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Charles KECKLER: Independent Agencies as Reverse Parliaments: A Reconciliation of Paradoxes

At times, European constitutional discourse contributes to American discussions about the administrative state and looks at the work of independent agencies and similar institutions. Offering an American point of view of this field inspired by European institutions is not only relevant to European constitutional discourse, but useful in addressing many of the issues Europe is expected to tackle in the future. This piece serves to start a conversation on the topic of independent regulatory agencies, and an argument for why they should be led by commissions, multipartisan in nature, but with a majority and chair in alignment with the current government.

The independent agency (in general) is the most significant alternative method of conducting executive activities in a government, standing in distinction to an “ordinary” hierarchy of agents reaching back to the chief executive. Unlike the chief executive elected by the people and thereby holding democratic legitimacy, an independent agency is generally led by officials who are appointed. Indeed, the independent agency generally has plural officials, not a singular head, and this plurality must now be considered a constitutional requirement (in America) under the Supreme Court’s ruling in Seila Law.[1] Moreover, it is commonly (although not universally) the case that the board, commission, or other plural leadership group is comprised of members from multiple political parties. Some members, notably, will share partisan affiliation with the chief executive in charge, and some will not; in certain circumstances, the agency may find itself for a time still in control of the opposition or deadlocked between the parties. Finally, it is common to speak more precisely of independent regulatory agencies, because this is most typical task assigned to the independent agency – that of crafting rules of general effect at a level nominally below that of legislation yet with the same legal force and often with even greater impact.

None of the elements of this suite of features is, I would argue, accidental – they cohere together in that the structure of the organizational model chosen matches its core intended quasi-legislative function. But the independent regulatory agency is an institution that arose outside of the letter of the Constitution, and sits uneasily within it. Its very name bespeaks its paradoxes. It is “independent,” but of whom? If it is of the Chief Executive, for whom then it is an agency? This presents a key problem of legitimacy, because it is the President who is elected and therefore any independence from the electorate – even at one remove – takes away the imprimatur of the people’s consent from the agency.  The election of the executive is tied to the people’s choice of a plan and agenda; but his or her plan (and thus their choice) is fatally compromised by the presence of an executive element outside presidential control. Presidentialists who support the unitary executive theory consider the division of authority created by independence flatly unconstitutional.[2] Under this theory, moreover, it seems particularly puzzling (and constitutionally dubious) that a newly-elected chief executive must govern through members of an opposition party the voters have just rejected, through semi-autonomous commissions led in part by political opponents, now purportedly his or her subordinates.[3] 

Perhaps less commented upon – simply because it has so long been acceded to – is the ambiguous functional role of the independent regulatory agency. From a practical point of view, the broad, consequential rules developed by any executive agency, backed by force of law, constitute the functional equivalent of legislation and therefore compete with (if not actually usurp) the role of a legislature.[4] The typical hierarchical rules-issuing executive agency, with its single head and single-party leadership is, in structural form quite distinct from the form almost universally expected of a legislature, which normally and normatively consists of a plural body representing different interests and viewpoints. The independent regulatory agency, for all its flaws, however, more closely resembles in design a ‘miniature legislature’. Once this is recognized as representing a valid if undertheorized intuition about the kind of institution best suited to make rules (rather than simply execute them), the constitutional tension created by housing quasi-legislative activity within the executive provides a key insight into how to reconceive and thus resolve several of the puzzles about the independent agency as an institutional form.

Especially since the New Deal, there has been a long struggle over the proper constitutional role for the legislative power exerted by the Executive Branch, and especially by the President. The debate over the independent agencies is an important part, but only a part, of an extended process of controversy and compromise, and attempts by our institutions to reconcile the demands on a modern national government for creative action and adaptation with a constitution that contemplated almost no legislative authority for the executive. In particular, it has been the role of the Supreme Court, as the arbiter between legislature and executive, to put some restraints on the tendency of Presidents to act in place of, in lieu of, or in even in spite of Congressional action which could accomplish the same aims. As Justice Jackson put it:

With all its defects, delays and inconveniences, men have discovered no technique for long preserving free government except that the Executive be under the law, and that the law be made by parliamentary deliberations. Such institutions may be destined to pass away. But it is the duty of the Court to be last, not first, to give them up.[5]

The independent agencies, although in effect making law within the Executive, at their best can preserve what Jackson thought essential to free government, aspects of parliamentary deliberation in their legislative rulemaking. Here, I briefly outline a normative theory that extends the analogy to parliamentary systems and suggests a single reform to the independent agency which can address the most salient concerns about being forced to use partisan opponents as agents, and about the discoordination of executive plans raised by advocates of the unitary executive.

