The Status of Independent Agencies after Bowsher v. Synar

Abstract

The concept of a multimember, bipartisan, expert tribunal free from direct control by the legislative and executive branches of government was an appealing premise of the New Deal administrative state.1 The independent agency was thought to embody this concept. The label independent, while aptly describing the function of these agencies, at the same time raised difficult and so far unresolved constitutional questions about their place in our tripartite system of government.2 Over the years, the growth of executive departments and executive branch agencies and the advent of deregulation have diminished the role and stature of independent agencies.3 But no administration prior to the present one directly attacked the concept of agency independence from the constitutional perspective. The Reagan administration has questioned the constitutional legitimacy of administrators who perform executive functions independent of executive control.4 Now that the issue has been raised, it is easy to predict a series of judicial challenges to the