Executive Power

Will President Biden Have Greater Control Over Independent Agencies than His Predecessors?

A newly released OLC opinion asserts the White House can require independent agencies to comply with Executive Orders on regulatory review.

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For decades, Executive Orders requiring executive branch agencies to submit draft regulatory proposals to the White House Office of Information and Regulatory Affairs (OIRA) have exempted independent agencies. A lingering question has been whether this is because the White House lacks the authority to impose such requirements on independent agencies, because the Executive Branch sought to respect the functional independence of such agencies, or because no Administration wanted to risk asserting such authority and then getting rebuffed in Court.

In October 2019, the Department of Justice's Office of Legal Counsel conducted a review of this question, and concluded that the President could indeed require independent agencies to comply with the regulatory review requirements of Executive Order 12866. The memo was not released publicly, however, until this week, when it was posted on the DOJ website.

The introduction to the 31-page memo, "Extending Regulatory Review Under Executive Order 12866 to Independent Regulatory Agencies." reads:

You have asked whether the President may direct independent regulatory agencies to comply with the centralized regulatory review process of Executive Order 12866 of September 30, 1993, 3 C.F.R. 638 (1994) ("EO 12866"). EO 12866 requires all agencies to submit an annual regulatory plan and agenda to the Office of Information and Regulatory Affairs ("OIRA") in the Office of Management and Budget ("OMB"). But it exempts "independent regulatory agencies," as defined in 44 U.S.C. § 3502, from the rest of the order, which requires agencies to submit significant regulatory actions to OIRA for review. OMB has proposed that the President eliminate that exemption and require independent regulatory agencies to comply with all of EO 12866.

Article II of the Constitution vests "[t]he executive Power" in the President, who "shall take Care that the Laws be faithfully executed." U.S. Const. art. II, § 1, cl. 1; id. § 3. By vesting the executive power in the President alone, the Constitution ensures that "a President chosen by the entire Nation oversee[s] the execution of the laws." Free Enter. Fund v. Pub. Co. Accounting Oversight Bd., 561 U.S. 477, 499 (2010). The President can hardly ensure that the laws are faithfully executed "if he cannot oversee the faithfulness of the officers who execute them." Id. at 484. The President's constitutional authority therefore extends to the supervision of all agencies that execute federal law, including so-called "independent" agencies.

Although the Supreme Court has held that Congress may insulate independent agencies to some degree from presidential supervision, the proposed executive action would not test any statutory limits. Congress has often provided that the heads of those agencies are removable only for particular causes, such as "inefficiency, neglect of duty, or malfeasance in office." E.g., 15 U.S.C. § 41. But statutory restrictions on removal, standing alone, do not bar those agencies from complying with EO 12866; indeed, the terms of such good-cause restrictions presuppose that the President may supervise an agency head to ensure compliance with the duties of office and with principles of good governance. Other structural features associated with independent agencies, such as multi-member governance, independent litigating authority, or open-meeting requirements, likewise do not preclude those agencies from complying with EO 12866. We therefore conclude that the President may direct independent agencies to comply with EO 12866.

This memorandum may be something of a gift for the Biden Administration. Unless the memo is withdrawn, it will serve as a basis for President Biden to assert greater authority over independent agencies, such as the Federal Communications Commission (FCC), Securities & Exchange Commission (SEC) and Federal Energy Regulatory Commission (FERC).

This assertion of authority may be particularly useful for the Biden Administration's climate policy efforts, as it may make it easier to coordinate and direct climate policy initiatives across agencies, including those like the SEC and FERC, that have relevant authority. FERC, for instance, could adopt policies facilitating greater deployment of low-carbon power sources and accommodating the adoption of state-level carbon pricing. The SEC, for its part, could adopt policies requiring greater climate disclosures. If the President can require such agencies to engage in regulatory review, it would seem the President could also require climate-policy reviews as well.

It is possible that the assertion of such authority could provoke legal challenge, but would the courts stand in the way? The trend at the Supreme Court has been toward greater recognition of Presidential authority over agencies, limiting Congress's ability to insulate the heads of agencies from presidential control, as in Free Enterprise Fund v. Public Company Accounting Oversight Board and Seila Law v. Consumer Financial Protection Bureau. The general thrust of both opinions would suggest a White House asserting the authority to impose centralized review requirements on independent agencies would stand a good chance of prevailing in Court.

The Trump Administration has laid the groundwork for a greater assertion of Presidential authority during the Biden Administration. We will see whether President Biden seeks to exercise it.

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  1. Hopefully. The independence of “independent agencies” is constitutionally dubious, and has mostly resulted in mediocre to bad policy outcomes.

