Independent Agencies of The United States Government - Functional Characteristics

Functional Characteristics

Independent agencies can be distinguished from the federal executive departments and other executive agencies by their structural and functional characteristics. Congress can also designate certain agencies explicitly as "independent" in the governing statute, but the functional differences have more legal significance.

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. (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, 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. Normally there are statutory provisions limiting the President's authority to remove commissioners, typically for incapacity, neglect of duty, malfeasance, or other good cause. 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.

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. 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. Presidential attempts to remove independent agency officials have generated most of the important Supreme Court legal opinions in this area. 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. 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. Members of Congress cannot serve as commissioners on independent agencies that have executive powers, nor can Congress itself appoint the commissioners - the Appointments Clause of the Constitution vests that power in the President. The Senate does participate, however, in appointments through "advice and consent", which occurs through confirmation hearings and votes on the President's nominees.