It turns out that we don’t know which agencies are truly independent, for two reasons. First, the Supreme Court has never been clear in setting forth the constitutional basis for such structures. Second, presidents have rarely pressed the issue, instead respecting the independence of agencies — even where Congress wasn’t explicit in affording political insulation — that carry the trappings of independence, such as decision-making by a multi-member commission, set terms, and expertise requirements for appointees.
Biden is now pushing the envelope of the president’s management authority. The cosmic irony is that this is about the only Trump initiative the Biden administration hasn’t reversed. Biden’s conduct also resurrects the Bush-era debate over the “unitary executive,” which, contrary to progressive pearl-clutching, is all about chain of command, not the scope of executive power.
Last year, in a case called Seila Law v. CFPB, the Supreme Court rejected full independence for the Consumer Finance Protection Bureau. The constitutional issue was that the bureau was headed by a single director rather than a multi-member commission, giving too much power to a single official not directly accountable to the president. Instead of defending that structure, the Trump administration argued that the CFPB director should be subject to at-will removal — and the Supreme Court agreed.
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