By Lindsey Mattila (CMC ’17)
On January 25th, reports emerged from employees at the Environmental Protection Agency (EPA), Human and Health Services, and Department of Agriculture that the Trump administration had enforced rules that would limit their communication and research. The days that followed were filled with uproar as environmental, health, and agriculture advocates worried about the ability of independent government agencies to continue publishing transparent research. While the idea of “censorship” raises red flags in the United States, President Trump is not the first to assert gag orders over federal agencies. Thus, although there is some precedent, the important question is whether these orders interfere with the agencies’ right to free speech.
Gag orders were first established by the Supreme Court in 1976 in the Nebraska Press Association v. Stuart case. The intent of the Court’s decision was to limit the communication between the media and those involved with high-profile court cases to ensure a fair trial. This court decision limits the media’s free speech because it acknowledged the effect that public opinion can have on legal and policy issues. Recent presidents, however, have been using this reasoning to sever communication among government agencies, Congress, and the media. Trump, for example, ordered that the EPA halt social media and press communications, take down the climate change portion of its website, and freeze all research grants. Health and Human Services has also been barred from public communication with the press or Congress, but only until they have had a proper meeting with President Trump. It is likely that Trump is using these gag orders to align agency research and, therefore, public opinion with his agenda.
This is not the first time that a president has enforced limitations on agency communication. President Reagan was known for heavily lobbying independent agencies to use them as an extension of his own political agenda through the use of a formal vetting process. Agencies, for example, had to have their research approved by the Office of Management and Budget prior to release. Each president after Reagan has used similar executive orders to keep the vetting process in tact. In 1991, the U.S. Court of Appeals for the District of Columbia ruled that presidential lobbying of independent agencies was legal, but direct decision-making was not. Additionally, presidents are legally granted the opportunity to appoint agency leaders, which strengthens the president’s influence over the agencies’ agenda. The George W. Bush administration reportedly used this influence over agency leaders to regulate and restrict information surrounding climate change that was published by the EPA. These are a few of the historically accepted gag orders that presidents can use to influence agency research and publication.
Though Trump’s gag orders have gone beyond precedent and beyond the initial intent of gag orders, there is not much legal precedent to show that Trump’s administration has acted illegally. Trump’s administration is already primed to defend its executive power in the courts just a few weeks into Trump’s presidency. Perhaps this administration will see a legal limit on gag orders and legitimate uses of lobbying agencies in the next few years. On the other hand, Trump’s presidency may be establishing a precedent for the use of presidential influence. His use of gag orders over independent agencies is an example of the broader issue of how much executive power should influence governmental functions outside of the Oval Office.