The Future of Agency Independence

57 Pages Posted: 2 Feb 2010 Last revised: 18 Feb 2010

See all articles by Lisa Schultz Bressman

Lisa Schultz Bressman

Vanderbilt University - Law School

Robert B. Thompson

Georgetown University Law Center

Date Written: February 1, 2010

Abstract

Independent agencies have long been viewed as different from executive-branch agencies because the President lacks authority to fire their leaders for political reasons, such as failure to follow administration policy. In this Article, we identify mechanisms that make independent agencies increasingly responsive to presidential preferences. We find these mechanisms in a context where independent agencies traditionally have dominated: financial policy. In legislative proposals for securing market stability, we point to statutorily mandated collaboration on policy between the Federal Reserve Board and the Secretary of the Treasury. In administration practices for improving securities regulation, we focus on White House coordination of, and Treasury Department involvement in, the policy of the Securities and Exchange Commission. We argue that these mechanisms undermine the conventional distinction between independent agencies and executive-branch agencies. Additionally, we argue that these mechanisms, though producing presidential involvement short of plenary control, are consistent with the strategic political interests of the President. We further contend that they promote political accountability, particularly because greater presidential control is unnecessary to align agency preferences with presidential preferences and instead might be counterproductive. In making this argument, we present a nuanced vision of accountability and update the standard justifications for independence. We also consider the constitutional implications of the new independence-accountability hybrids that we see, as well as possible applications in areas where executive-branch agencies traditionally have dominated. Our claim is not that these hybrids are part of law in any of these contexts; rather, we seek to highlight institutional relationships that outstrip conventional categories but fit with the development of the administrative state. In the future, agency independence will occur not at odds with political accountability but engaged with it along a spectrum of institutional structures.

Keywords: agency, executive branch, President, presidential control, accountability, expertise, independence, financial reform, positive political theory, political science, health care, climate change, OIRA, SEC, Fed, PCAOB, Treasury, securities, market stability, monetary policy, interest rates

Suggested Citation

Bressman, Lisa Schultz and Thompson, Robert B., The Future of Agency Independence (February 1, 2010). Vanderbilt Law Review, Vol. 63, 2010; Vanderbilt Law and Economics Research Paper No. 10-02; Vanderbilt Public Law Research Paper No. 10-01. Available at SSRN: https://ssrn.com/abstract=1546103

Lisa Schultz Bressman (Contact Author)

Vanderbilt University - Law School ( email )

131 21st Avenue South
Nashville, TN 37203-1181
United States
615-343-6132 (Phone)
615-322-6631 (Fax)

Robert B. Thompson

Georgetown University Law Center ( email )

600 New Jersey Avenue, NW
Washington, DC 20001
United States
(202) 661-6591 (Phone)

Register to save articles to
your library

Register

Paper statistics

Downloads
276
Abstract Views
2,260
rank
111,208
PlumX Metrics