In the United States government, independent agencies are agencies that exist outside the federal executive departments (those headed by a Cabinet secretary) and the Executive Office of the President.[1]: 6  In a narrower sense, the term refers only to those independent agencies that, while considered part of the executive branch, have regulatory or rulemaking authority and are insulated from presidential control, usually because the president's power to dismiss the agency head or a member is limited.

Established through separate statutes passed by the Congress, each respective statutory grant of authority defines the goals the agency must work towards, as well as what substantive areas, if any, over which it may have the power of rulemaking. These agency rules (or regulations), when in force, have the power of federal law.[2]

Executive and regulatory agencies

Independent agencies exist outside the federal executive departments (those headed by a Cabinet secretary) and the Executive Office of the President.[1]: 6  There is a further distinction between independent executive agencies and independent regulatory agencies, which have been assigned rulemaking responsibilities or authorities by Congress. The Paperwork Reduction Act lists 19 enumerated "independent regulatory agencies", such as the Securities and Exchange Commission, the Federal Reserve, the Commodity Futures Trading Commission, the Federal Deposit Insurance Corporation, and the Consumer Financial Protection Bureau. Generally, the heads of independent regulatory agencies can only be removed for cause, but Cabinet members and heads of independent executive agencies, such as the head of the Environmental Protection Agency, serve "at the pleasure of the president" and can be removed without cause.[3]

The degree to which the President has the power to use executive orders to set policy for independent executive agencies is disputed.[4] Many orders specifically exempt independent agencies, but some do not.[5] Executive Order 12866 has been a particular matter of controversy; it requires cost-benefit analysis for certain regulatory actions.[3][6][7]

In a narrower sense, the term independent agency refers only to these independent regulatory agencies that, while considered part of the executive branch, have rulemaking authority and are insulated from presidential control, usually because the president's power to dismiss the agency head or a member is limited.

Structure of regulatory agencies

Independent agencies can be distinguished from the federal executive departments and other executive agencies by their structural and functional characteristics.[8] Their officers can be protected from removal by the president, they can be controlled by a board that cannot be appointed all at once, and the board can be required to be bipartisan.

Presidential attempts to remove independent agency officials have generated most of the important Supreme Court legal opinions in this area.[9] In 1935, the Supreme Court in the case of Humphrey's Executor v. United States decided that although the president had the power to remove officials from agencies that were "an arm or an eye of the executive", it upheld statutory limitations on the president's power to remove officers of administrative bodies that performed quasi-legislative or quasi-judicial functions, such as the Federal Trade Commission.[1]: 142  Presidents normally do have the authority to remove regular executive agency heads at will, but they must meet the statutory requirements for removal of commissioners of independent agencies, such as demonstrating incapacity, neglect of duty, malfeasance, or other good cause.[10]

While most executive agencies have a single director, administrator, or secretary appointed by the president of the United States, independent agencies (in the narrower sense of being outside presidential control) almost always have a commission, board, or similar collegial body consisting of five to seven members who share power over the agency.[8] (This is why many independent agencies include the word "Commission" or "Board" in their name.) The president appoints the commissioners or board members, subject to Senate confirmation, but they often serve terms that are staggered and longer than a four-year presidential term,[9] meaning that most presidents will not have the opportunity to appoint all the commissioners of a given independent agency. In addition, most independent agencies have a statutory requirement of bipartisan membership on the commission, so the president cannot simply fill vacancies with members of his own political party.[9] The president can normally designate which commissioner will serve as the chairperson.[9]

Congress can designate certain agencies explicitly as "independent" in the governing statute, but the functional differences have more legal significance.[11] In reality, the high turnover rate among these commissioners or board members means that most presidents have the opportunity to fill enough vacancies to constitute a voting majority on each independent agency commission within the first two years of the first term as president.[12] In some famous instances, presidents have found the independent agencies more loyal and in lockstep with the president's wishes and policy objectives than some dissenters among the executive agency political appointments.[13]

Although Congress can pass statutes limiting the circumstances under which the president can remove commissioners of independent agencies,[14] if the independent agency exercises any executive powers like enforcement, and most of them do, Congress cannot reserve removal power over executive officers to itself.[15] Constitutionally, Congress can only remove officers through impeachment proceedings. Members of Congress cannot serve as commissioners on independent agencies that have executive powers,[16] nor can Congress itself appoint the commissioners – the Appointments Clause of the Constitution vests that power in the president.[17] The Senate does participate, however, in appointments through "advice and consent", which occurs through confirmation hearings and votes on the president's nominees.

