Types of agencies: executive and independent
Types of Agencies: Executive vs. Independent
1. Executive Agencies
Part of the Executive Branch.
Heads usually serve at the pleasure of the President, meaning the President can remove them at will.
Examples: Department of Justice (DOJ), Department of Defense (DOD), Environmental Protection Agency (EPA).
They are generally subject to strong presidential control.
2. Independent Agencies
Created by Congress to be insulated from direct presidential control.
Heads often serve fixed terms and can only be removed for cause (e.g., inefficiency, neglect of duty, or malfeasance).
Examples: Federal Trade Commission (FTC), Federal Communications Commission (FCC), Securities and Exchange Commission (SEC).
Designed to be more autonomous to reduce political influence over specialized regulatory functions.
Key Cases Illustrating Differences and Constitutional Issues
1. Humphrey’s Executor v. United States (1935)
Facts: President Roosevelt fired FTC Commissioner Humphrey before his term expired, but the FTC Act stated commissioners could only be removed for cause.
Issue: Can the President remove an independent agency commissioner at will?
Holding: The Court held the President cannot remove an FTC commissioner without cause, affirming the FTC’s independence.
Significance: This case established that independent agencies enjoy protection from removal except for cause, unlike executive agencies. It confirmed Congress’s power to create independent agencies insulated from presidential control.
2. Myers v. United States (1926)
Facts: The President removed a postmaster without Senate approval, which was challenged.
Issue: Whether the President has exclusive power to remove executive branch officials.
Holding: The Court held that the President has the exclusive power to remove executive officers appointed for purely executive duties.
Significance: This case contrasts with Humphrey’s Executor by upholding broad removal powers over executive officers, emphasizing presidential control over executive agencies.
3. Seila Law LLC v. Consumer Financial Protection Bureau (2020)
Facts: The CFPB was led by a single director who could only be removed by the President for cause.
Issue: Is the “for cause” removal protection for the CFPB director constitutional?
Holding: The Supreme Court ruled the removal restriction was unconstitutional, limiting the President’s removal powers only in multi-member independent agencies but not for single-director agencies with broad power.
Significance: This case limits the extent of insulation independent agencies can have, emphasizing the President’s control over executive officers, especially those with significant unilateral power.
4. Free Enterprise Fund v. Public Company Accounting Oversight Board (2010)
Facts: The PCAOB was an independent agency overseen by the SEC, and its members could only be removed for cause, and SEC commissioners themselves were only removable for cause.
Issue: Is the double for-cause removal protection (two layers) constitutional?
Holding: The Court struck down the dual for-cause removal protections as unconstitutional because it limited presidential control too much.
Significance: The case confirms limits on how far Congress can insulate independent agencies from presidential removal, reaffirming separation of powers principles.
5. Whitman v. American Trucking Associations (2001) — Revisited
While primarily a delegation case, it also involved an independent agency (EPA).
The Court allowed broad delegation to an independent agency, reinforcing that these agencies play a major regulatory role but remain subject to constitutional limits.
Summary of Agency Types & Key Legal Principles
| Feature | Executive Agencies | Independent Agencies |
|---|---|---|
| Appointment | President nominates + Senate confirms | Same as executive agencies |
| Removal | At President’s pleasure (unrestricted) | Only for cause (protected) |
| Control | Strong presidential control | Limited presidential control |
| Examples | DOJ, DOD, EPA (often classified as exec.) | FTC, FCC, SEC, CFPB |
| Case Law Emphasis | Myers (broad removal power) | Humphrey’s Executor (limited removal power) |
| Modern Limits | Seila Law (limits on single-director insulation) | Free Enterprise Fund (limits on dual-layer insulation) |
Why This Matters
Executive agencies reflect a unitary executive theory — the President controls the entire executive branch.
Independent agencies are designed to shield specialized regulatory bodies from political interference but must still operate within constitutional bounds.
The balance between independence and accountability is a continuing constitutional debate.
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