    1. “The independence of “independent agencies” is constitutionally dubious, and has mostly resulted in mediocre to bad policy outcomes.”

      Sure, because over a long enough timespan, eventually Republicans get to run them, and they don’t want any part of the federal government to be effective or efficient.

  2. He will certainly have less than Trump, whose control over independent agencies was unprecedently absolute and was unhindered by a Republican Senate which had abandoned its role as a check and balance. Mr. Adler seems to have slept through the last four years.

    1. And how many administrations have you slept through? Or did you just wake up and think Trump was our first President?

      1. Clinton would have loved to fire Louis Freeh. He didn’t. The FBI was an independent agency. That is, until Trump fired Comey, an act of obstruction of justice worse than the “smoking gun” conversation that forced Nixon to resign.

        He also would have loved to order Janet Reno to kill the Whitewater investigation. He didn’t. The DOJ was an independent agency. That is, until Trump hired Barr who acted as his personal enforcer.

        1. Fantasies.

        2. The DOJ was NEVER and independent agency. The AG serves at the pleasure of the President. Full stop.

          1. captcrisis explained quite a bit about the norms that used to be in place, which are fine and effective unless enough of the country stops caring about them.

            1. I think whether or not those things were ever norms is rather disputable. One former president letting the FBI and DOJ run wild does less than nothing to prove the existence of the claimed norms.

              1. Indeed let’s recall why President’s were afraid to fire Hoover.

            2. Here we go with “norms” again.

              An undefinable immeasurable standard of second guessing not your tribe.

              The executive is in charge of the entirety of the executive branch and has constitutional power to manage all of its branches.

              1. “Here we go with ‘norms’ again. ”

                Ultimately, what keeps us from having tyrants running the government is the self-restraint of the majority of them. If that self-restraint dissolves, so does the anti-tyranny protection that was coming from that self-restraint.

                1. If you stick to “it’s only bad when THEIR guy does it, but it’s fine when OUR guy does it”, you get what you deserve, eventually.

  3. Sort of OT but can Congress create a “legislative” agency that does all the promulgation of rules, taking it outside the President’s control, and leave enforcement to the executive or an “executive” agency? Is there any reason they have to be setup to regulate and enforce?

    1. Congress has tried several times to create an agency that is truly independent of Presidential control, by appointing a director who serves longer than a Presidential term and can only be fired for cause. With few exceptions, these arrangements have not survived judicial review.

      1. But that is because the agencies had enforcement powers so were executive. To my knowledge they have never created a purely legislative agency

        1. Library of Congress.

    2. In theory, I think they could. It would solve the alleged problem of regulations being too “complicated” for Congress to rule on directly.

      In practice, I can’t think why they would want to. They can just have their existing staffers ram all sorts of regulations into 5000+ page bills that nobody reads before voting on. What would Congress get out of an independent regulatory agency without enforcement authority?

      1. Information.
        As a general rule, you get better decisions when the people making decisions have access to accurate information.

        1. At least 5000 page monster sneaky stealth bills are voted on by Congress, and signed (or not) by the president.

          To maintain the constitutional fiction* that regulatory agencies are not creating laws but fulfilling laws, it is the executive branch, AKA the President, creating the regulation under his capacity of executing the laws.

          To declare hands off to the president transparently unconstitutional.

          * Strange. People have to pay fines or even go to jail because of words out of the mouths of men and women who aren’t Congress. That’s the dictate part of dictator.

          1. “Strange. People have to pay fines or even go to jail because of words out of the mouths of men and women who aren’t Congress. That’s the dictate part of dictator.”

            No, that’s Article III at work.

  4. Will lots of people around the world with blackmail material on Biden have better control over Biden than his predecessors?

    1. Biden can’t remember.

  5. The last thing Pres. Biden wants is responsibility. Power, yes, but responsibility, NO.

    1. Wow, thanks for the special insight into Biden’s mind and psyche. I think, perhaps, you have confused Biden with Donald “Not My Fault” Trump. Or maybe there’s some other explanation for your delusional post. I have a feeling you’re gonna enjoy the next 4 years.

  6. Looks like a win – win for the Ds. If the courts rule the president has full power over, “independent,” agencies, then Biden can use that to advance his agenda. If the courts say the opposite, then Biden can make appointments whose independence will not only advance his agenda, but also devil Republican successors.

    Later on, of course, that shoe will be on a Republican foot. So the real question is which is wiser, a president yet more independent of congressional oversight, or a president reined in? I prefer the latter.

    1. “So the real question is which is wiser, a president yet more independent of congressional oversight, or a president reined in? I prefer the latter.”

