How Independent Are Independent Regulatory Agencies?

Abstract

Asking me to comment on how independent are independent regulatory agencies is rather like asking me to comment on the weather in Antarctica: I've never been to either place, but I've seen both of them from the outside, and at least have some impressions about them both. Some of my observations were gleaned while I was an Assistant U.S. Attorney in the Southern District of New York representing both independent and dependent executive branch agencies. I also have litigated against both varieties in the 16 years since I left that office. My present office has also been involved at the administrative level with agencies of both kinds, and, as a member of the Administrative Conference of the United States, I have seen representatives of both groups participating in Conference proceedings. Thus, while an insider, I do have some impressions of independent agencies, but they should be seen as no more than one person's view, and a full attempt to describe that landscape. There is no official definition of an independent agency, either in the Administrative Procedure Act, or elsewhere. Thus, the term may be defined in many ways, but for me an independent agency is one whose members may be removed by the President except for cause, rather than simply because the President no longer wishes them to serve, much as he could dismiss the Secretary of State or other high officials in his administration. To be sure, there are other characteristics generally associated with independent agencies. Typically, they are multi-member bodies, they usually have both rulemaking and adjudicative functions, and there are often limits on the number of members of one political party who may serve on them at any one time. None of these is a necessary ingredient, nor are they unique to independent agencies. The basic question to be asked is, how independent are independent agencies? The answer, it seems to me, is not very. The key person at the independent agencies is the chairman who can be redesignated on an annual basis by the President. In addition, the agency's budget must go through the Office of Management and Budget (OMB), and, with only a minor wrinkle or two, the independents are subject to the requirements