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The administrative state is truly the status quo for how our government has operated for the last century. A large portion of the power of the federal government is exercised through administrative agencies. Administrative law receives bipartisan support, and the volume of regulations enacted grows under the administrations of both parties. So, how does “who the President is” affect administrative agencies?
Executive branch agencies (such as the Department of Agriculture, Department of Education, Department of Energy, and many others) fall under the direct control of the President. The President chooses agency heads, who in turn work with the career staff in their agencies to implement policies in line with the President’s policy goals. The agencies, like the President, exercise executive power in the creation and promulgation of national policies. In effect, the President delegates power to agencies, and the agencies’ connection to the President gives them some degree of democratic accountability.
“The executive authority, with few exceptions, is to be vested in a single magistrate.”
― Hamilton, Federalist No. 69
In contrast, Independent Regulatory Commissions or IRCs (such as the Federal Communications Commission, Federal Deposit Insurance Commission, Federal Election Commission, and the Federal Trade Commission) are not subject to the direct control of the President, and instead, are headed by multi-member Commissions. Commissioners are a bipartisan commission appointed by the president, with a slight majority of the Commissioners being from the President’s party (for instance: the Federal Communications Commissioners were three Democrats and two Republicans under President Obama, and are three Republicans and two Democrats under President Trump). Some argue that the lack of connection between the President and these agencies raises Constitutional questions about the source of the power they exercise.
Videos in this unit explore these questions, and more.
Professor Sally Katzen explains the benefits of the Office of Information and Regulatory Affairs (OIRA) review for agencies. Executive agencies, who expect to be reviewed, gather large quantities of data and conduct careful analysis because they know
Professor Sally Katzen explains the benefits of the Office of Information and Regulatory Affairs (OIRA) review for agencies. Executive agencies, who expect to be reviewed, gather large quantities of data and conduct careful analysis because they know OIRA will request such preparation. Independent Regulatory Commissions (IRCs) are not currently subject to OIRA review. Although certain aspects of an IRC need to remain independent, Professor Katzen argues that proposed regulations could benefit from a more rigorous analysis offered by OIRA.
Professor Sally Katzen is the Co-Director of the Legislative and Regulatory Process Clinic at New York University School of Law.
As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speaker.
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