Cornell Law Review Volume 98 Issue 4

Deconstructing Independent Agencies (and Executive Agencies)

Volumes have been written—both by courts and commentators—about the so-called independent agencies. These agencies are thought to be distinct from executive branch agencies and constitutionally insulated from presidential influence. Yet few have paused to ask what features make an agency “independent” as opposed to “executive.” To answer that question, this Article systematically surveys administrative agencies for a broad set of indicia of independence: removal protection, multimember structure, partisan balance requirements, budget and congressional communication authority, litigation authority, and adjudication authority. This Article also examines the functional differences between independent and executive agencies. As it turns out, there is no single feature, structural or functional, that every agency thought of as independent shares—not even the for-cause removal provision commonly associated with independence. We therefore reject the binary distinction between independent and executive agencies. Instead, all agencies should be regarded as executive and seen as falling on a spectrum from more independent to less independent. From this new understanding of administrative agencies flows a simple theory of presidential control: A President can take any action with respect to an agency (assuming it is within his Article II powers) unless Congress has prohibited that action by statute (in a manner that does not encroach upon the President’s Article II powers). There is no tenable argument to justify an extra layer of constitutional or statutory limits to presidential interaction with agencies.

To read the complete Article, click “VIEW PDF” below.

:: View PDF