Independent Agencies in the United States

It is essential for anyone involved in law, politics, and government to comprehend the workings of the federal independent regulatory agencies of the United States. Occasionally referred to as the "headless fourth branch of government," these agencies do not fit neatly within any of the three constitutional branches. Their members are appointed for terms that typically exceed those of the President, and cannot be removed from office in the absence of some sort of malfeasance or misconduct. They wield enormous power over the private sector. Independent Agencies in the United States provides a full-length study of the structure and workings of federal independent regulatory agencies in the US, focusing on traditional multi-member agencies, such as the Securities and Exchange Commission, the Federal Communications Commission, the National Labor Relations Board, and the Federal Trade Commission. It recognizes that the changing kaleidoscope of modern life has led Congress to create innovative and idiosyncratic administrative structures including government corporations, government sponsored enterprises governance, public-private partnerships, systems for "contracting out," self-regulation and incorporation by reference of private standards. In the process, Breger and Edles analyze the general conflict between political accountability and agency independence. They provide a unique comparative review of the internal operations of US agencies and offer contrasts between US, EU, and certain UK independent agencies. Included is a first-of-its-kind appendix describing the powers and procedures of the more than 35 independent US federal agencies, with each supplemented by a selective bibliography.

Auteur

Marshall J. Breger is a Professor of Law at the Columbus School of Law, The Catholic University of America. He was a Senior Fellow at the Heritage Foundation specializing in labor, regulatory and trade policy (including NAFTA). During the George H.W. Bush Administration, he served as Solicitor of Labor, the chief lawyer of the Labor Department, and Chair of the Tripartite Advisory Panel on International Labor Standards (TAPILS). During 1992, by Presidential designation, he served concurrently as Acting Assistant Secretary for Labor Management Standards. He was Chairman of the Administrative Conference of the United States, an independent federal agency charged with developing improvements in the administrative process. Professor Breger is a contributing columnist to Moment magazine. He has authored or edited five books, as well as written over 25 law review articles in publications including the Stanford Law Review, Boston University Law Review, Duke Law Journal and North Carolina Law Review. Among his recent books on administrative law are: ADR in the Federal Government: A Practitioner's Deskbook, with Gerald Schatz & Deborah Laufer (2000); Developments in Administrative Law 2000-2001 (ed. Lubbers, 2001). Gary J. Edles is a Fellow in Administrative Law and Adjunct Professor of Law at American University, Washington College of Law, where he teaches a course on the Federal Regulatory Process. He is also Visiting Professor at the University of Hull Law School, where he teaches American Public Law, and lectures on comparative British-American public law. He is licensed as a lawyer in the United States, and is a member of Gray's Inn (UK). He was General Counsel of the Administrative Conference of the United States (ACUS), the US government's expert advisory body on matters of administrative law and process, and served in senior positions at three independent, multi-member agencies. Professor Edles is co-author of two books: Edles & Nelson, Federal Regulatory Process: Agency Practices and Procedures (Second Edition, 1989), a book that has been cited by the US Supreme Court and the lower federal courts, and Berg, Klitzman & Edles, An Interpretive Guide to the Government in the Sunshine Act (Second Edition, 2005). He is also the author or co-author of more than a dozen articles. He is a past Chair of both the Administrative Law Section and General Counsels' Section of the Federal Bar Association, and a member of the Faculty Review Board of the Administrative Law Review.

Contenu

Preface xi 1. Introduction 1 2. How the Independent Agency Developed: The Search For Expertise 19 A. The Interstate Commerce Commission 19 1. Regulation in Britain 23 2. State Regulation in the United States 26 3. Place in the Executive Branch 31 B. The Federal Trade Commission 37 C. The Federal Power Commission 41 D. The National Labor Relations Board 43 E. Federal Reserve Board: Independence as Needed 49 F. Observations 56 3. Theories of Agency Independence 59 A. Theory of the Unitary Executive 59 B. Other Efforts to Centralize Executive Power 67 C. The Functionalist Response to the Unitary Executive Theory 71 D. Political Will and Independence 75 E. Presidential Directive Authority 80 F. Observations 84 4. The Modern Agency: Structure and Appointments 87 A. Historical Characteristics of Independence 87 1. Modern Definitions of Independence 88 2. Organizational Structure 93 B. Appointments 95 1. Principal and Inferior Officers of the United States 100 2. Changing Character of an Appointment 108 3. Free Enterprise Fund in the Lower Courts 109 4. Free Enterprise Fund in the Supreme Court 112 5. Recess Appointments 119 a. What Counts as a Recess? 120 b. What Counts as a Vacancy? 124 c. Legislative Efforts to Restrict the President's Recess Appointment Power 126 6. Concerns over Length of Appointment of United States Attorneys 128 7. "Packaging" Appointments 129 C. Observations 131 5. The Modern Agency: Removal Protection as an Indicator of Independence 133 A. Introduction 133 B. Early Congressional and Judicial Attacks on Removal by the President 135 C. The Historic Removal Trilogy: Myers, Humphrey's Executor, and Wiener 140 D. The Morrison "Twist" 143 E. Grounds for Removal 144 F. Procedures for Removal 151 G. End of Service 157 H. An International Twist on the Removal Issue 158 I. Observations 160 6. The Modern Agency: Other Indicia of Independence 163 A. Control of Agency Submissions to Congress 163 B. Control of Litigation 167 C. Independent Funding Authority 172 D. Freedom from Centralized Office of Information and Regulatory Affairs Review 176 1. The Evolution of Centralized Review 176 2. The Application of Centralized Regulatory Review Authority to the Independent Agencies 180 E. Selection of Agency Vice Chairs 191 F. Observations 192 7. Institutional Design: The Tension Between Autonomy and Accountability 195 A. Introduction 195 B. The Staying Power of Independent Regulatory Agencies 196 C. Unsuccessful Shift to the Single Member Option 199 1. Nuclear Regulatory Commission 199 2. Federal Energy Regulatory Commission 202 D. A Preference for the Single Member Option 205 1. Social Security Administration 205 2. Federal Housing Finance Agency 209 3. The Continuing Saga of the Consumer Financial Protection Bureau: Birth of the Idea 213 a. Freestanding Independent Agency 214 b. Elizabeth Warren, Czar 216 c. Interim Authority of the Treasury 217 d. Housed in the Federal Reserve 217 e. A Multimember Board? 218 f. A Director Is Nominated 220 g. Accountability and Independence 221 E. Successful Closures 222 1. Civil Aeronautics Board 222 2. Trucking Deregulation: Closing the Interstate Commerce Commission 223 F. Independent Oversight Agencies 224 G. Independent Agencies Squarely in the Executive Branch 226 H. Promoting Executive Branch Autonomy and Accountability to Congress 231 I. Split Enforcement Model 232 J. Divided Accountability: The Separation of Policy and Adversarial Functions Within Agencies 233 K. Shared Regulatory Space: An Assessment 236 L. Inspectors General 243 M. Observations 246 8. Further Along on the Continuum: Government Functions and Private Enterprise 249 A. Public Corporations 250 1. Historical Foundations 250 2. Organization of the …