September 13, 2012

Keeping the Independent Agencies Independent

The proposed Independent Agency Regulatory Analysis Act, S. 3468, is a troubling idea. As Rena Steinzor explained here when the bill was introduced, it would authorize the President to bring independent agencies under the purview of OIRA.  This proposal is worrisome given the persistent flaws inherent in OIRA’s cost-benefit approach; extending the reach of a poorly functioning process is hard to justify.  But even more problematic is where S. 3468 treads:  the domain of independent agencies.  This development calls for thoughtful attention to the reasons for independence in the first place.

The fundamental difference between executive and independent agencies lies in the degree to which each is insulated from presidential control.  For example, executive agencies are typically headed by individuals who serve at the will of the President—but independent agencies are governed by multi-member commissions who are removable only for cause.  While executive heads are usually members of the President’s party and serve for indefinite terms, independent commissioners in most cases must come from both parties and have fixed terms that extend beyond a single administration. 

It is worth emphasizing that the choice whether to create an executive or independent agency lies with Congress.  By choosing an independent form, Congress puts in place a structure meant to insulate those agencies—at least somewhat—from political pressures.  How do independent agencies achieve this goal? There are many ways, but here I’ll mention those most salient to S. 3468.  First, by being shielded from the threat of removal, independent commissioners can make policies that might conflict with those of the White House but that are more consistent with those of Congress.  Second, independent agencies are meant to be experts in their regulatory field.  They typically have a narrower scope of responsibility than do executive agencies and can thereby focus their attention on developing specialized knowledge about their regulated industries.  Certainly, expertise does not provide a foolproof shield against politics—a point I and others have frequently made—but the possibility of providing at least some insulation is a goal well worth pursuing.

In addition, the multi-member structure of many independent agencies serves deliberative values; decisions are less likely to amplify short-term political views when groups comprised of different viewpoints must make ultimate decisions.  The bipartisan, multi-member mix also promotes long-term stability and helps insulate these agencies—again, at least more than executive agencies—from interest-group capture.

Even though independent agencies don’t function as perfectly as we might like, putting their rulemakings through OIRA review would undercut the ultimate goal of shielding them from politics.  As the President himself has acknowledged, OIRA review is the key means by which the President directs regulatory policy.  For Congress to suggest this type of review for agencies that Congress itself meant to protect from presidential policy is both illogical and short-sighted.

Independent agencies are not lacking for checks on their exercises of discretion.  Their mandates are frequently extraordinarily precise, both substantively and procedurally.  Further, independent agencies are subject to the requirements of the Administrative Procedure Act, and courts make no distinctions between agency types when reviewing exercises of expert discretion.  One of the only procedural distinctions between types of agencies, therefore, is that independent agencies do not undergo OIRA review.  To remove that distinction—a last bulwark against politics—would be to lose an important source of experimentation, comparison, and diversity in the regulatory process.


Emily Hammond, CPR Member Scholar; Professor of Law, Wake Forest University School of Law. Bio.

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