Departments, Commissions, Corporations and Who Really Controls Each One

Ask a simple question in Washington and watch the room go quiet: how many federal agencies are there? You will get a range, a footnote and a promise to follow up. The question sounds like arithmetic, and it is really a question about a constitution, because the answer depends on what you mean by "agency," and what you mean by "agency" depends on who controls the thing.

That is the subject of this column. The Founders gave us a simple design: Congress makes the laws, the President executes them, and the courts decide cases. What grew on top of it over two centuries is a set of institutions of different legal shapes. Some are run by a Secretary who can be fired by the President tomorrow. Some are run by commissioners who cannot be. Some are run by boards that call themselves corporations, and some belong to Congress. The shape decides whether the American people, who elect the President, have any means of directing the people who write the rules.

I am going to lay out the main shapes in a table, then explain each one, then say which designs serve accountability. The question that organizes everything is the one that Alexander Hamilton put to the country in Federalist 70: who is responsible?

Why There Is No Single Count

Start with the puzzle. The Administrative Procedure Act, in Section 551 of Title 5, defines an "agency" as each authority of the Government of the United States, whether or not it is within or subject to review by another agency, and then excludes Congress, the federal courts and a few other bodies. That definition is broad, and it counts a department and a small office inside a department, and a commission, as agencies. Other statutes define the word differently for their own purposes. The Freedom of Information Act, the Paperwork Reduction Act and the Congressional Review Act each draw the line in a slightly different place, and the White House's review of rules covers some bodies and leaves others out.

So there is no authoritative number. The Federal Register keeps a list of agencies, and the list runs to hundreds of entries because it counts both parent agencies and the components inside them. A reader who sees "over four hundred" should not conclude that there are that many independent centers of power. Many are offices inside a department. But a reader who looks at the question the other way, at how many separate bodies can issue binding rules, finds that the answer is not small, and that no one in government is responsible for knowing it. That is its own indictment. For the related question of how large the federal workforce really is, see The Federal Workforce Is Smaller Than You Think, and That Is the Problem, and for where the money and the contractors cluster, America's Richest Counties Ring the Capital, and That Is No Accident.

The Constitutional Starting Point

Article II, Section 1 begins with a sentence that has no qualifications: "The executive Power shall be vested in a President of the United States of America." Section 2 provides that the President "shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments." And Section 3 charges him to "take Care that the Laws be faithfully executed."

Notice three things. The executive power is vested in one person. The Constitution assumes "executive Departments," and it assumes the President may require the opinion of "the principal Officer in each." And it says nothing at all about commissions, boards or corporations. Every other shape in the table below is a creation of Congress, built on the assumption that Congress may establish offices by law and may set conditions on them. The central argument of the last century is about which conditions are consistent with the text.

The first Congress addressed the question in 1789. In the debate over creating a Department of Foreign Affairs, Congress considered whether the President could remove its head without the Senate's consent, and the legislation as passed was understood to recognize that he could. That episode, which scholars call the Decision of 1789, is the first constitutional precedent on removal, and James Madison was its leading voice. For the text itself and how it applies, see Eleven Questions About Presidential Power, Answered From Article II.

The Table

That table is simplified, and the details of each statute should be checked at the source. But the pattern is plain. As you move down the table, the President's control weakens, and the thing the President can still do, which is choose who sits in the seats, matters less and less.

Executive Departments: The Straight Line

An executive department is the design the Constitution contemplates. The Secretary is nominated by the President and confirmed by the Senate, serves at the President's pleasure, and answers to him. There are fifteen of them: Agriculture, Commerce, Defense, Education, Energy, Health and Human Services, Homeland Security, Housing and Urban Development, the Interior, Justice, Labor, State, Transportation, the Treasury and Veterans Affairs.

