When the White House Blocks Your Agency’s Rule: Legal Options for Fighting Back

Last updated 3 months ago. Our resources are updated regularly but please keep in mind that links, programs, policies, and contact information do change.

On February 18, 2025, President Trump signed an order that requires independent regulatory agencies—the Federal Reserve, the Securities and Exchange Commission (SEC), the Federal Trade Commission (FTC), and others Congress specifically designed to operate outside presidential control—to submit their proposed rules to the White House for review before publication. The practical effect functions as a requirement for approval, as rules cannot proceed without White House clearance.

This raises an immediate question: what happens when an agency concludes it has the legal power Congress gave it to issue a rule, and the White House refuses to clear it?

The agencies have legal strategies that could force this question into federal court and ultimately the Supreme Court.

What the Order Demands

The order mandates that independent agencies submit all important new rules to the Office of Information and Regulatory Affairs before publication in the Federal Register. OIRA sits inside the White House. For decades, dating back to the Reagan administration, independent agencies have been exempted from this requirement. Trump eliminated that exemption.

An independent agency can no longer issue a rule without White House pre-approval. When the Federal Reserve wants to regulate bank capital requirements, when the SEC proposes disclosure rules for public companies, when the FTC tries to stop predatory lending—OIRA gets to review it first, reject it, send it back for revisions, or let it die in the queue.

The Constitutional Foundation

A 1935 Supreme Court case called Humphrey’s Executor v. United States was decided unanimously. Franklin Roosevelt tried to fire a Federal Trade Commission member, William Humphrey, because of policy disagreements. The Court said no. Congress has constitutional authority to restrict presidential removal power over officials performing functions that mix judicial and legislative duties rather than purely executive ones.

That case has never been overruled. But recent Supreme Court decisions have chipped away at it. Seila Law v. CFPB struck down the single-director structure of the Consumer Financial Protection Bureau, holding that a single director with for-cause removal protection violated the separation of powers. Free Enterprise Fund in 2010 eliminated multiple levels of job protection. The Court’s conservative majority seems increasingly receptive to the idea that the President must have ultimate control over all branch officials.

Agency chairs at multi-member independent agencies face a dilemma: comply with an order that may violate the independence Congress created, or resist and risk being removed by a president who believes he has that power.

Strategy One: Sue Before Complying

An agency could file a lawsuit immediately challenging the order’s constitutionality, arguing the order violates separation of powers and exceeds presidential authority. Such a case would likely land in federal district court in D.C., seeking a ruling that the order is unconstitutional and an injunction preventing its enforcement.

The first hurdle is proving the agency has been harmed enough for courts to hear the case. The agency might argue it’s been prevented from exercising the legal power Congress granted it, or that it must expend resources complying with an order it believes violates law.

Federal law permits any person suffering legal wrong due to agency action to seek judicial review. An agency could argue that OIRA’s blockade constitutes illegal “agency action”—specifically, illegally preventing the agency from doing what Congress told it to do.

This litigation would take years, and the outcome is uncertain given the current Supreme Court’s composition.

Strategy Two: Get Congress to Fix This

Congress created these independent agencies because members from both parties concluded that presidential control of banking regulation, securities regulation, and consumer protection posed dangers to sound policy.

Congress has immediate tools. It could refuse to appropriate funds for OIRA to implement this order. It could amend the relevant statutes to explicitly prohibit OIRA review or reaffirm the agencies’ authority in language that can’t be misinterpreted. Congress could pass a joint resolution disapproving of the order, though this has never been used this way.

This is the most likely path to successful resistance because it’s what the Constitution designed to stop presidents from abusing power.

Strategy Three: Issue the Rule Anyway

An agency could finish making the rule following legal procedures, publish the proposed rule and collect public feedback, issue a final rule, and publish it in the Federal Register without OIRA’s blessing.

