the same court as in Myers. Humphreys (and later in Morrison v Olson) recognized that federal agencies can in practice perform "quasi-legislative" and "quasi-judicial" functions, not just law enforcement duties. There is for example a body of law governing rulemaking by agencies. Even CJ Roberts observed during the oral arguments of Trump v Slaughter that an agency's functions might span all three categories of government power -- executive, legislative, judicial -- to various degrees.

If separation of powers is to prevent Congress from wielding executive power, it should likewise preclude a president from laying claim to the other categories of power.

wahern• 7 months ago

But the simpler route is that there is no such thing as an “independent” agency. That’s a 20th century creation.

Actually, there are at least three early examples of independent agencies, though note that until the modern administrative state emerged in the late 19th century the Federal government was never so hierarchically organized as to admit to an "agency" as we understand that term today.

First was the 1790 sinking fund, a nominally executive committee created by Congress to pay down the national debt, which could override the President's preference regarding payments. Second was the office of the comptroller, which was strongly shielded from executive control for fear of a corrupt president, and which (IIRC) was the subject of vigorous Congressional debates. These two examples are possibly at least partly why in a recent emergency docket decision there's dicta exclaiming that Federal Reserve independence was not and in decisions to come would not be implicated by what SCOTUS (impliedly) has coming down the pipeline. Both of these examples would later be construed as examples of "quasi-legislative" executive agencies, rooted in Congress' power of the purse. (Though, it's likely SCOTUS will lean more heavily on powers and precedent regarding banking.)

Third was the de facto independence of federal district attorneys. Until 1820 they were answerable to nobody, except in theory to Congress by impeachment, until Congress nominally placed them under the Treasury Secretary in 1820. This would be an original example of "quasi-judicial" executive officers, which one might naturally apply to modern administrative and immigration law courts.

There are more, albeit less clear-cut practices, including the situation in Marbury v Madison. Also note that the removal power is distinct from the broader contemporary unitary executive theory, which aims to place even more plenary power in the presidency than merely removal (which is just the hook to prove the larger theory by logical inference which otherwise has little, if any, historical precedent or positive textual evidence), and therein lies much more complexity, which is why the whole debate has been muddled from the very beginning of the US--the Founders and early Congresses discussed it explicitly, but largely showing there was in fact no consensus, except what they de facto established in practice (e.g. many of those who argued for a unitary executive-like theory in fact joined in the establishment of and acquiesced to the practices of a partially independent comptroller). I think the black letter law annunciated by Humphrey's Executor, that Congress can in principle shield quasi-legislative and quasi-judicial agencies from the president, is spot on when trying to square constitutional text, constitutional theory, historical debates, and historical practice. Though, there's a good argument that over time the courts have not been vigilant enough in cabining Humphrey's Executor, e.g. by more clearly and strictly articulating what qualifies as quasi-legislative and quasi-judicial functions, which is presumably why Robert's recently suggested, as an olive branch offering, that Humphrey's Executive as applied today does not hew closely to the legal principle it expounded (and presumably, were Roberts to continue, that it applied it's own principle wrongly). Personally, I wouldn't mind a forthcoming SCOTUS opinion that effectively expands removal powers by way of affirming and applying Humphrey's Executor legal rule, even if it nominally reversed it's application with the same set of facts.

There are scores of law review articles discussing the subject going back well over a century, but a really good one written not long after the Reagan-era debates is "The President and the Administration" by none other than Cass Sunstein and (apropos HN) Lawrence Lessig, https://chicagounbound.uchicago.edu/journal_articles/7779/

That article is the most honest review of the debate I've read; perhaps too honest and earnest because they really pull their punches. (Perhaps that's partly because of Lessig's background in legal history and his reluctance to make absolute declarations about historical matters? EDIT: I confused Lessig with Eben Moglen at the FSF) It gives significant attention to Myers, FWIW, including agreeing (IIRC) that it was correctly decided.

And if you haven't read this already, here's the contemporaneous strong-man argument for independent agencies, Christine Kexel Chabot, Is the Federal Reserve Constitutional? An Originalist Argument for Independent Agencies, 96 Notre Dame L. Rev. 1 (2020), https://scholarship.law.nd.edu/ndlr/vol96/iss1/1

jmward012• 7 months ago

At this point I think we can clearly see that the interpretation of our laws is extremely partisan at the moment, to the point that what exact text says is basically irrelevant. The broader issue here is a massive, completely unchecked, power grab that is -deeply- troubling. Our checks and balances, are failing us and this is another sign of their deterioration.

buellerbueller• 7 months ago

Yes, it seems as though a politically-aligned congress is ceding lots of its authority to the executive, while the SCOTUS is restraining the rest of the judiciary from checking the executive.

The shame of this is, it is in defiance of the design of the Founders, and will take a LONG time to correct, if we don't descent into authoritarianism before it is corrected.

CGMthrowaway16• 7 months ago

You may be right, but it may be more accurate to say checks and balances are shifting, not failing wholesale.