The line of accountability runs from the voter to the President to the Secretary to the bureau. If a bureau misbehaves, the voter knows whom to blame, and the President can act. This is the design Hamilton praised when he wrote in Federalist 70 that the ingredients which constitute safety in the republican sense are, first, "a due dependence on the people," and, secondly, "a due responsibility." It is also the design the Supreme Court defended in Myers v. United States (1926), holding that the President's power to remove executive officers is an incident of the executive power itself.

The department is the model. The rest of the table is a series of departures from it, and the useful question for each is what the departure buys and what it costs.

Independent Commissions: The Insulated Shape

The independent regulatory commission is the shape created for the railroads in 1887, and I tell its story in The Railroad Commission of 1887 That Became the Model for Every Federal Agency. A commission has several members, usually five. They serve fixed terms, so that no single President appoints all of them at once. Statutes frequently require that no more than a bare majority belong to one party. And, in the case of the Federal Trade Commission, the statute limits the President's power to remove a commissioner to specified grounds, including inefficiency, neglect of duty and malfeasance in office.

The Court upheld that arrangement in Humphrey's Executor v. United States (1935), reasoning that the FTC was a body that exercised "quasi-legislative" and "quasi-judicial" power, not purely executive power. The decision was a turning point for ninety years, and the later cases narrowed it. In Morrison v. Olson (1988) the Court upheld an independent counsel with limited removal protection. In Free Enterprise Fund v. PCAOB (2010) it struck down a second layer of removal protection for officers of an accounting oversight board, and in Seila Law LLC v. CFPB (2020) it held that the single director of the Consumer Financial Protection Bureau could not be protected from removal at will. Then, on June 29, 2026, in Trump v. Slaughter, the Court voted six to three to overrule Humphrey's Executor and held that the FTC's for-cause removal protection is unconstitutional because the FTC exercises executive power. How far that reasoning reaches to other commissions is a question for the statutes and the courts to work out, and the Court left open bodies such as the Federal Reserve. The case for treating this shape as a fourth branch is made, and answered, in Humphrey's Executor Created a Fourth Branch the Constitution Never Mentions.

The practical point for a citizen is this. A commission writes rules that bind you, enforces them and judges the cases, as discussed in Roscoe Pound Warned the Bar About Administrative Absolutism in 1938, and for most of the last century the elected President could not direct it. The party-balance rule does not change that. It guarantees that both parties are represented, which is the opposite of guaranteeing that the people are.

Government Corporations: The Hybrid

A government corporation is an entity that is owned by the federal government but organized like a business, and the category includes some of the most familiar institutions in the country.

The Postal Service was reorganized by the Postal Reorganization Act of 1970 as an independent establishment of the executive branch. It is governed by a Board of Governors, whose members are nominated by the President and confirmed by the Senate, and no more than five of the nine governors may belong to the same party. The governors may be removed only for cause, and they select the Postmaster General.

Amtrak, formally the National Railroad Passenger Corporation, was created by the Rail Passenger Service Act of 1970 and began operating in 1971. Its statute declares that it is not an agency of the federal government, but the Supreme Court, in Lebron v. National Railroad Passenger Corp. (1995), held that for purposes of the First Amendment it is part of the government, because the government created it to further governmental objectives and holds the power to appoint a majority of its directors. A label in the statute did not bind the Court.

The Tennessee Valley Authority was created in 1933 and is run by a board whose members are appointed by the President with Senate consent. Like the others, it is a creature of Congress with its own financing and its own mission.

These bodies are useful tools in some cases, and the structure gives them freedom from the ordinary budget process. But freedom from the budget process is also freedom from the discipline of it, and the question of who answers when the corporation fails is much harder to answer than in the case of a department.

The Legislative Branch Bodies

Finally, the table includes bodies that belong to Congress. The Government Accountability Office, created in 1921 as the General Accounting Office and renamed in 2004, is headed by the Comptroller General, who serves a fifteen-year term. The Congressional Budget Office was created by the Congressional Budget Act of 1974 to give Congress its own budget analysis. The Library of Congress houses the Congressional Research Service.

