Abstract

Republicans and Democrats are fighting the wrong fight over independent agencies. Republicans are wrong to see independent agencies as anathema to hierarchical presidential control of the administrative state. Democrats are likewise wrong to reflexively defend independent agency expertise and influence. Supreme Court Justices also need to break free from this trap; the ongoing struggle over independent agencies should be about facts, not partisan rhetoric.

This Article seeks to reframe the fight over independent agencies. By surveying executive branch and independent agency department heads and supervisors during the Obama (2014) and Trump (2020) administrations, we have assembled unique and expansive data for evaluating agency performance. This data is also uniquely reliable: Notwithstanding fundamental differences in the rhetoric and strategies of these two administrations, these surveys of 554 political appointees and 4,776 career executives reinforce each other. The hallmarks of independent agency design (including staggered terms, for cause removal, and partisan balancing) neither facilitate nonpartisan expertise nor shield independent agencies from presidential control.

Our findings are striking and disturbing. Contrary to the goals and assumptions of Progressive Era designers, independent agencies are not particularly expert, influential, or independent. Indeed, the very touchstones of today’s politics— party polarization and presidential unilateralism—cannot be squared with Progressive Era assumptions about both independent agency decision-making (including that agency decision-making is expert, apolitical, fact-based, and durable) and the willingness of political actors to support independent agency decision-making. Correspondingly, we recommend that Congress no longer turn to the independent agency design when establishing new federal programs. Our data also calls attention to a critical divide between major and smaller independents. In the maelstrom of party polarization and presidential efforts to gain control of major independent agencies, smaller independents are largely forgotten by a government that has too many agencies to manage and too many Senate-confirmed vacancies to fill. In other words, our government is overburdened and these agencies are its orphans. We recommend that smaller independents be relocated to the executive branch where they would benefit from coordinated executive branch initiatives, Department of Justice representation, and Office of Management and Budget review. For the major independent agencies, we argue that the independent agency design may not work well but ought not to be completely jettisoned. It is not obvious that these agencies will be more successful in the executive branch and there are risks of unintended negative consequences.

Document Type

Article

Publication Date

11-2023

Publication Information

108 Cornell Law Review 1305-1374 (2023)

Download

Share

COinS