Presidential Review: The President’s Statutory Authority Over Independent Agencies

33 Pages Posted: 3 Feb 2020 Last revised: 6 Feb 2020

See all articles by Cass R. Sunstein

Cass R. Sunstein

Harvard Law School; Harvard University - Harvard Kennedy School (HKS)

Adrian Vermeule

Harvard Law School

Date Written: January 16, 2020

Abstract

Many presidents have been interested in asserting authority over independent regulatory agencies, such as the Federal Trade Commission, the Federal Communications Commission, the Nuclear Regulatory Commission, the Securities and Exchange Commission, and the Federal Reserve Board. The underlying debates raise large constitutional questions, above all about the meaning and justification of the idea of a “unitary executive.” In the first instance, however, the president’s authority over independent agencies depends not on the Constitution, but on a common statutory phrase, which allows the president to discharge the heads of such agencies for “inefficiency, neglect of duty, or malfeasance in office.” This phrase – the INM standard – is best understood to create a relationship of presidential review and a particular remedy for legal delinquency flowing from that review. It allows the president to discharge members of independent agencies not only for laziness and torpor (“inefficiency”) or for corruption (“malfeasance”), but also for neglect of their legal duty, which includes clearly erroneous decisions of policy, law, or fact, either repeatedly or on unusually important matters. Connecting this understanding to the Take Care Clause, we reject both a minimalist approach, which deprives the president of any kind of decisionmaking authority over policy made by independent agencies, and also a maximalist approach, which would treat the independent agencies as essentially identical to executive agencies, in terms of presidential oversight authority. This approach has strong implications for how to understand the President’s supervisory authority over the independent agencies; it suggests that he has such authority insofar as he is attempting to ensure against “neglect of duty” but not if he is displacing their policymaking discretion.

Suggested Citation

Sunstein, Cass R. and Vermeule, Adrian, Presidential Review: The President’s Statutory Authority Over Independent Agencies (January 16, 2020). Available at SSRN: https://ssrn.com/abstract=3520879 or http://dx.doi.org/10.2139/ssrn.3520879

Cass R. Sunstein (Contact Author)

Harvard Law School ( email )

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Harvard University - Harvard Kennedy School (HKS) ( email )

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Adrian Vermeule

Harvard Law School ( email )

1525 Massachusetts
Griswold 500
Cambridge, MA 02138
United States

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