An actual Westminster-style parliament successfully blends the legislative and executive functions, although not without tensions and complexities in the field of ‘fusion of powers’.[6] At the most basic level, this is accomplished by “the government” – that is to say, the executive power – coming into being and deriving its legitimate authority from its command of a working majority in the legislature. In Britain, for example, when a new majority takes legislative power in the House of Commons, select members of this majority take subsidiary Cabinet roles as principal officers at the heads of the executive departments, with one becoming Prime Minister or chief executive.[7] To state the obvious, this tight connection provides coordination between the executive and legislative policy agenda, and assures that the terms of office and partisan alignment of these two functions will match.

The Founding era naturally was familiar with parliamentary systems – more familiar, indeed, than with the system of separated and interlocking powers that they were creating.[8] For a variety of reasons, the constitutional convention ended up rejecting a parliamentary system (in the form of a president appointed by the congressional majority), although the question was a much closer one than is commonly understood.[9] But since that time, the growth of the administrative state has to some extent created a convergence at the functional level. For matters within the jurisdictions of the bipartisan, multimember independent agencies, quasi-legislative activities take place within the executive through what are structurally quasi-legislatures. These need a level of autonomy in their decisions, but ideally should be in general coordination with the President having legitimate constitutional authority over all executive branch officials, and with the policy program the electorate has empowered him or her to enact.

The British executive establishment and the Prime Minister in particular derives authority from the Parliament elected by the people. Under a similar rationale, but flowing in the opposite direction, the quasi-legislatures of the independent regulatory agencies can be perceived as deriving their authority from the President elected by the people. In effect, the ideal regulatory commission is a kind of “reverse parliament” – a legislature (albeit one with a delimited scope) which comes into being when an executive comes into power.[10] A key implication of this theoretical reconstruction of the independent commission is that, like the British Cabinet, it should reflect the democratic choices embodied in the elected institution from which it derives its authority, although that authority can remain distinct.

From this follows logically an acceptance of the most fundamental argument against opposition party members: that a President should not have to depend on the political opposition to carry out the activities within the Executive Branch. This does not imply a requirement that everyone other than a member of the President’s party should be purged from leadership of an independent agency. However, both the administrative capacity of the President and his constitutional ability to assure faithful execution reach a key inflection point when he or she commands a majority of the commission in question. Moreover, this alignment is what creates democratic legitimacy for the commission’s authority and autonomy, tying its exercise of governmental powers back to the choice of the electorate. Under the reverse parliament model, just as when in Britain a new parliamentary majority creates an executive, in the American administrative state a new executive should generate a new commission majority.

If this model were carried out, it would also address the key and most legitimate demand of presidentialists and unitary executive theorists, that a President have the facility to coordinate the activities he or she has been elected to lead, and be able to execute the program which was presumably the basis of that election. With a majority in place at or near the time the new President comes into office, it becomes possible for the President to effectively transmit his or her proposals to the relevant agencies with a reasonable expectation of them being considered and implemented in conjunction with the rest of the Executive Branch. He or she should not be compelled to wait for years for action based on the adventitious expiration of fixed terms or fortunate resignations. The presidential program would be subject to debate within the commissions, because they would maintain bipartisan membership, and would benefit from the expertise derived from continuity of members’ service, because only members sufficient to form a majority (usually just one) would need be replaced. But a proposal would not be dead on arrival due to overlapping officer terms that have little constitutional weight, and which only serve to exacerbate the constitutional tensions inherent in the independent agency system.

The most efficient way to put the reverse parliament theory into practice is to tie the terms of commission chairmen – but not commission members generally – to Presidential terms, or else make chairs (and only them) removable at will. For some agencies, courts may be able to judicially interpret provisions allowing Presidential selection of the chair to achieve this effect,[11] especially where the statute does not have explicit protection for agency leadership and the “independence” of the agency is based on judicial inference (usually derived from the presence of a bipartisan commission structure). Creating a new background norm of the relations between agencies and Presidents would alter what the Court has until now taken to be the implication from the organizational commission form, at least with regard to the chairs of commissions. The result would be that the judiciary would cease to assume any removal protection or independence for chairs, once a change in the partisan control of the executive branch occurs. The better solution, however, required in many circumstances and more appropriate in all, would be for Congress to pass a straightforward law that aligns the terms of office for commission chairman with the date of the presidential inauguration, putting in place a rule applicable across all the independent agencies.

Note that this does not change the presence or validity of the only-for-cause removal restriction, as such, for any independent agency director, including the chairs. Once appointed, chairs would possess protection, but their term and thus appointment are tied back to the presidential authority. Once their term expires, chairs could continue to serve until replaced (for continuity or to assist during periods of presidential transition). But they would enter into what is called “holdover” status, and become removable even if they had possessed removal protection while serving their term.[12] Knowing this, many chairs likely would resign, but if they refused to do so, they could be legally removed without demonstrating the removal need be one undertaken for cause. As a consequence, new Presidents could have the opportunity to select leadership at the time they are forming their government in general, and avoid the delays and policy asynchrony that should trouble advocates of a strong and responsible executive.

