Debate Desk
Should Independent Agencies Be Shielded From Presidential Control?
Article II vests the executive power in the President; Humphrey's Executor of 1935 carved out an exception that critics say created a fourth branch.
The claim
Supporters say that commissions such as the Federal Trade Commission and the Federal Reserve should be independent of the president so that they can make expert decisions free from politics, and that firing their members at will would put regulators at the mercy of presidents.
The answer in three points
- Article II vests the executive power in a President. Officials who carry out the law act on his behalf, and he is accountable to the voters for what they do. When an agency exercises executive power and the president cannot remove its leaders, no elected official answers for it.
- Humphrey's Executor v. United States (1935) held that Congress could protect the members of the Federal Trade Commission from removal, on the theory that the commission was a quasi-legislative and quasi-judicial body. The Court has since narrowed that reasoning, and in Seila Law v. CFPB (2020) it held that the single-director structure of the Consumer Financial Protection Bureau violated the separation of powers.
- Expertise and accountability can be combined. The president can appoint qualified commissioners with Senate confirmation and remove them for cause, and Congress can set standards in law. Central banking is often treated as a special case because of its history, and many scholars distinguish it from ordinary regulatory agencies.
When a power is exercised in the name of the people, someone the people can remove should be answerable for it. That is the plain logic of Article II.
The numbers
- Humphrey's Executor v. United States was decided by the Supreme Court in 1935, according to the Court's records.
- Seila Law LLC v. Consumer Financial Protection Bureau was decided in 2020 by a vote of 5 to 4, holding that the CFPB director's removal protection was unconstitutional.
- Article II, Section 1 of the Constitution provides that the executive power shall be vested in a President of the United States of America.
What they will say next
"Politics will corrupt regulators." The president answers to voters, and regulators who answer to no one are a risk of another kind.
"The Federal Reserve needs independence." Many argue so, and it is distinguished by history and function. That argument is separate from the debate over the others.
"Congress created these agencies." It can design them, and it cannot take away the president's constitutional powers.
"Presidents may abuse this." They can be checked by Congress, courts and voters, and the president has a duty to execute the laws faithfully.
Power that no one can be held accountable for is power that should worry us.
"Congress wants these agencies to be neutral referees." It can create boards with mixed membership and staggered terms, and a president may still remove members for neglect or malfeasance. The question is whether the Constitution permits more protection than that for officers who wield executive power.