Executive vs independent agencies
1. Executive vs. Independent Agencies
Executive Agencies
Part of the Executive Branch and directly under the control of the President.
Heads of these agencies are typically appointed and removed at will by the President.
Example: Department of Justice (DOJ), Department of State, Department of Defense.
Their decisions reflect presidential policy direction.
Independent Regulatory Agencies
Created by Congress through statute to carry out functions independent of presidential influence.
Heads (often commissioners/boards) serve fixed terms and can only be removed for cause (not at will).
They often perform quasi-legislative (rulemaking) and quasi-judicial (adjudication) functions.
Example: Federal Trade Commission (FTC), Securities and Exchange Commission (SEC).
👉 The main constitutional tension: how much independence can Congress give agencies from presidential control without violating separation of powers?
2. Important Case Laws
(i) Humphrey’s Executor v. United States (1935)
Facts: President Roosevelt removed FTC Commissioner Humphrey because of policy disagreements, even though the FTC Act said commissioners could only be removed “for cause.”
Holding: Supreme Court upheld Humphrey’s estate’s claim — the President cannot remove independent agency officials at will if Congress has provided tenure protection.
Reasoning: FTC performs quasi-legislative and quasi-judicial functions, not purely executive functions. Therefore, Congress may insulate it from direct presidential control.
Significance: Established independent regulatory agencies’ autonomy.
(ii) Myers v. United States (1926)
Facts: President Wilson removed a postmaster without Senate approval, despite a law requiring Senate consent.
Holding: Supreme Court sided with the President — the President has exclusive removal power for purely executive officers.
Reasoning: The Constitution vests executive power in the President, so Congress cannot limit his removal authority over executive officers.
Significance: Shows the difference: executive agencies = President has strong removal power. This case contrasts sharply with Humphrey’s Executor.
(iii) Wiener v. United States (1958)
Facts: President Eisenhower removed a member of the War Claims Commission, even though the statute creating the Commission was silent on removal.
Holding: Court ruled the removal invalid. Members of the Commission could only be removed for cause, even if not explicitly stated, because the agency was meant to be independent.
Reasoning: The Commission performed quasi-judicial functions, so independence was essential.
Significance: Reinforces Humphrey’s Executor: functional role of agency (executive vs quasi-judicial) determines removal power.
(iv) Morrison v. Olson (1988)
Facts: The Ethics in Government Act allowed the appointment of an Independent Counsel, removable only by the Attorney General for good cause.
Issue: Did this limit on removal power violate separation of powers?
Holding: Court upheld the statute. Independent Counsel’s limited independence did not unduly interfere with the President’s constitutional duties.
Significance: Expanded Humphrey’s Executor, allowing some insulation of executive officials if it doesn’t impermissibly weaken the President’s authority.
(v) Free Enterprise Fund v. Public Company Accounting Oversight Board (2010)
Facts: PCAOB members (created under Sarbanes-Oxley Act) were insulated by two layers of for-cause removal protection (SEC could only remove for cause, and SEC commissioners themselves had for-cause protection).
Holding: This double insulation violated separation of powers.
Significance: Court struck down “double for-cause” removal but preserved PCAOB by making its members removable at will by SEC.
Takeaway: Independence is allowed, but too much insulation from presidential control is unconstitutional.
(vi) Seila Law LLC v. CFPB (2020)
Facts: The Consumer Financial Protection Bureau (CFPB) had a single director, removable only for cause.
Holding: Supreme Court held this structure unconstitutional. Unlike multi-member commissions (FTC, SEC), a single director wielding significant power cannot be insulated from presidential removal.
Significance: Reaffirmed presidential control over executive power, distinguishing between multi-member independent agencies (permissible) and single-director independent agencies (problematic).
(vii) Bowsher v. Synar (1986)
Facts: The Gramm-Rudman-Hollings Act gave the Comptroller General (removable by Congress) power to enforce budget cuts.
Holding: Unconstitutional — because the Comptroller General exercised executive power but was removable by Congress, not the President.
Significance: Congress cannot both create and control execution of the law — otherwise it violates separation of powers.
Relevance: Shows limits on independence — some powers must remain under presidential control.
3. Key Takeaways
Executive Agencies: Directly controlled by the President (e.g., DOJ, DHS). President can remove leaders at will (Myers).
Independent Agencies: Created by Congress, insulated from presidential control, perform quasi-legislative/judicial functions (Humphrey’s Executor, Wiener).
Balance Principle: Courts allow independence but prevent excessive insulation (Free Enterprise Fund, Seila Law).
Functional Analysis: If the agency acts like a court or legislature, independence is justified. If it executes laws, the President must retain control.
✅ So, the judicial framework is:
Myers → President controls executive officers.
Humphrey’s Executor & Wiener → Independent agencies may be insulated.
Morrison → Some independence is acceptable if not weakening the President too much.
Free Enterprise Fund & Seila Law → Too much or badly structured independence is unconstitutional.
Bowsher → Congress cannot control execution of laws via removal power.
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