Ally Coll (CUNY School of Law) & Tyler Hagenbuch have posted Preventing Election Subversion without Agency Independence on SSRN. Here is the abstract:
Since Donald Trump’s inauguration to his second term in January 2025, the President has taken unprecedented steps to undermine the functions of independent federal agencies. Such actions have included unlawful firings of multiple independent agency heads and the issuance of Executive Order 14215 calling for “Presidential supervision and control of the entire executive branch,” including independent agencies. Through both emergency docket rulings and merits decisions, the Supreme Court has demonstrated its openness to undermining longstanding precedents protecting independent agencies from presidential interference. These developments have particularly dangerous implications for our democracy. Among the independent agencies targeted by Trump, several have historically played a key role in promoting free and fair elections: The Federal Elections Commission (FEC), the Election Administration Commission (EAC), the Federal Communications Commission (FCC), and the United States Postal Service (USPS). Part I describes the rise of independent agencies and the recent emergence of election subversion threats. Part II explains why Congress created several distinct independent agencies to oversee the administration of federal elections and describes their election-related functions. Part III outlines the unprecedented steps President Trump has taken since regaining power to undermine the independent functioning of these and other independent agencies and details the Supreme Court’s acquiescence of these actions. Part IV explains the implications for future federal elections if the President is able to effectuate direct control over the policies and programs administered by the FEC, EAC, FCC, and USPS. Part V argues that, in order to safeguard the fairness of future federal elections, Congress should reassert control over core federal election administration functions by placing the enforcement of relevant statutes in either Article I courts or in new or existing Congressional committees.