Are Agencies Explicitly Contemplated by the Constitution? [No. 86]

The Constitution does make reference to executive officers who are tasked with administering and enforcing the laws that Congress has passed. By extension, these officers would oversee agencies or departments. Professor Ilan Wurman examines whether modern administrative agencies overreach these boundaries envisioned by the Founders.

Ilan Wurman is a visiting assistant professor at the Sandra Day O'Connor College of Law at Arizona State University, where he teaches administrative law and constitutional law. He is the author of A Debt Against the Living: An Introduction to Originalism (Cambridge 2017).

As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speaker.

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[williamgregory]

Independent agencies are agencies that exist outside the federal executive departments (those headed by a Cabinet secretary) and the Executive Office of the President. In a narrower sense, the term refers only to those independent agencies that, while considered part of the executive branch, have regulatory or rulemaking authority and are insulated from presidential control, usually because the president's power to dismiss the agency head or a member is limited.

Established through separate statutes passed by the Congress, each respective statutory grant of authority defines the goals the agency must work towards, as well as what substantive areas, if any, over which it may have the power of rulemaking. These agency rules (or regulations), when in force, have the power of federal law.

There is a further distinction between independent executive agencies and independent regulatory agencies, which have been assigned rulemaking responsibilities or authorities by Congress.

The Paperwork Reduction Act of 1980 lists 19 enumerated "independent regulatory agencies", such as the Securities and Exchange Commission, the Federal Reserve, the Commodity Futures Trading Commission, the Federal Deposit Insurance Corporation, and the Consumer Financial Protection Bureau. Generally, the heads of independent regulatory agencies can only be removed for cause, but Cabinet members and heads of independent executive agencies, such as the head of the Environmental Protection Agency, serve "at the pleasure of the president" and can be removed without cause.