The Virtues and Necessity of Independent Agencies
In the month and a half since President Trump took office for his second term, he has created chaos in the government by illegally attempting to fire a number of officials. This includes Gwynne Wilcox, a Member of the National Labor Relations Board; Cathy Harris, the chair of the Merit Systems Protection Board; and Susan Grundmann, the chair of the Federal Labor Relations Authority. He has also issued an executive order attempting to increase his executive power over these and other long-standing independent agencies.
While many people have never heard of these agencies, they are incredibly important. The National Labor Relations Board (NLRB) and the Federal Labor Relations Authority (FLRA) protect private and public employees from unfair labor practices and safeguard their right to organize. For example, the NLRB protected Amazon warehouse workers when Amazon unlawfully retaliated against workers who supported the union. The Merit Systems Protection Board (MSPB) guarantees a competent, honest, and productive federal workforce by ensuring that hiring and personnel management practices are based on merit and competence. The Federal Reserve Board regulates private banking institutions, contains systemic risk in markets, and provides financial services to the public as well as private and public institutions. The Consumer Products Safety Commission (CPSC) helps ensure that everyday items like your child’s car seat or your toilet cleaner meet safety standards. And the Nuclear Regulatory Commission protects the public and environment from the hazards of nuclear materials while working to promote the nation’s security at the same time.
And Congress carefully structured these agencies to ensure that they would have the expertise, stability, and insulation from day-to-day politics necessary to perform their important functions on behalf of everyday Americans.
For example, most independent agencies, including the NLRB, MSPB, and FLRA, are headed by multiple members. This structure prevents the concentration of power and ensures that when contentious issues arise, multiple perspectives are brought to bear before decisions are reached. Furthermore, the members leading these governing bodies are typically experts in the subject matter. By having multiple members heading these agencies, a range of experts can use their combined knowledge to reach careful and informed decisions. These agencies allow expert consideration of issues that neither Congress nor the President has the time or knowledge to adequately address.
The multimember composition of the leadership of most independent agencies also allows for bipartisan balance. Indeed, the laws creating these agencies often require representation from both parties. The law establishing the CPSC, for example, provides that “[n]ot more than three of the Commissioners shall be affiliated with the same political party.” By reducing the political influence of a single party and forcing bipartisan deliberation, decisions are more likely to be balanced and based on the public interest rather than partisan politics.
Bipartisan balance requirements also encourage stability and continuity in the government and its policies. By limiting the level of influence a single party can have, the short-term interests of those in power are less able to cause extreme swings in policy and administration. Financial regulation, for example, is an area in which Congress was particularly concerned about promoting stability; after all, predictability in financial regulations helps foster a healthy economy. Therefore, in that area and others, independent agencies were explicitly designed to mitigate the influence of short-term political changes on long-term public interests.
On top of that, in most independent agencies, Congress set a specified number of years a member may serve in their role and provided (either explicitly or implicitly) protection over their position during that term. This means that these officials do not simply serve at the pleasure of the President, but may only be removed “for cause,” often defined as “inefficiency, neglect of duty, or malfeasance in office.”
Like bipartisan balance requirements, fixed terms prevent complete upheaval when a new administration moves into the White House. These terms, usually staggered and extending beyond the four-year period a President serves, help place agencies outside the immediate sphere of politics, ensuring consistency, stability, and independence in their work—while still allowing the President some control through the appointments he does make. Furthermore, like the multimember structure, fixed terms help ensure expertise in agencies by allowing members to continue to develop their knowledge while serving at the agency. And when these terms are staggered, senior members can pass on their wisdom to new appointees.
For-cause removal protections similarly encourage stability and consistency. For example, concerned about the dangers of flip-flopping policy in key areas like financial regulation, Congress has prevented new Presidents from completely reshaping leadership at agencies like the Federal Reserve. Rather than making decisions based on the constant threat of political retaliation, these bodies can instead center their work around subject matter expertise, careful and balanced deliberation, and the public welfare. Agencies are able to make hard choices based on long-term interests without being concerned with political backlash. For example, the Federal Reserve can make the call to raise interest rates to quell inflation in the long-term, even if such a move is politically unpopular in the immediate future.
And while these features give agencies some independence, they are structured in a way that ensures the political branches still maintain some control. For one, the President has the power to appoint members, so she may select appointees that reflect her policy positions. The President also typically has the power to select the chair of the agency, furthering a certain level of responsiveness to the political will of the executive. The agency budgets are another example of this oversight: though it varies by agency, either the President, Congress, or both generally have budgetary control over these institutions, allowing significant influence over their work. These factors allow a balance to be struck between independence and responsiveness to the elected branches of government. As scholars Lisa S. Bressman and Robert B. Thompson have put it: “Even if an independent agency is not under the thumb of the President, it might still feel the hand of the President.”
Ultimately, independent agencies represent a deliberate choice by Congress about how certain agencies can best do their work on behalf of the American people. While the Trump administration may want to expand executive control in every corner of the government, nothing in the Constitution gives the President that absolute power, as CAC has explained in brief after brief. And that is for the benefit of everyday Americans.