Volume 109
Issue 3
February '21

Presidential Review: The President’s Statutory Authority over Independent Agencies

Written By: Cass R. Sunstein & Adrian Vermeule

Abstract

Many presidents have been interested in asserting authority over in-dependent regulatory agencies such as the Federal Trade Commission, the Federal Communications Commission, the Nuclear Regulatory Commission, the Securities and Exchange Commission, and the Federal Reserve Board. The underlying debates raise large constitutional questions, above all about the meaning and justification of the idea of a “unitary exec-utive.” In the first instance, however, the President’s authority over inde-pendent agencies depends not on the Constitution but on a common statutory phrase, which allows the President to discharge the heads of such agencies for “inefficiency, neglect of duty, or malfeasance in office.” This phrase—the INM standard—is best understood to create a relationship of presidential review—and a particular remedy for legal delinquency flowing from that review. It allows the President to discharge members of independ-ent agencies not only for laziness and torpor (inefficiency) or for corruption (malfeasance) but also for neglect of their legal duties, which includes egre-giously erroneous decisions of policy, law, or fact, either repeatedly or on unusually important matters. Connecting this understanding to the Take Care Clause, we reject both a minimalist approach, which deprives the President of any kind of decisionmaking authority over policy made by inde-pendent agencies, and also a maximalist approach, which would treat the independent agencies as essentially identical to executive agencies in terms of presidential oversight authority. This approach has strong implications for how to understand the President’s supervisory authority over independ-ent agencies. It suggests that he has such authority insofar as he is attempt-ing to ensure against “neglect of duty,” but not if he is displacing their policymaking discretion. 

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