An Empirical Analysis of the Establishment of Independent Agencies
From: The Regulatory Review
In our recent article, The Genesis of Independent Agencies, we ask a core question of administrative law: When are agencies established with features that insulate them from direct presidential control? The leading articles in the legal literature assert that Congress is more likely to establish independent agencies when government is divided—that is, when the U.S. House of Representatives, the U.S. Senate, or both are controlled by a different party than that of the President. Under these circumstances, the academic literature maintains, Congress is less willing to give the President fuller control of a new agency. Only a single political science study—one that suffers from design flaws and that has been misinterpreted in the legal literature—provides empirical evidence for the claim that divided government has an impact on the establishment of independent agencies.
On the policy front, our results support a broad assertion of presidential power related to unsettled issues of agency control. Academic debate continues over whether the President has the authority to require financial regulatory agencies, including the CFPB, to submit their significant regulations to the Office of Information and Regulatory Affairs for review. Policy disagreements between the President and the heads of agencies routinely arise, such as the decision by the Federal Energy Regulatory Commission, recently upheld by the D.C. Circuit, not to use the social cost of carbon metric to evaluate the harm of carbon dioxide emissions, despite an executive branch Interagency Working Group’s validating this approach.
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