At the same time, this proposal, and the model from which it derives, conserves the core features of the independent agency as it has developed in American law, and permits it to continue as a second-best accommodation to the growth of the administrative state and executive legislation. Under this clarified, limited, and electorally responsive structure, achievable by only minor adjustments to the way most independent agencies are already structured and operate, the long controversy over removability of directors may begin to lessen, and the independent agency can attain a more secure footing in the constitutional order.

Charles N. W. Keckler is a graduate of Harvard College, where he was elected to Phi Beta Kappa and received his B.A. in Anthropology, magna cum laude. He went on to receive his M.A. in Anthropology, and his J.D., from the University of Michigan. He has served, during two presidential administrations, in several senior appointed positions in the U.S. Department of Health and Human Services, including Senior Advisor to the Secretary and Acting Deputy Secretary, and from 2017-2020, led the Department’s award-winning transformation initiative, ReImagine HHS. Between his periods at HHS, he was twice confirmed by the Senate as a minority party member of the Board of Directors of the Legal Services Corporation. His academic experience has included teaching courses in various disciplines at Harvard, the University of Michigan, the University of New Mexico, Northwestern, Pennsylvania State University, Washington & Lee, and George Mason University.

[1] See e.g. Seila Law LLC v. Consumer Financial Protection Bureau, 591 U. S. ____ (2020), 2. („leadership by a single individual […] violates the separation of powers.”)

[2] See, e.g., Steven G. Calabresi & Nicholas Terrell, The Fatally Flawed Theory of the Unbundled Executive, 93 Minn. L. Rev. 1696, 1697 (2009); Neomi Rao, Removal: Necessary and Sufficient for Presidential Control, 65 Ala. L. Rev. 1205, 1244 (2013).

[3] Ronald J., Krotoszynski Jr., Johnjerica Hodge, and Wesley W. Wintermyer,

Partisan Balance Requirements in the Age of New Formalism, 90 Notre Dame L. Rev. 940, 949-50 (2015). See also id. at 998 (“Although the Constitution contemplates a system of checks and balances in the federal government, mandatory partisan balance requirements clearly create significant tension with the unitary executive created in Article II, Section 1 of the Constitution.”). Cf. Charles N. W. Keckler, I’m Unconstitutional: Another Dubious Restriction on the Power to Remove, 20 Green Bag 2d 175, 178 (2017) (providing a justification for opposition-party members as an institutional source of alternative analysis).

[4] Stephanie P. Newbold & David H. Rosenbloom, Critical Reflections on Hamiltonian Perspectives on Rule-Making and Legislative Proposal Initiatives by the Chief Executive, 67 Public Admin. Rev. 1049, 1053 (2007).

[5] Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 655 (1952) (Jackson, J., concurring);

[6] See Matthew Flinders, Shifting the Balance? Parliament, the Executive and the British Constitution, 50 Political Studies, 23, 26 (2002) (discussing multiple approaches to the legislative-executive in Britain, all leading to a doctrine of parliamentary sovereignty).

[7] Members of the House of Lords can also join the executive as members of the government, and a number of sub-Cabinet officials (“junior ministers”) are also appointed from the majority and given executive responsibilities. These details and the additional nuances are not critical to the theoretical points developed here, however.

[8] F. H. Buckley, The Efficient Secret: How America Nearly Adopted a Parliamentary

System, and Why It Should Have Done So, 1 Brit. J. Am. Legal Stud. 349, 366 (2012).

[9] See id., at 80-83 (discussing how supporters of a parliamentary system compromised to accept the Electoral College).

[10] This remains only a quasi-legislature with its jurisdiction limited by the statutory delegation of authority by the real legislature, Congress, which loses none (or rather, no more) of its authority under this theory.

[11]See Kirti Datla & Richard L. Revesz, Deconstructing Independent Agencies (and Executive Agencies), 98 Cornell L. Rev. 769, 796 (2013) (“Chairs are typically seen as a presidential proxy because they usually hold their position as chair (but not as members of the agency) at the will of the President.”)

[12]See Swan v. Clinton, 100 F.3d 973 (D.C. Cir. 1996) (member of National Credit Union Administration was removable without cause after expiration of his statutory term, although still serving under provision that allowed holding office until replaced). There is not a Supreme Court precedent on this precise point, but the logic of Free Enterprise Fund would almost certainly uphold Swan and extend it. See Keckler, supra n. 2, at 178 n. 10.

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