If it is true that the Roberts Court overrules one precedent per year, Humphrey’s Executor is likely one of its next targets. Nearly ninety years ago, the Supreme Court in Humphrey’s Executor upheld the constitutionality of statutory for-cause removal protections for the multimember heads of the Federal Trade Commission (FTC). That precedent allowed Congress to continue to insulate the leaders of so-called independent agencies from at will firing by the president. Many progressives view Humphrey’s Executor as critical for preserving expert-driven regulatory governance insulated from excessive politics. Many conservatives, by contrast, view Humphrey’s Executor as a direct threat to political accountability through presidential control.
As the debate over Humphrey’s Executor intensifies, one may reasonably wonder whether independent agencies are as great as progressives believe or as dangerous as conservatives fear. In The Independent Agency Myth, Neal Devins and David Lewis shed some important empirical light on those questions. Based on two large surveys of agency officials, they conclude that “the independent agency model no longer works; most independent agencies are not particularly expert, not particularly influential, and their policies and policy-making processes are subject to (not insulated from) elected branch oversight and manipulation.” (P. 1309.) This conclusion is reminiscent of my colleague Dan Crane’s take that today’s FTC “bears almost no resemblance to the Progressive-technocratic vision articulated by the [Humphrey’s Executor] Court. The Commission is not politically independent, uniquely expert, or principally legislative or adjudicative.”
There is so much to like about The Independent Agency Myth. After detailing the rise and purpose of independent agencies, Part II of the article presents the findings from the two surveys of 554 political appointees and 4,776 career executives during the Obama (2014) and Trump (2020) administrations. In unpacking the survey results, they focus on the findings related to the three main reasons for independent agencies: (1) expertise; (2) insulation from politics; and (3) policy stability.
With respect to agency expertise, Devins and Lewis assess agency respondents’ perceptions of workforce skill—i.e., whether independent agencies attract a more expert workforce. In the 2014 survey, “executive agencies (Mean: -0.02) have a higher average estimated workforce skill than independent agencies, and this difference is statistically significant (Mean: -0.45; p<0.02).” (Pp. 1329–30.) In the 2024 survey, independent agencies are estimated to have a slightly more skilled workforce, though the difference is not statistically significant. From both survey results, Devins and Lewis conclude that these findings are “at odds with the expertise justification for the independent agency design.” (P. 1331.) It is an interesting choice to frame agency expertise in terms of skilled workforce. That is one way to get at whether independent agencies are more technocratic. It would also be interesting to learn the agency respondents’ perceptions about whether agency policymaking is driven more by facts and science (as opposed to political considerations) at independent agencies compared to executive agencies.
With respect to insulation from politics, both surveys suggest that independent agencies are less influenced by the White House than traditional executive agencies, though similarly influenced by congressional committees and political appointees. For both types of agencies, however, political appointees exercise the most policy influence. Accordingly, Devins and Lewis conclude that “[t]he primary means by which the president influences agency decisions may be through personnel and appointees; these individuals influence policy decisions the most in the larger (and fully staffed) independent agencies.” (P. 1335.) This is another fascinating finding. Unlike Devins and Lewis, I see this finding as potentially strong evidence that the president does not have as much political control over independent agencies compared to executive agencies. If the president’s control comes mainly through the personnel power, the president has less power to control an agency if she cannot easily fire—or threaten to fire—that agency leadership.
By policy stability, Devins and Lewis mean that “agency policy would not shift from administration to administration,” but “[i]nstead, commissioners would reach across party lines and produce stable fact-based policies.” (P. 1336.) Especially when it comes to major agencies, the survey results reveal no difference between independent and executive agencies when it comes to partisan influence and instability during changes in presidential administration. This probably comes as no surprise to those of us who follow the major independent agencies—whether that’s the Federal Communication Commission’s flip-flopping on net neutrality or the variety of major actions being pursued by the FTC under Chair Lina Khan’s leadership.
Assuming these survey responses reflect reality in the modern administrative state, why are independent agencies failing to live up to their Progressive Era ideal of apolitical and technocratic regulatory policymaking? Devins and Lewis turn to this question in Part III. They blame the failure on two related changes in American politics: with the rise of political polarization, more-partisan leaders are being appointed to run independent agencies; and with the further expansion of the administrative state, presidential administration has likewise strengthened. Devins and Lewis conclude their article with the recommendation that “[m]ost independent agencies can be safely folded into executive departments, leaving only the visible and high-functioning independents in their current form.” (P. 1374.)1 Those high-functioning agencies would include major agencies like the Federal Reserve and FTC.
If the Supreme Court ends up taking a case to decide whether to overrule Humphrey’s Executor, I expect The Independent Agency Myth to feature prominently in the briefing and at oral argument. Although much more empirical work should be done, Devins and Lewis’s findings cast at least some doubt on the continuing effectiveness of statutory removal restrictions in terms of increasing technocratic decisionmaking, reducing political influence, and preserving stability in regulatory policymaking. I hope to see further engagement with their study and findings.
In a world without Humphrey’s Executor, we will have to turn to other tools and doctrines to encourage expertise, predictability, and stability in the areas of regulatory governance where we may be most concerned about the shifting political winds. Agency adjudications, internal government corruption investigations, election administration, and financial markets regulation come immediately to mind. For instance, as Aaron Nielson and I detail elsewhere, Congress has a powerful anti-removal toolkit it can and should further employ to create a greater measure of decisional independence at such federal agencies. For those who believe that the independent agency structure provides the answer, however, The Independent Agency Myth should provide at least some cause for concern and should encourage further exploration.
- In this short review, I do not address their important findings regarding the political neglect of smaller independent agencies—those agencies that Devins and Lewis recommend should be folded into the executive branch.
