The term "independent agencies" is often used (including in my Constitutional Law course) to describe agencies whose senior members have a form of statutory protection from removal by the President. (For example, the members of the Federal Trade Commission — as upheld by the Supreme Court in the increasingly famous case of Humphrey's Executor.) The assumption has been that because these officials can only be removed by the President for cause (defined fairly narrowly), as practical matter they can operate independently from presidential supervision. At the same time, and in considerable tension with the foregoing proposition, the Supreme Court has said (in particular in Morrison v. Olson) that the power to remove for good cause gives the President (or a subordinate such as the Attorney General) sufficient supervisory power so that the limit on removal does not substantially interfere with the Constitution's direction that the executive power shall be vested in the President.
These two propositions have never been compatible in theory. Either the President has material supervisory over the "independent agencies" — in which case they are not really independent — or else the President does not, in which case the agencies exercise material executive power that the President does not control, in violation of Article II, Section 1. The contradiction has not been exposed in practice, because in general Presidents have not asserted power to supervise and direct the agencies whose heads enjoy statutory limits on removal. It's not obvious why that should be so, however, because the mere fact that an agency head is not removable at will by the President does not mean that the President lacks power to supervise and direct that person.
This is all prefatory to President Trump's recent executive order asserting the power to direct the so-called independent agencies. It provides in material part:
… [A]ll executive departments and agencies, including so-called independent agencies, shall submit for review all proposed and final significant regulatory actions to the Office of Information and Regulatory Affairs (OIRA) within the Executive Office of the President before publication in the Federal Register. …
The Director of OMB shall establish performance standards and management objectives for independent agency heads, as appropriate and consistent with applicable law, and report periodically to the President on their performance and efficiency in attaining such standards and objectives. …
The Director of OMB shall, on an ongoing basis … review independent regulatory agencies’ obligations for consistency with the President’s policies and priorities…
… [I]ndependent regulatory agency chairmen shall regularly consult with and coordinate policies and priorities with the directors of OMB, the White House Domestic Policy Council, and the White House National Economic Council. …
None of this directly conflicts with, or assumes the unconstitutionality of, the statutory protections from removal. Indeed, one might make the case that, so long as the President has supervisory authority over the agencies, the Constitution does not require that the President have unlimited removal authority.
I assume, though, that the President will take the position that if agency heads do not follow the directions in the executive order, or if they adopt policies in conflict with those of the President or his subordinates, they can be removed for cause. That is, even for officers who have removal protection, the idea that they must therefore be "independent" — that is, not subject to supervision — is mistaken. To the contrary, they are protected from removal so long as — but only so long as — they follow presidential direction and supervision.
(Via John Hinderaker at Powerline.)
Posted at 6:15 AM