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). In a more narrow sense, the term may also be 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), when in force, have the power of federal law.

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.

Regulatory agencies

There is a further distinction between an independent agency and an independent regulatory agency. The Paperwork Reduction Act lists 19 enumerated "independent regulatory agencies". Generally, the heads of independent regulatory agencies can only be removed for cause, whereas independent agencies such as the Environmental Protection Agency and Cabinet department heads serve "at the pleasure of the president".^[11] Executive Order 12866, which requires cost-benefit analysis for certain regulatory actions, does not apply to independent regulatory agencies.^[11]

Examples of agencies

• The Central Intelligence Agency (CIA) gathers intelligence and provides national security assessments to policymakers in the United States. It acts as the primary human intelligence provider for the federal government.
• 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 Consumer Financial Protection Bureau (CFPB) is responsible for consumer protection in the financial sector. Its jurisdiction includes banks, credit unions, securities firms, payday lenders, mortgage-servicing operations, foreclosure relief services, debt collectors, other financial companies operating in the United States.
• The Environmental Protection Agency (EPA) works with state and local governments throughout the United States to control and abate pollution in the air and water and to deal with problems related to solid waste, pesticides, radiation, and toxic substances. The EPA sets and enforces standards for air and water quality, evaluates the impact of pesticides and chemical substances, and manages the "Superfund" program for cleaning toxic waste sites.
• 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 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 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 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.^[12]
• The Federal Reserve Board of Governors is the governing body of the Federal Reserve System (frequently referred to as "the Fed"^[13]), the central bank of the United States. It conducts the nation's monetary policy by influencing the volume of credit and money in circulation. The Federal Reserve regulates private banking institutions, works to contain systemic risk in financial markets, and provides certain financial services to the U.S. government, the public, and financial institutions.
• The Federal Retirement Thrift Investment Board (FRTIB) 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 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 General Services Administration (GSA) is responsible for the purchase, supply, operation, and maintenance of federal property, buildings, and equipment, and for the sale of surplus items. GSA also manages the federal motor vehicle fleet and oversees telecommuting centers and civilian child care centers.
• The International Trade Commission (ITC) 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.
• The National Archives and Records Administration (NARA) preserves the nation's history by overseeing the management of all federal records. The holdings of the National Archives include original textual materials, motion picture films, sound and video recordings, maps, still pictures, and computer data. The Declaration of Independence, the U.S. Constitution, and the Bill of Rights are preserved and displayed at the National Archives building in Washington, D.C.
• The National Aeronautics and Space Administration (NASA) is a U.S Government Space Agency that is responsible for the civilian space program as well as aeronautics and aerospace research.
• 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.^[14]
• The Nuclear Regulatory Commission (NRC) was established by the Energy Reorganization Act of 1974 from the United States Atomic Energy Commission, and was first opened January 19, 1975. The NRC oversees reactor safety and security, reactor licensing and renewal, radioactive material safety, and spent fuel management (storage, security, recycling, and disposal).
• The National Science Foundation (NSF) is a United States government agency that supports fundamental research and education in all the non-medical fields of science and engineering.
• 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 Postal Regulatory Commission (PRC) was 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 Selective Service System (SSS) is an independent federal agency operating with permanent authorization under the Military Selective Service Act (50 U.S.C. App. 451 et seq.). It is not part of the Department of Defense; however, it exists to serve the emergency manpower needs of the Military by conscripting untrained men, or personnel with professional health care skills, if directed by Congress and the President in a national crisis. Its statutory missions also include being ready to administer an alternative service program, in lieu of military service for men classified as conscientious objectors.
• The Small Business Administration (SBA) was created in 1953 to advise, assist, and protect the interests of small business concerns. The SBA guarantees loans to small businesses, aids victims of floods and other natural disasters, promotes the growth of minority-owned firms, and helps secure contracts for small businesses to supply goods and services to the federal government.
• 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.
• The Surface Transportation Board (STB) was created in the ICC Termination Act of 1995 and is the successor agency to the Interstate Commerce Commission. The STB is an economic regulatory agency that Congress charged with resolving railroad rate and service disputes and reviewing proposed railroad mergers. The STB is decisionally independent, although it is administratively affiliated with the Department of Transportation.
• The United States Postal Service is defined by statute as an "independent establishment" of the federal government, which replaced the Cabinet-level Post Office Department in 1971. The Postal Service is responsible for the collection, transportation, and delivery of the mails, and for the operation of thousands of local post offices across the country. It also provides international mail service through the Universal Postal Union and other agreements with foreign countries.
• Other independent agencies: the National Credit Union Administration (NCUA) and the Consumer Product Safety Commission (CPSC).

Former agencies

• The Committee on Public Information was an agency created to influence the U.S. public opinion regarding American participation in World War I. Lasting from April 14, 1917, to June 30, 1919 it was directed by George Creel. The agency used propaganda available to achieve its goals.
• 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 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, which later became part of the Department of Transportation.
• The Reconstruction Finance Corporation was designed to help finance projects during the Great Depression. It later helped finance the nation's military buildup as World War II approached. Scandals led to its eventual dissolution in 1956.
• The Office of the United States Nuclear Waste Negotiator was responsible for the placement and long term storage of radioactive waste. It was dissolved in 1995.^[15]
• The United States Information Agency, which was partially merged into the Department of State in 1999.

Footnotes

1. 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
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
3. Pierce, Shapiro, & Verkuil (2009) p. 102.
4. See, e.g., Humphrey's Executor v. United States, 295 U.S. 602 (1935).
5. Shane, Merrill, Mashaw (2003) p. 230; Pierce, Shapiro, & Verkuil (2009) p. 102.
6. Shane, Merrill, Mashaw (2003) p. 231.
7. See Bowsher v. Synar, 478 U.S. 714 (1986), Buckley v. Valeo, 424 U.S. 1 (1976)
8. Humphrey's Executor v. United States 295 U.S. 602 (1935)
9. Buckley v. Valeo, 424 U.S. 1 (1976)
10. See Myers v. United States, 272 U.S. 52 (1926); Buckley v. Valeo, 424 U.S. 1 (1976)
11. Copeland CW. (2013). Economic Analysis and Independent Regulatory Agencies. Administrative Conference of the United States. See more at Benefit-Cost Analysis at Independent Regulatory Agencies.
12. Federal Maritime Commission
13. See, e.g., "Fed, central banks move to boost global confidence". AP.
14. See "About the NTSB".
15. [ Richard H. Stallings Biography, Idaho State University Library]

See also

• Regulatory agency
• Federal executive departments
• List of U.S. federal agencies
• Government-owned corporations

External links

• List of independent agencies from whitehouse.gov
• regulations.gov