It is essential for anyone involved in law, politics, and government, as well as students of the governmental process, to comprehend the workings of the federal independent regulatory agencies of the United States. Occasionally referred to as the "headless fourth branch of government," these agencies do not fit neatly within any of the three constitutional branches. Their members are appointed for terms that typically exceed those of the President, and they cannot be removed from office in the absence of some sort of malfeasance or misconduct. They wield enormous power over the private sector, and they have foreign analogues. In Independent Agencies in the United States, Marshall Breger and Gary Edles provide a full-length study of the structure and workings of federal independent regulatory agencies in the US. This book focuses on traditional multi-member agencies that have a significant impact on the American economy, such as the Securities and Exchange Commission, the Federal Communications Commission, the National Labor Relations Commission, and the Federal Trade Commission.
This work recognizes that the changing kaleidoscope of modern life has led Congress to create idiosyncratic administrative structures consisting of independent agencies squarely within the Executive Branch, including government corporations and government-sponsored enterprises, to establish a new construct of independence to meet the changing needs of the administrative state. In the process, Breger and Edles analyze the general conflict between political accountability and agency independence. This book also compares US with EU and certain UK independent agencies to offer a unique comparative perspective. Included is a first-of-its-kind appendix describing the powers and procedures of the more than 35 independent US federal agencies, with each supplemented by a selective bibliography of pertinent materials.
Marshall J. Breger is a Professor of Law at the Columbus School of Law, The Catholic University of America. He was a Senior Fellow at the Heritage Foundation specializing in labor, regulatory and trade policy (including NAFTA). During the George H.W. Bush Administration, he served as Solicitor of Labor, the chief lawyer of the Labor Department, and Chair of the Tripartite Advisory Panel on International Labor Standards (TAPILS). During 1992, by Presidential designation, he served concurrently as Acting Assistant Secretary for Labor Management Standards. He was Chairman of the Administrative Conference of the United States, an independent federal agency charged with developing improvements in the administrative process. Professor Breger is a contributing columnist to Moment magazine. Gary J. Edles is a Fellow in Administrative Law and Adjunct Professor of Law at American University, Washington College of Law, where he teaches a course on the Federal Regulatory Process. He is also Visiting Professor at the University of Hull Law School, where he teaches American Public Law, and lectures on comparative British-American public law. He is licensed as a lawyer in the United States, and is a member of Gray's Inn (UK).
Preface ; Chapter 1: Introduction ; Chapter 2: How the Independent Agency Developed: The Search For Expertise ; A. The Interstate Commerce Commission ; B. The Federal Trade Commission ; C. The Federal Power Commission ; D. The National Labor Relations Board ; E. Federal Reserve Board: Independence as Needed ; F. Observations ; Chapter 3: The Modern Agency: Appointments ; A. Historical Characteristics of Independence ; B. Appointments ; C. Observations ; Chapter 4: The Modern Agency: Removal Protection As An Indicator of Independence ; A. Early Congressional & Judicial Attacks on Removal by the President ; B. The Historic Removal Trilogy: Myers, Humphrey's Executor & Weiner ; C. The Morrison "Twist" ; D. Grounds for Removal ; E. Procedures for Removal ; F. End of Service ; G. An International Twist on the Removal Issue ; H. Observations ; Chapter 5: Other Indicia of Independence ; A. Control of Agency Submissions to Congress1 ; B. Control of Litigation ; C. Independent Funding Authority ; D. Selection of Agency Vice Chairmen ; E. Other Indicia of Independence ; F. Observations ; Chapter 6: Theories of Agency Independence ; A. Theory of the Unitary Executive ; B. Other Efforts to Centralize Effective Power ; C. The Functionalist Response to the Unitary Executive ; D. Political Will and Independence ; E. Presidential Directive Authority ; F. Observations ; Chapter 7: Internal Agency Operations ; A. Role of the Chairman ; B. Institutional Decisionmaking ; Chapter 8: Institutional Design: The Tension Between Autonomy and Accountability ; A. Introduction ; B. The Staying Power of Independent Regulatory Agencies ; C. The Evolution of Independent Agencies: The Need for Accountability and Centralized Authority ; D. The Application of Centralized Regulatory Review Authority to the Independent Agencies ; E. Divided Accountability: The Separation of Policy and Adversarial Functions within Agencies ; F. Split-Enforcement Model ; G. Shared Regulatory Space: An Assessment ; H. Unsuccessful Shift to the Single Member Option ; I. Successful Shift to the Single Member Option ; J. Independent Oversight Agencies ; K. Independent Agencies Squarely in the Executive Branch ; L. Promoting Executive Branch Autonomy and Accountability to Congress ; M. Inspector Generals ; N. Observations ; Chapter 9: Further Along on the Continuum: Government Function and Private Enterprise ; A. Public Corporations ; B. Government Constraints and Constitutional Obligations on Public Corporations ; C. Government Sponsored Enterprises ; D. Private Action by Federal Agencies ; E. Privatization ; F. Observations ; Chapter 10: The Independent Agency as an Institutional Art Form: Comparative Examples ; A. National Independent Entities: The United Kingdom ; B. The Council of Europe ; C. European Coal and Steel Community ; D. The Transition to a European Union ; E. The European Commission Today ; F. European Independent Agencies ; G. Other International Administration ; H. Observations ; Chapter 11- CONCLUSION: The Future of the Independent Agency ; A. The Changing Face of Independent Agencies ; B. Centralization Theory and the Pushback Against It ; C. Final Thoughts ; Appendix A: Multi-Member Boards and Commissions (With Selective Bibliographies) ; Appendix B: Comparing Independent Agencies ; Bibliography ; Index