Judicial review of executive actions is stronger and more frequent than its ever been. Congressional power of the purse is secure. And the REINS Act (not yet passed) would require Congress to approve major agency rules before they take effect

rayiner21• 7 months ago

I think we can clearly see that the interpretation of our laws is extremely partisan at the moment, to the point that what exact text says is basically irrelevant

By “at the moment,” you mean “in the 1930s when the Supreme Court bent over backward to uphold FDD’s administrative state, right?” When they effectively overruled the Supreme Court’s 1926 decision in Myers v. United States, right?

Because the text of the constitution says this: “The executive Power shall be vested in a President of the United States of America.” Show me how you get from that to executive agencies exercising executive power independent of the President.

FuriouslyAdrift• 7 months ago

Not really. Within the Court, the divide is primarily between originalists and pragmatists. This has been a fight going back a long time in legal theory. It had been dominated by pragmatists since the 1920s and the tide started to turn in the late 1980s. The current Court is dominated by originalists.

It has little to do with political parties even though originalist thought is more aligned with conservative social and political thinking and pragmatists are more aligned with progressive thinking.

troyvit• 7 months ago

If a Democrat gets the presidency in 2028 do you think they'll restore the FCC's independence? I'd be willing to bet not, because no matter which party is in power, they are going to want to continue to concentrate that power.

cryptonector2• 7 months ago

Andrew Johnson was impeached for removing Senate-approved officers. The trial failed. It's been the precedent since then that the President can terminate any and all presidentially-appointed officers, at any time, and for any reason. Sure, the SCOTUS has vascillated on this, but the courts now are being more clear now that this really is the case.

miltonlost4• 7 months ago

the courts now are being more clear now that this really is the case.

Which have been packed by Federalist ideologues for years. The "court" (as if its some one whole) isn't some nueatral 3rd party arbiter of the "law".

jshier• 7 months ago

Presidential impeachments are political processes and so do not set precedent. At least, not any more than any other political process. So it's as much a precedent as McConnell's "no SCOTUS confirmations within the year before a presidential election" or Johnson's "congress members don't need to be seated in a timely manner" precedents.

nine_zeros• 7 months ago

If anyone ever wondered how third world democracies become corrupt, you don't have to wonder any longer. Just observe the current USA.

trothamel• 7 months ago

Some context:

https://thehill.com/regulation/court-battles/5636278-trump-s...

It appears to be an open question as to if independent agencies are allowed under the constitution. The most recent round of articles seem to be like that one in The Hill, which indicate the answer is likely to be 'no'.

This seems to be in response to that.

president_zippy4• 7 months ago

The number of software engineers in this thread who think they are legal scholars is a sight to behold. It reminds me of all the bad legal advice on Stack Overflow, Quora, and Leddit.

miltonlost4• 7 months ago

The defense of clearly authoritarian powergrabs is gross to see, but expected from so many on this site

array_key_first3• 7 months ago

No but it's okay because this was how it was pre-FDR. You see we're just going back the status quo, the good ole days.

president_zippy4• 7 months ago

I didn't defend jack fuckin shit. All I did was point out that nobody arguing for or against this case on HN has anything to say worth reading about it.

yieldcrv4• 7 months ago

I hate the administrative state's current structure just enough that I don't care which administration or court dismantles it.

From my perspective the Federal Government subjugated all the states by magically noticing that all commerce had become interstate commerce by the 1930s. Its a parallel country overlaying the union of states, instead of federalism - which has a definition divergent of what "Federal" means to us in reference to the national government.

Harmonizing that all back under the President is a step, right before going after the Interstate Commerce clause itself.

I don't care how disruptive that is, its Congress' job. If Congress can't form consensus the country is done, obviously. Otherwise, surface candidates that can actually bridge consensus, which is always an option. Everyone's last minute civil rights goals aren't going to happen, duh! So drop that just like all administrations from the past 250 years did consecutively, and pass relevant things that keep the lights on.

lovich3• 7 months ago

You are upset about the federal government taking power over the states but are happy to have the power now concentrated under one man.

I don’t think you’ve thought through your point or you are desperately struggling to get through the cognitive dissonance. Nothing has indicated that SCOTUS will defang Trump. Their history so far has been heads Trump wins, tails Trumps enemy loses.

Like they ruled Biden couldn’t cancel student loans but then bend over backward to let Trump do as he pleases.

You’re getting a king, not a return of power to the states

dlcarrier• 7 months ago

I'm an electrical engineer. As someone that can release a product that works from day one, do I get to opine on this topic?

(Okay, I have an amateur radio license and have designed devices to be compliant with 47 CFR part 15, so theoretically I'm a little more versed in FCC operations, but this is all high-school level civics that seems to be actively unlearned by anyone with an MFA or any degree in journalism.)

Constitutionally, federal agencies have to be authorized by the legislative branch and executed by the executive branch. Federal agencies not only can't be truly independent, they're beholden to two separate branches of government, either of which can reduce their reach, and the judicial branch has oversight to ensure what they do is actually authorized.

