Note, In Defense of Administrative Agency Autonomy

Abstract

Recent Supreme Court decisions suggest that Congress lacks the constitutional authority to insulate any federal agency or high-ranking civil officer from complete presidential control, and that so-called independent federal agencies may therefore be unconstitutional. The Justice Department and many legal scholars concur. If the courts adopt this view, Congress will lose the most practical of its few remaining tools for ensuring federal administrative fidelity to legislative intentions. This Note argues, however, that the Constitution permits Congress to create executive agencies with substantial autonomy, regardless of whether they are called independent.

Because autonomy requires insulation from politically motivated removal, Section I begins by analyzing the reach of the President's removal power. It then offers a reinterpretation of terms in Humphrey’s Executor v. United States, the key modern case holding that Congress may constrain the President's removal power. Distinguishing between presidential powers, which belong to the President alone, and more general executive powers, which do not, allows Congress to use agency autonomy as a constraint on presidential discretion and gives Congress an option besides acquiescence or impeachment when confronted by presidential disregard of the legislative will.

Agency autonomy does not embrace the rejected concept of a plural executive, nor does it amount to a fourth branch of government. Section II demonstrates that the degree of autonomy implied by the presidential-executive distinction is consistent with the constitutional text, structural constitutional theory, the intent of the Framers, a long history of legislative practice, and much administrative history as well. Section III outlines how the presidential-executive distinction can work in practice, and applies it to pending allegations that agencies whose top officials do not serve at the pleasure of the President violate the separation of powers when they take executive actions.

Keywords: separation of powers, Humphrey's Executor, constitutional law, administrative law, executive power, legislative power, executive action