Research note on:
- Peter L. Strauss, The Place of Agencies in Government: Separation of Powers and the Fourth Branch, 84 Colum.L.Rev. 573 (1984).
- Peter L. Strauss, On The Difficulties Of Generalization – PCAOB in The Footsteps Of Myers, Humphrey’s Executor, Morrison and Freytag, 32 Cardozo L. Rev. 2255 (2011)
- Peter L. Strauss, On Capturing the Possible Significance of Institutional Design and Ethos 61 Administrative L. Rev. 259 (Special Ed., 2009).
- Peter L. Strauss, Overseer or “The Decider” – The President in Administrative Law, 75 Geo. Wash. L. Rev. 695 (2007). (Richard D. Cudahy Prize Essay, 2008)
by Peter L. Strauss
Service as general counsel to a new American independent commission, the Nuclear Regulatory Commission, persuaded me that the practical difference between the America’s independent regulatory commissions, and cabinet and other so-called executive agencies, had been considerably overstated.
Although the commissioners’ tenure in office had more protection from presidential removal than high officials in those other agencies – “cause” would have to be asserted for their removal, although it was unclear how such an assertion could be challenged – this, and their collegial structure, were virtually the only identifiable difference. Commissioners were attentive to presidential communications when received; presidential offices sought their counsel, required their participation in the annual budget process, and controlled various amenities; the commission chairman, although protected in tenure as a commissioner, could be replaced as chair by the President whenever and for whatever reason he pleased. The Commission had important relationships with the White House (which included coordination of some sensitive national security matters) and in important ways depended on its good will and support. On returning to Columbia Law School, remembrance of these realities led me to question the ways in which the independent regulatory commissions were then conventionally viewed.
If they were not part of the government within the President’s ambit, where were they? How could their existence be reconciled with a Constitution that consigns all governmental execution of law to the President and the “departments” Congress created under his charge? Careful rereading of two decisions commonly associated with this problem persuaded me that one had been considerably overread, and that consequently the result but not the ostensible reasoning of the other could readily be sustained. Myers v. United States, 272 U.S. 52 (1926) needed to and did decide only that the Senate could not require its permission for the dismissal of an executive officer, and not that the President must hold an unconstrained right to remove any such officer. Consequently, Humphrey’s Executor v. United States 295 U.S. 602 (1935), did not have to deny, improbably, that the Federal Trade Commission was involved in executing the law, as selfevidently it (and every independent regulatory commission) was; the Court had only to find it constitutionally permissible to permit Congress to create officers whose presidential removal could be somewhat constrained.
Publication of the first of the essays mentioned above prompted a reexamination of the relationship of independent regulatory commissions to the presidency that has resulted, now, in clear Supreme Court recognition that independent regulatory commissions are in fact (as to reconcile them with our Constitution they must be) specialized elements of the executive branch. Free Enterprise Fund v. Public Company Accounting Oversight Board, 130 S. Ct 3138 (2010). The second of the essays mentioned explores these and other Supreme Court decisions involved in its recent consideration of issues involving congressional choices made in creating governmental structure, and its not infrequent explanatory confusions. The third essay considers how one might better reason from Congress’s choices about governmental structures – choices plainly left to Congress by a constitutional design that clearly anticipates the existence of a government but says virtually nothing about it, and confers on Congress the authority to enact any legislation “necessary and proper” to its exercises of legislative power.
Readers are probably aware that intense debates have been going on in the United States over the question of the extent of presidential authority to control decisions taken by executive branch actors – whether by cabinet departments or by independent commissions. For those governmental decisions relating to foreign relations and military affairs, it is clear enough that executive agencies act as the President’s alter ego, and obedience to his will is required. But is this true for what might be called the mediated presidency – the world of domestic agencies whose authority is constituted by statute, and can exist and be exercised only if subject to judicial controls for its legality? This is the subject of the fourth essay, in which I take the position that the President can safely (for our liberties) be regarded only as overseer, not as “the decider.” This is a position still very much in flux in the American legal literature, but as our Constitution speaks of the “duties” of these officials, and empowers the President only to seek their written opinion how they mean to exercise them, my conclusion is firmly held.
Readers interested in exploring the enormous variety in American federal governmental institutions might wish to consult two recent writings:
- David E. Lewis and Jennifer L. Selin, Sourcebook of United States Executive Agencies (2013), available at https://www.acus.gov/publication/sourcebook-united-states-executive-agencies
- Richard L. Revesz and Kirta Datla, “Deconstructing Independent Agencies (And Executive Agencies),” 98 Cornell L. Rev. 769 (2013).
Peter L. Strauss is Betts Professor of Law at Columbia Law School, teaching courses in Administrative Law, Legal Methods, and Legislation. He joined the faculty in 1971.