Sure, the judicial branch has historically played extremely fast and loose with the constitution, e.g. by considering authority over "interstate commerce" to cover feeding your livestock with crops you grew (https://en.wikipedia.org/wiki/Wickard_v._Filburn), so plenty of blatantly unconstitutional rules have stood for extended periods of time, especially those growing the power of the executive branch, but more recently, the courts have been ruling to limit the power of the executive branch, for example preventing executive organizations from enforcing fines without authority (https://en.wikipedia.org/wiki/AMG_Capital_Management,_LLC_v....) operating without executive oversight (https://en.wikipedia.org/wiki/Seila_Law_LLC_v._Consumer_Fina...) and making up their own rules (https://en.wikipedia.org/wiki/Sackett_v._Environmental_Prote... and https://en.wikipedia.org/wiki/Loper_Bright_Enterprises_v._Ra...).

They're not likely to rule any differently in this case, and except for actions that would otherwise be unconstitutional, none of these rulings prevent congress from creating regulations or authorizations allowing federal agencies to performing their respective overturned actions, it just prevents them from acting until congress has authorized them to do so.

Also, I'm convinced that the last case involved a violation of the third amendment, but no one seems to care about the third amendment.

vel0city• 7 months ago

But if the law says "this person can only be fired for cause", and the President is supposed to faithfully execute the law, shouldn't he only be able to fire the person for cause? Or what, the President can just choose parts of the laws he doesn't like anymore while operating the executive branch and yet still be found to faithfully be executing the law?

All the laws give limitations on what the executive is allowed to do. So this idea that its limiting the abilities of the executive and that's not allowable seems meaningless to me, that's what the laws are for. The laws are there to define how the executive is to act. The executive is then supposed to faithfully do those actions.

If the President has total control over the executive branch, why can't he just go tell the people in the executive branch to go do illegal things all the time? Is he just no longer bound to the law at all? If Congress says the executive needs to make a food stamp program, should he not be required to actually make one? If the Congress says dumping hazardous waste should be limited, should he not be required to actually regulate dumping? Wouldn't he fail at faithfully executing the laws?

president_zippy4• 7 months ago

You're as qualified to opine on legal matters as is a software engineer who works in biotech to opine on medicine. That is to say, a lot less than you think.

You're not Antonin Scalia, you didn't earn it- have some humility.

dmitrygr• 7 months ago

The way I read the US constitution, every federal government agency is necessarily contained in one of the three branches, since the entire federal government is made of and only of those three branches. FCC is not in the legislative branch -- constitution is clear that that is only the congress, it is not judicial -- the constitution is clear that those are the courts. So it is in the executive, which makes sense since its job is to enforce law -- the job of the executive branch. The executive branch reports directly to and is directly answerable to the head of the executive -- the president.

The congress cannot legislate a fourth branch even if they wanted to. They'd need a constitutional amendment for that. We have thus, by a simple application of reading and logic concluded that this is precisely as is expected given the US constitution.

0xbadcafebee• 7 months ago

Cool! Assuming we don't go full-on 1930s-Germany, and Trump actually leaves office, then the next liberal president can have the FCC remove Fox News' broadcast license.

alsetmusic• 7 months ago

Toadies doing the bidding of their master are the worst kind of boot-lickers because they mistakenly think they won't be crushed when they become inconvenient.

yieldcrv4• 7 months ago

Nice, interstate commerce next.

Sorry Justice Sonia Sotomayer, the country is only in this quagmire because of the New Deal interpretation of the interstate commerce clause

Most of the New Deal was struck down in the 1930s, that should be cause to question the constitutionality of everything that remains. From what I can tell, everything that remains just was hard to get standing to challenge within the courts. Now we have someone who can get standing very easily, going after it, right to the jugular.

array_key_first3• 7 months ago

The new deal is, like, one of three reason that the US isn't a complete shithole. The new deal is responsible for so, so much of the prosperity of the golden age of America that it cannot be understated.

yieldcrv4• 7 months ago

And most of it was struck down immediately, with the dismantling solved by the most serious threat of packing the Supreme Court by the President and his party

what stands out to me is that this President is written about favorable in our history books despite that plan being far more egregious and unprecedented at the time

in any case, the court shifted its tune as a compromise not as a matter of actual opinion of the constitution

and like I previously wrote, everything else was just hard to challenge at all, unless you are a President suddenly trying to fire some folks

the US advancing from a backwater to an economic powerhouse is great! I wonder if we can do it another way without leaning on the Interstate Commerce clause to regulate all facets of American life

lovich3• 7 months ago

Whelp. Here’s more sanewashing of this admin. This headline is false and helping to ameliorate their crimes.

He directly said it was not an independent agency, he didn’t “suggest” it. But we’re in the era where organizations like the BBC have people resign because the King doesn’t like their version of reality so I guess I better brush up on my NewSpeak

FCC chair suggests agency isn't independent, word cut from mission statement

Related Stories