Independent agencies of the United States government
Independent agencies of the United States federal government are those agencies that exist outside of the federal executive departments (those headed by a Cabinet secretary). More specifically, the term is used to describe agencies that, while constitutionally part of the executive branch, are independent of 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), while in force, have the power of federal law.
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[edit] Functional characteristics
Independent agencies can be distinguished from the federal executive departments and other executive agencies by their structural and functional characteristics.[1] Congress can also designate certain agencies explicitly as "independent" in the governing statute, but the functional differences have more legal significance.[2]
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.[1] (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 with staggered terms, and often for longer terms than a usual four-year Presidential term,[3] meaning most Presidents will not have the opportunity to appoint all the commissioners of a given independent agency. Normally the President can designate which Commissioner will serve as the Chairperson.[3] Normally there are statutory provisions limiting the President's authority to remove commissioners, typically for incapacity, neglect of duty, malfeasance, or other good cause.[4] 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.[3]
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.[5] 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.[6] Presidential attempts to remove independent agency officials have generated most of the important Supreme Court legal opinions in this area.[3] Presidents normally do have the authority to remove heads of independent agencies, but they must meet the statutory requirements for removal, such as demonstrating that the individual has committed malfeasance. In contrast, the President can remove regular executive agency heads at will.
If the independent agency exercises any executive powers like enforcement, and most of them do, Congress cannot participate in the regular removal process of commissioners.[7] Constitutionally, Congress can only participate directly in impeachment proceedings. Congress can, however, pass statutes limiting the circumstances under which the President can remove commissioners of independent agencies.[8] Members of Congress cannot serve as commissioners on independent agencies that have executive powers,[9] nor can Congress itself appoint the commissioners - the Appointments Clause of the Constitution vests that power in the President.[10] The Senate does participate, however, in appointments through "advice and consent", which occurs through confirmation hearings and votes on the President's nominees.
[edit] Examples
- The Commodity Futures Trading Commission (CFTC) regulates commodity futures and option markets in the United States. The agency protects market participants against manipulation, abusive trade practices and fraud. Through effective oversight and regulation, the CFTC enables the markets to serve better their important functions in the nation's economy providing a mechanism for price discovery and a means of offsetting price risk.
- The Federal Election Commission (FEC) oversees campaign financing for all federal elections. The Commission oversees election rules as well as reporting of campaign contributions by the candidates.
- The Federal Communications Commission (FCC) is charged with regulating interstate and international communications by radio, television, wire, satellite, and cable. It licenses radio and television broadcast stations, assigns radio frequencies, and enforces regulations designed to ensure that cable rates are reasonable. The FCC regulates common carriers, such as telephone and telegraph companies, as well as wireless telecommunications service providers.
- The Federal Maritime Commission (FMC) regulates the international ocean transportation of the United States. It is charged with ensuring a competitive, efficient, and economic ocean transportation system.[11]
- The Federal Trade Commission (FTC) enforces federal antitrust and consumer protection laws by investigating complaints against individual companies initiated by consumers, businesses, congressional inquiries, or reports in the media. The commission seeks to ensure that the nation's markets function competitively by eliminating unfair or deceptive practices.
- The National Labor Relations Board (NLRB) administers the principal United States labor law, the National Labor Relations Act. The board is vested with the power to prevent or remedy unfair labor practices and to safeguard employees' rights to organize and determine through elections whether to have a union as their bargaining representative.
- The National Transportation Safety Board (NTSB) investigates all aviation accidents in the United States, and certain major railroad and other accidents.[12]
- The Securities and Exchange Commission (SEC) was established to protect investors who buy stocks and bonds. Federal laws require companies that plan to raise money by selling their own securities to file reports about their operations with the SEC, so that investors have access to all material information. The commission has powers to prevent or punish fraud in the sale of securities and is authorized to regulate stock exchanges.
- The United States International Trade Commission (USITC) provides trade expertise to both the legislative and executive branches of government, determines the impact of imports on U.S. industries, and directs actions against certain unfair trade practices, such as patent, trademark, and copyright infringement.
- An independent Postal Regulatory Commission, created in 1971 as the Postal Rate Commission and strengthened under the Postal Accountability and Enhancement Act enacted in December 2006, provides regulatory oversight over the activities of the United States Postal Service.
- The Federal Retirement Thrift Investment Board is one of the smaller Executive Branch agencies, with just over 100 employees. It was established to administer the Thrift Savings Plan (TSP), which provides Federal employees the opportunity to save for additional retirement security. The Thrift Savings Plan is a tax-deferred defined contribution plan similar to a private sector 401(k) plan.
- The Federal Energy Regulatory Commission (FERC) is the United States federal agency with jurisdiction over interstate electricity sales, wholesale electric rates, hydroelectric licensing, natural gas pricing, and oil pipeline rates. FERC also reviews and authorizes liquefied natural gas (LNG) terminals, interstate natural gas pipelines and non-federal hydropower projects.
- The Social Security Administration (SSA) is the United States federal agency that administers Social Security, a social insurance program consisting of retirement, disability, and survivors' benefits. To qualify for these benefits, most American workers pay Social Security taxes on their earnings; future benefits are based on the employees' contributions.
- Other independent regulatory agencies include: the National Credit Union Administration, the Consumer Product Safety Commission, and the Bureau of Consumer Financial Protection (formally part of the Federal Reserve Board), and the Federal Reserve System itself.
[edit] Former agencies
- The Interstate Commerce Commission regulated common carriers and was thus able to render far reaching orders, such as the desegregation of public transportation. After trucking and railroads were largely deregulated, the ICC was eventually replaced with the Surface Transportation Board, within the Department of Transportation.
- The United States Maritime Commission was intended to formulate a merchant shipbuilding program to design and build five hundred modern merchant cargo ships for the U.S. Merchant Marine. It also formed the United States Maritime Service. In 1950, its functions were transferred to the United States Maritime Administration within the Department of Transportation.
[edit] Footnotes
- ^ 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
- ^ 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 [1]
- ^ a b c d Pierce, Shapiro, & Verkuil (2009) p. 102.
- ^ See, e.g., Humphrey's Executor v. United States, 295 U.S. 602 (1935).
- ^ Shane, Merrill, Mashaw (2003) p. 230; Pierce, Shapiro, & Verkuil (2009) p. 102.
- ^ Shane, Merrill, Mashaw (2003) p. 231.
- ^ See Bowsher v. Synar, 478 U.S. 714 (1986), Buckley v. Valeo, 424 U.S. 1 (1976)
- ^ Humphrey's Executor v. United States 295 U.S. 602 (1935)
- ^ Buckley v. Valeo, 424 U.S. 1 (1976)
- ^ See Myers v. United States, 272 U.S. 52 (1926); Buckley v. Valeo, 424 U.S. 1 (1976)
- ^ Federal Maritime Commission
- ^ See "About the NTSB". http://www.ntsb.gov/about/index.html.