The legal theory is straightforward. The agency’s statute, not an order, governs the agency’s authority. Congress granted rulemaking authority and the law prescribes the procedures for exercising it. An order cannot impose additional prerequisites not in the statute or the law.

The rule would be legally effective. Companies and government officials would have to follow it. The question becomes whether the branch itself would comply or challenge it in court.

One scenario: the Department of Justice files a lawsuit arguing the rule violates legal principle or exceeds what Congress allowed. But this presents a problem for the Trump administration. The Justice Department’s job includes defending federal agencies in court. Historically, the Justice Department represents agencies even when they’ve acted contrary to presidential preferences. The Justice Department actively suing its own agency signals a major constitutional crisis that would go to the Supreme Court.

Another scenario: Trump fires agency leaders and replaces them with compliant appointees. At multi-member independent agencies like the FTC, he might only be able to remove the chair or acting officials, depending on the specific statute.

An intermediate approach: asking a court to order a government official to follow the law. An agency concluding it has a statutory duty to issue a rule while OIRA is preventing it could petition a federal court to order OIRA to approve the rule or cease interfering. Federal courts in 2025 have shown willingness to police compliance with their directives through court orders that temporarily block government action.

The Administrative Procedure Act Angle

Federal law establishing how agencies make rules requires specific procedures agencies must follow when issuing rules. Courts have interpreted the law to limit what extra steps agencies must satisfy beyond what the statute authorizes.

OIRA review constitutes a procedural requirement imposed by order that’s not authorized by statute or the law itself. An agency could argue that complying with OIRA review would violate the law. This creates a bind: issuing a rule without OIRA approval means the agency complies with statutory procedure but violates the order. Seeking OIRA approval may violate the law because no statute authorizes OIRA to impose such requirements.

Courts have ruled that when an agency action violates procedural requirements, the remedy is to invalidate the action and send it back to the agency to try again. An agency could argue that any rule issued after OIRA review that imposed requirements not in the statute was issued in violation of the law.

OIRA itself could be challenged for taking “agency action” without following procedures. Treating OIRA as an agency means its decision to block or condition approval of another agency’s rule might itself require the process where agencies publish proposed rules and collect public feedback. The agency could petition a court to invalidate OIRA’s blockade as unreasonable or based on whim rather than logic, or because it didn’t follow the right legal process.

This angle is powerful because it doesn’t require open defiance. The agency argues that compliance would violate law. When an agency faces a legal constraint that prevents compliance with an order, the order gives way to law.

How the Death of Chevron Changes Everything

A 2024 Supreme Court case called Loper Light Enterprises v. Raimondo overruled a rule that courts had to accept agencies’ reasonable interpretation of laws. For four decades, courts had to accept agencies’ reasonable interpretation of unclear language in laws. The Court abolished this framework, holding that courts must determine the “best interpretation” of a statute without giving the agency any deference.

For independent agencies resisting OIRA control, the Supreme Court overruling Chevron means they need not assume courts will defer to presidential interpretation of statutory authority over them. When an agency and the White House disagree about whether OIRA has authority over a particular rulemaking, courts will now decide independently what the statute authorizes. An agency’s statute clearly granting rulemaking authority to the agency (not the President) means courts will likely uphold the agency’s interpretation that OIRA cannot block the rule.

The administration may attempt to use the Supreme Court overruling Chevron to argue it can reinterpret the boundaries of agency authority in ways that give the president more control over what agencies can do. The administration has already issued orders requiring agencies to identify regulations that exceed statutory authority or that “are based on anything other than the best reading of the underlying statutory authority.”

But the same reasoning cuts both ways: courts independently determining statutory meaning without deferring to agencies must also independently determine statutory meaning without deferring to Presidents.

What Compliance Means: Regulatory Paralysis

OIRA review of agency rules has notoriously created delays. When major rules are submitted to OIRA, they often face months of review, revision, and negotiation before clearance. OIRA has limited staff—typically fewer than fifty people reviewing hundreds of proposed rules annually.