Examples of independent agencies

These agencies are not represented in the cabinet and are not part of the Executive Office of the president:[18]

The headquarters of the Federal Reserve System
A USPS truck in the snow

Former agencies

Agencies outside of executive branch

Although not officially part of the executive branch, these agencies are required by federal statute to release certain information about their programs and activities into the Federal Register, the daily journal of government activities:

Proposed independent agencies

See also


  1. ^ a b c Breger, Marshall J.; Edles, Gary J. (2015). Independent Agencies in the United States: Law, Structure, and Politics. Oxford: Oxford University Press. ISBN 9780199812127.
  2. ^ Copland, James (2020). The Unelected: How an Unaccountable Elite is Governing America. Encounter. p. 304. ISBN 978-1641771207.
  3. ^ a b Copeland CW. (2013). Economic Analysis and Independent Regulatory Agencies. Administrative Conference of the United States. See more at Benefit-Cost Analysis at Independent Regulatory Agencies.
  4. ^ Dan Bosch (May 29, 2020). "The Administration's View of Its Ability to Direct Independent Agencies".
  5. ^ Cass R. Sunstein; Adrian Vermeul (2021). "Presidential Review: The President's Statutory Authority over Independent Agencies" (PDF). Georgetown Law Journal. 109: 637–664.
  6. ^ Clark Nardinelli; Susan E. Dudley (February 3, 2021). "Extending Executive Order 12866 to Independent Regulatory Agencies".
  7. ^ "Independent Regulatory Agency". Glossary of Regulatory Jargon. The Regulatory Group. 2002.
  8. ^ a b Pierce, Richard; Shapiro, Sidney A.; Verkuil, Paul (5th ed. 2009), Administrative Law and Process, Section 4.4.1b, p. 101, Foundation Press. ISBN 1-59941-425-2.
  9. ^ a b c d Pierce, Shapiro, & Verkuil (2009) p. 102.
  10. ^ See, e.g., Humphrey's Executor v. United States, 295 U.S. 602 (1935).
  11. ^ Shane, Peter, Merrill, Richard; Mashaw, Jerry (2003), Administrative Law: The American Public Law Process pp.228-29, Thomson-West: ISBN 978-0-314-14425-6 "Mashaw, Merrill and Shane's Administrative Law, the American Public Law System, Cases and Materials, 6th". Archived from the original on July 16, 2012. Retrieved February 1, 2009.
  12. ^ Shane, Merrill, Mashaw (2003) p. 230; Pierce, Shapiro, & Verkuil (2009) p. 102.
  13. ^ Shane, Merrill, Mashaw (2003) p. 231.
  14. ^ Humphrey's Executor v. United States 295 U.S. 602 (1935)
  15. ^ See Bowsher v. Synar, 478 U.S. 714 (1986), Buckley v. Valeo, 424 U.S. 1 (1976)
  16. ^ Buckley v. Valeo, 424 U.S. 1 (1976)
  17. ^ See Myers v. United States, 272 U.S. 52 (1926); Buckley v. Valeo, 424 U.S. 1 (1976)
  18. ^ "Branches of the U.S. Government". Retrieved November 23, 2020.
  19. ^ Federal Maritime Commission
  20. ^ See "About the NTSB".
  21. ^ 49 U.S.C. § 1131
  22. ^ "Farewell ERDA, Hello Energy Department".
  23. ^ [ Richard H. Stallings Biography, Idaho State University Library]
  24. ^ "America Needs a Federal Elections Agency". New America. Retrieved December 16, 2022.
  25. ^ "S.1234 (2019)". Congress. Retrieved June 1, 2023.