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Executive Agencies Independent of the Executive

On 2 March, 2020, The New York Times ran an opinion piece by Jane Manners and Lev Menand that argued in favor of protecting the “independence” of the Consumer Financial Protection Bureau (CFPB) and other so-called “independent’ executive agencies.  The context was a case before the Supreme Court intended to determine whether or not the President has the authority to (among other things) fire the directors of such agencies (and whether, in fact, such “independence” is actually consistent with the Constitution).  More broadly, Manners and Menand argued that such agencies should be allowed to operate truly independently — meaning largely beyond the control of the titular Executive (that is, the President) — precisely because they fear the intrusion of politics into the policy-making functions of such agencies.

But it is worth asking: do we really want agencies that both make and enforce rules everyone must live with to operate outside the bounds and authority of the political leaders we elect to represent our interests?  In the last few months, we’ve heard a lot of talk about the need for “accountability” among the branches of government.  How does such “independence” from any political authority promote accountability?

And, as a matter of Constitutional intent, does it not seem like giving such quasi-legislative agencies executive authority (i.e. the authority to enforce rules) — but without allowing actual oversight and control of those agencies by the Executive — amount to an effective back-door transfer of executive authority from the Executive to the Legislature?

I wrote this to The NYT as a letter in response to their opinion piece.  Neither it, nor any other response that I saw, was published.

3 March 2020

To the Editor:

Jane Manners and Lev Menand argue (“Will the Supreme Court Protect Independent Agencies From Trump’s Reach?“, 2 March 2020) that independent agencies, like the CFPB, should remain largely independent of the President.  Their fear appears to be that he (meaning, really, Trump personally) might interfere with such agencies’ policies and priorities.

Here’s a proposal: If you want agencies that set policy and priority to be independent of the Executive, don’t make them part of the executive branch!

The issue with such agencies is really that their missions are split: they are as much legislative as they are executive.  Congress, in its wisdom (or recklessness), has delegated some large measure of its legislative authority, the authority to create the rules by which we live, to such agencies; but they have also tasked those same agencies with enforcing the rules that they, themselves, concoct.

Does that not violate the spirit, if not the actual text, of the Constitutional separation of powers?  Would it not make more sense for the Congress, instead, to create separate legislative and executive agencies: legislative agencies, to perform rule-making functions, under the purview of the Legislative branch; and executive agencies, to implement and enforce those rules, under the purview (and the authority) of the Executive?

And would that not largely solve the problem that Manners and Menand find so threatening?


[Update, 5/6/2020]

Upon reflection, it occurs to me that I didn’t extend my critique of such “executive” agencies quite far enough.

Yes, there is a problem in the blurring of the lines between legislative and executive authority when the same people both write the rules and enforce them.  But, in many cases — think, for example, of what happens when you violate some rule laid down by the NLRB or the FCC or the SEC or the IRS or, indeed, by the CFPB, itself, the original subject of Manners’ and Menand’s critique — these agencies not only write the rules and enforce them but, also, adjudicate disputes over the meaning and application of those rules, through special ‘Administrative’ courts administered by those agencies and outside the scope of the normal Judiciary processes.

Where are the checks and balances — and the accountability — in that arrangement?

© Copyright 2020, Augustus P. Lowell

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