Independent agencies suddenly required to go through OIRA review issue numerous rules each year. The review process would likely grind to a halt. Rules addressing emerging financial stability risks, securities fraud, labor violations, or consumer fraud would be delayed indefinitely pending White House approval.

This creates a practical incentive for agencies to resist. An agency chair facing growing complaints about unfair lending practices might conclude that rules stopping being made violates the agency’s statutory obligation to protect consumers. OIRA preventing the agency from doing what Congress told it to do means OIRA is itself violating the agency’s statutory duties.

The Federal Reserve faces particular pressure here. Banking instability—a new round of bank failures or systemic financial risks—would require the Fed to respond quickly with regulatory action. OIRA approval being required while White House staff are unavailable or refuse to clear the Fed’s rule would compromise the Fed’s ability to fulfill its statutory mandate to promote banking system stability. A federal judge might be more sympathetic to a Fed argument that OIRA interference violates law under emergency circumstances.

The Supreme Court Is Already Hearing This Question

Independent agencies resisting and litigation resulting would almost certainly push the constitutional questions to the Supreme Court. In December 2025, the Court heard oral arguments in Trump v. Slaughter, concerning whether Trump could fire an FTC commissioner. The justices’ questions suggested significant sympathy for the administration’s claims that the president controls all agencies.

A majority seemed ready to overturn the rule protecting agency leaders from being fired without cause, though there was less clarity about whether they would overrule Humphrey’s Executor outright. Justices Sotomayor and Kagan pressed skeptical questions about the administration’s claims that the president controls all agencies, but they appeared to be in the minority.

Justice Alito suggested interest in decisions that only apply to this case, not to other agencies. Justice Kavanaugh expressed “real doubts” about some aspects of the administration’s argument.

The Court’s opinion will matter enormously for the entire structure of how the government will be organized and run. Lower courts have shown willingness to temporarily block aspects of Trump administration orders when they appeared to exceed legal authority.

What Happens Next

In the coming months, independent agencies will face immediate practical decisions. Some may comply while preparing legal challenges. Some may follow the order for some rules but not others. Some may issue rules without OIRA approval and wait to see how the administration responds.

The Federal Reserve, given its special status and the exceptions for monetary policy in the order, will likely take a different approach than agencies like the SEC or CFPB. The Fed’s power to control interest rates and money supply is so well-established that the order explicitly exempted those operations from OIRA review, covering only overseeing banks and making banking rules. This exception itself suggests recognition that some aspects of agency authority are too firmly entrenched to openly challenge.

The administration will need to decide whether to enforce compliance through removals of agency leaders who defy the order, through budget cuts, or through litigation. Each way of enforcing the order creates its own legal problems. Removals immediately raise the question of whether Trump has authority to fire someone for a specific reason or is acting in violation of law. Budget cuts raise questions about compliance with appropriations law. Litigation requires the administration to litigate against its own officials and agencies.

The most likely outcome over the next two to three years involves a combination of strategies. Some rules will be delayed by OIRA review. Some independent agencies will comply. Some will resist through litigation or congressional action. The Supreme Court will likely rule on the constitutional questions in Trump v. Slaughter and possibly other removal power cases, potentially giving the administration the legal foundation to more aggressively enforce the order.

The fundamental question remains unresolved: does the Constitution permit Congress to create officials who are protected from being fired or controlled by the president? For nearly ninety years, the answer was clearly yes, based on Humphrey’s Executor. For the past fifteen years, that answer has become increasingly uncertain as the Supreme Court has chipped away at protections.

The order represents a test of whether the protections have been weakened enough that Trump can command independent agencies as though they were regular agencies. The legal battles ahead will determine how the government will be organized and run, and whether independence means anything at all.

Our articles make government information more accessible. Please consult a qualified professional for financial, legal, or health advice specific to your circumstances.