      Do a better job of vetting candidates, so you don’t get Presidents who need reining in.

      1. “Do a better job of vetting candidates, so you don’t get Presidents who need reining in.”

        To have even a small chance at doing that we would have get rid of both of the incumbent major parties.

        1. Don’t hold your breath. the system holds them in place, disincentivizing political efforts by people who aren’t members of one of those parties. It’s not hopeless, though, the Republicans came along and finished off the Whigs, though in the long term its hard to tell the difference between them. The Republicans swept in as a single-issue party, got what they wanted on their one issue, and then settled in to stay and absorbed a bunch of consituencies that would have opposed them on their original issue.

          1. “Don’t hold your breath.”

            I’m not. My personal opinion is that it will continue to get worse until it gets so bad that a majority of people decide to burn the existing government to the ground (literally or metaphorically) and start over from scratch.

            Note: I do not think it’s that bad yet, but I think it’s inevitable at this point that we will get there eventually.

            1. Even if you do get a substantial number of people who want to “burn the government to the ground”, you won’t see them abandoning their partisan branding. Each will insist on burning down the parts of the government they associate with the other party, while preserving the parts that are “theirs”. A Republican who dares criticize any part of the military will be driven from the party long before gathering enough support to burn much of anything.

    2. re: “So the real question is which is wiser, a president yet more independent of congressional oversight, or a president reined in?”

      You’ve framed it wrong entirely. Congress has no more “oversight” of those independent agencies than the President does. The real question is whether it is wiser to have a government with one executive who can be held accountable for all executive actions or a fragmented government of competing interests. I prefer the latter.

      However, Congress’s ability to create arbitrary fragments based on government function is constitutionally questionable.

      1. “Congress’s ability to create arbitrary fragments based on government function is constitutionally questionable.”

        Not if they stick to the list in Article I, Section 8.

  7. I have been wondering about a question related to mse326’s, above.

    Could Congress by law (assuming an ability to override a veto) institutionalize its oversight function, and appoint an inspector general for each federal department—an inspector general empowered to see everything, and reporting only to Congress? No power to do anything, except investigate and report. Any reason why that wouldn’t pass muster as Necessary and Proper?

    1. Investigating and reporting sounds a lot like the portfolio of the Department of Justice. You’re going to see a turf war.

      1. No, the DoJ investigates and prosecutes crimes. They have no overlap with IG functions.

        1. I see, so I was wrong that the DOJ has an investigatory function, because what they do is investigate, and that’s not an overlap? OK…

    2. The way the courts currently interpret “necessary and proper” there is absolutely nothing that wouldn’t pass muster as “necessary and proper”.

      1. Except that Republicans have been endeavoring to appoint judges who find nothing necessary and everything improper.

    3. Interesting question. There might be some national security exceptions. And maybe some exceptions for executive privilege. “See everything” could not, for example, include eavesdropping on presidential deliberations within his own advisors. But those are pretty minor exceptions that could be sorted out.

      You say the IG would have no power to do anything except investigate and report. I’d probably add some small but painful power to stop operations if/when the IG was blocked from their duties.

      But yes, I think that would pass muster even without Matthew’s cynical take on “necessary and proper”.

      1. ” I’d probably add some small but painful power to stop operations if/when the IG was blocked from their duties.”

        No, best leave this to the courts, to maintain separation of powers.

  8. I guess the first question which comes to mind is, what policy issues would Biden clash with the agencies about?

    1. You know, when he orders all the departments to seize all the guns.

  9. Setting aside the fraudulent election, President Biden should have control over agencies, because the Constitution vests the executive power in the President.

    If it’s not Congress, and it’s not the courts, then it’s the President. Any power outside of these is unconstitutional.

    1. “Setting aside the fraudulent election”

      Since you’re being so magnanimous to make this concession, I guess we can also set aside the attempt to steal the election after the vote counts turned out not to Trump’s liking.

  10. Biden will have greater control over ALL the agencies, nominally independent or otherwise, than Trump ever did. Because he won’t be facing a “resistance”.

    1. “Biden will have greater control over ALL the agencies, nominally independent or otherwise, than Trump ever did. Because he won’t be facing a ‘resistance’.”

      You’re saying all the idiots who keep saying that Biden lost the election are going to mysteriously shut up or go away in three weeks’ time?

      Having more control than Trump should be easy for anyone even remotely competent, which is why Trump lacked this control over everything. Hint: Trump’s management style is to sit back and wait for someone to do something useful, then try to take credit for it. This approach CAN work if you hire good, capable people and stay out of their way, AKA how Berkshire Hathaway makes money. Trump wanted personal loyalty way more than he wanted competence.

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