The Trump administration has sought greater power than independent institutions. But if the president controls the FCC, will his speech be free?
Who is FCC Chairman Brendan Kerr?
Democratic leaders have called for FCC director Brendan Kerr to step down seeking criticism over his comments about ABC and Jimmy Kimmel.
When Donald Trump proposed revoking the government-issued broadcasting license for television stations that covered him negatively, he stepped on the line that many presidents dared not cross over before him.
He challenged the Federal Communications Commission-Federal Communications Commission work, which Congress founded 91 years ago to become independent from the influence of the president. The president has never fired a committee member, and many commissioners have defended open defenders of freedom of speech.
But if Trump has his way, he will have more power over the FCC in the near future. That’s because his administration is pushing for more control over independent institutions, and so far they’ve won.
If they succeed in court in the coming months, the administration will overturn the federal administrative state and create an independent body like the FCC, just like any other cabinet institution that has been ordered by the president.
On September 17, FCC chairman Brendan Kerr, who was closely tied to Trump, said the FCC had “a lot of work” if the company that aired late-night comedian Jimmy Kimmel “does” Kimmel’s comments relating to conservative activist Charlie Kirk’s suspicious shooter.
“This is a very serious problem for Disney right now,” Kerr said, referring to ABC’s parent company that airs “Jimmy Kimmel Live!” “We can do this in an easy or difficult way.” (Ker later said he never threatened anyone’s broadcast license, but Trump suggested punishing unfavourable broadcasters the next day..))
Disney temporarily suspended Kimmel’s show before reviving him, but people on the left and right worried about violating freedom of speech.
“It may feel good to threaten Jimmy Kimmel right now, but when it is used to silence all the conservatives in America, we regret it,” said Sen. Ted Cruz, a Republican.
“In real time, we see what happens when the wall of independence is demolished and the commissioners of agencies that are supposed to be independent under the law seem to be answering directly to the president,” says Michael Sozan, senior fellow at the Center for American Progress, a liberal think tank.
The FCC and the White House did not provide comment on the story, but Trump called Kerr “American Patriot” and said he opposed Cruz’s comments.
Unitary Executive
The Supreme Court heard in December that the Trump administration was trying to reverse precedents protecting many of these board members from presidential dismissals, and jurists say the writing has appeared on the wall for years for a majority preservation court with the Trump administration.
The Trump administration has laid the legal basis for administering dozens of independent bodies similar to the FCC by fired and being sued, and then as the only executive of the country, traversing his rights to court illegally as the country’s only executive, he sets the legal basis for administering dozens of independent bodies similar to the FCC.
At the root of all this is the unified theory of enforcement, which states that enforcement is solely in the president, and those who exercise it on his behalf should be fired by him. It often involves creating rules and policies on issues ranging from the safety of children’s toys to what Americans can see on television.
For example, the Securities and Exchange Commission, designed to protect investors and maintain financial markets, is one of two or more Doen institutions legally similar to the FCC. So are the National Credit Union administration and the Federal Election Commission, where Trump fired members of the Democratic Party in April.
“You can agree to the agency’s lawsuit, you can oppose the agency’s actions, but at the end of the day you know who should be responsible for the actions taken by the agency,” Zach Smith, a senior law fellow at the Conservative Heritage Foundation, explained the Trump administration’s position.
Smith said the president’s vision of power returns to the framer of the constitution, with all presidents saying, “If there are Republicans, if you are in office, if you are independent.”
Thomas Berry, director of the Libertarian Cato Institute’s Constitutional Research, says he supports the theory of unity enforcement and hopes that an independent body will look like a cabinet body that can implement the president’s agenda and fire its leaders by the president. The powers they currently have, such as when the Securities and Exchange Commission hears and decides appeals from the court, are similar to those of a judge.
“We’re not that much professional in the administrative sector where we have a lot of power,” said Berry, who generally agrees with a single theory of enforcement. “I think there is actually too much power in government agencies, and I think it’s a matter of all the power that it legally holds.
Mitchell Sorenberger, a professor of political science at the University of Michigan, said he wrote a book called “The Risk of a Uniform Government to the Constitutional Government.”
Sollenberger said that the country’s founders chose to have a single executive and considered having multiple executives before abandoning its plans, but said modern unified enforcement theory ignores checks and balances from legislative and judicial branches, as well as the mixed forces produced.
“You are not a stone that separates you from the end of dictatorship and fascist governments,” Sorenberger said.
Does a single executive affect the FCC?
Experts agree that Trump will gain more power over the FCC if the court gives him the authority to fire the commissioner running the agency. But that doesn’t mean they agree with Carr’s decision to threaten broadcasters over the late-night comedian’s comments.
Sozan said the extensive power of the FCC can be used to control much of what Americans see and hear. You can verify that the broadcaster is licensed to the broadcaster, approval of mergers and acquisitions between major media companies, interpretation of legal provisions affecting social media companies, and that the broadcaster operates in the public interest.
“The FCC is one of the institutions that the president can weaponize on its own,” he said. “The FCC, such as Chairman Kerr, can take great steps towards infringing one of our absolute most important rights and freedoms: freedom of speech.”
Berry said there are “many indications” that Kerr’s actions “were crossed boundaries into an unconstitutional First Amendment violation because they are forcing private companies to take action.” He said that strong judiciary needs to be a check of enforcement to handle the issue.
However, he warned that someone should sue the FCC, and it is not clear who has legal rights. He also questioned who had the will and who had the money to do it. “People often don’t want to get on the bad side of their administration,” he said.
Brent Skollup, a law fellow at the Cato Institute who once worked at the FCC, said presidents such as Franklin D. Roosevelt, John F. Kennedy Jr. and Richard Nixon were putting pressure on agents to do what they wanted. The revelation came out a few years after their president ended.
“I can’t remember what the president is doing publicly,” he said. “It happened personally. I don’t know which one is worse.”