These bodies exist to give Congress its own information, and they are accountable to Congress. The Supreme Court held in Bowsher v. Synar (1986) that Congress may not give executive duties to an officer whom Congress can remove, because that would let Congress exercise executive power outside the process the Constitution prescribes. So the legislative branch bodies are properly limited to advice, audit and analysis. A reader should know the difference between a GAO report, which is Congress checking the executive, and an agency rule, which is the executive acting. See GAO's High-Risk List Has Named Some of the Same Programs Since 1990.

Which Designs Serve Accountability?

I have promised a verdict, and here it is. I will give the strongest objection first, as a good lawyer should.

The objection. Independence is a feature. Some functions, such as setting interest rates or deciding a contested case about a business's rights, should be insulated from the next election. If the President could fire commissioners at will, enforcement would be politicized. A party-balance rule and a fixed term protect the minority and ensure a measure of continuity. The Federal Reserve is the case everyone cites: monetary policy set by a President running for reelection would be a disaster.

That argument has weight, and the answer has four parts.

1. Insulation is a trade, and the price should be named. When Congress insulates a body, it takes power from the elected executive and gives it to officials who answer to no one. That may be wise for a central bank, where the Constitution gives Congress the power to coin money and regulate its value and the tradition of independence has a long history. It does not follow that it is wise for every regulator of every industry.
2. The more a body makes rules, the stronger the case against insulation. A body that adjudicates a dispute between two parties has a better claim to independence than a body that writes binding general rules for the whole economy. The latter is lawmaking, and lawmaking should answer to voters, through Congress or through the President.
3. Party balance is not accountability. It spreads seats among the parties' appointees. It does not make a commissioner answer to the voter. It also leaves the independents and the unaffiliated unrepresented, which is a strange way to protect a self-governing people.
4. The alternative is not politicization, it is responsibility. A President who can direct an agency can be blamed for what it does. That is the point. The Founders wanted a single executive precisely so that the people would know whom to hold to account. Hamilton's objection in Federalist 70 to a plural executive was that it "tends to conceal faults and destroy responsibility."

My verdict, then, is as follows. Departments serve accountability best. Commissions that adjudicate may reasonably be insulated, and a central bank has a special case. Commissions that write general rules, and agencies with single heads protected from removal, serve accountability worst. Government corporations vary, and their governance should be judged by whether a citizen can identify the official who answers for them. And legislative bodies are properly accountable to Congress and nothing else.

What a Citizen Can Check

You do not need a law degree to find out which shape governs an agency that affects you. Look up the agency's enabling statute and read how its head is chosen, how long the term is and what the removal rule says. Check whether the White House's regulatory review covers its rules. Find out whether the agency is inside a department or stands alone. A few minutes with the U.S. Code will tell you where the lines of accountability run, and where they do not. For the debate over how to restore the line, see Schedule F Is Really a Fight Over Who Answers to the Voters and The Acting Officials Who Run Agencies Without the Senate's Consent.

The Case in Brief

1. The Constitution vests the executive power in one President and assumes executive departments, but says nothing of commissions, corporations or boards, which Congress created by statute.
2. Because the legal shapes differ, no single authoritative count of agencies exists: the word "agency" is defined differently in different statutes, and many agencies are offices inside others.
3. Executive departments run in a straight line from voters to the President to the Secretary, while independent commissions, protected by fixed terms and removal limits, run largely outside it.
4. Government corporations such as the Postal Service, Amtrak and the TVA are hybrids, and legislative bodies such as GAO and CBO answer to Congress, not the President.
5. Accountability is best served where the President can direct the officials who write binding rules, with insulation reserved for adjudication and for special cases such as the central bank.

What you can do: pick one agency that affects your work or family, read its enabling statute in the Constitution page alongside the Article II text, and write to your representative asking who answers for it.