Independent agencies of the United States government
Encyclopedia
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). More specifically, the term is 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
), while in force, have the power of federal law.
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.
Federal government of the United States
The federal government of the United States is the national government of the constitutional republic of fifty states that is the United States of America. The federal government comprises three distinct branches of government: a legislative, an executive and a judiciary. These branches and...
are those agencies
Government agency
A government or state agency is a permanent or semi-permanent organization in the machinery of government that is responsible for the oversight and administration of specific functions, such as an intelligence agency. There is a notable variety of agency types...
that exist outside of the federal executive departments
United States Federal Executive Departments
The United States federal executive departments are among the oldest primary units of the executive branch of the federal government of the United States—the Departments of State, War, and the Treasury all being established within a few weeks of each other in 1789.Federal executive...
(those headed by a Cabinet
United States Cabinet
The Cabinet of the United States is composed of the most senior appointed officers of the executive branch of the federal government of the United States, which are generally the heads of the federal executive departments...
secretary). More specifically, the term is 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
United States Code
The Code of Laws of the United States of America is a compilation and codification of the general and permanent federal laws of the United States...
passed by the Congress
United States Congress
The United States Congress is the bicameral legislature of the federal government of the United States, consisting of the Senate and the House of Representatives. The Congress meets in the United States Capitol in Washington, D.C....
, each respective statutory grant
Organic law
An organic or fundamental law is a law or system of laws which forms the foundation of a government, corporation or other organization's body of rules. A constitution is a particular form of organic law for a sovereign state....
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
Rulemaking
In administrative law, rulemaking refers to the process that executive and independent agencies use to create, or promulgate, regulations. In general, legislatures first set broad policy mandates by passing statutes, then agencies create more detailed regulations through rulemaking.By bringing...
. These agency rules (or regulations
Administrative law
Administrative law is the body of law that governs the activities of administrative agencies of government. Government agency action can include rulemaking, adjudication, or the enforcement of a specific regulatory agenda. Administrative law is considered a branch of public law...
), while 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. 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
President of the United States
The President of the United States of America is the head of state and head of government of the United States. The president leads the executive branch of the federal government and is the commander-in-chief of the United States Armed Forces....
, independent agencies (in the narrower sense of being outside presidential control) almost always have a commission, board, or similar collegial body
Collegiality
Collegiality is the relationship between colleagues.Colleagues are those explicitly united in a common purpose and respecting each other's abilities to work toward that purpose...
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
United States Senate
The United States Senate is the upper house of the bicameral legislature of the United States, and together with the United States House of Representatives comprises the United States Congress. The composition and powers of the Senate are established in Article One of the U.S. Constitution. Each...
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
Neglect
Neglect is a passive form of abuse in which a perpetrator is responsible to provide care for a victim who is unable to care for himself or herself, but fails to provide adequate care....
, malfeasance
Malfeasance
The expressions misfeasance and nonfeasance, and occasionally malfeasance, are used in English law with reference to the discharge of public obligations existing by common law, custom or statute.-Definition and relevant rules of law:...
, or other good cause
Good cause
Good cause is a legal term denoting adequate or substantial grounds or reason to take a certain action, or to fail to take an action prescribed by law. What constitutes a good cause is usually determined on a case by case basis and is thus relative....
. 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
Majority
A majority is a subset of a group consisting of more than half of its members. This can be compared to a plurality, which is a subset larger than any other subset; i.e. a plurality is not necessarily a majority as the largest subset may consist of less than half the group's population...
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
Executive agency
An executive agency, also known as a next-step agency, is a part of a government department that is treated as managerially and budgetarily separate in order to carry out some part of the executive functions of the United Kingdom government, Scottish Government, Welsh Assembly or Northern Ireland...
political appointments. Presidential attempts to remove independent agency officials have generated most of the important Supreme Court
Supreme Court of the United States
The Supreme Court of the United States is the highest court in the United States. It has ultimate appellate jurisdiction over all state and federal courts, and original jurisdiction over a small range of cases...
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
Impeachment
Impeachment is a formal process in which an official is accused of unlawful activity, the outcome of which, depending on the country, may include the removal of that official from office as well as other punishment....
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
Appointments Clause
Article II, Section 2, Clause 2 of the United States Constitution, known as the Appointments Clause, empowers the President of the United States to appoint certain public officials with the "advice and consent" of the U.S. Senate...
of the Constitution vests that power in the President. The Senate does participate, however, in appointments through "advice and consent
Advice and consent
Advice and consent is an English phrase frequently used in enacting formulae of bills and in other legal or constitutional contexts, describing a situation in which the executive branch of a government enacts something previously approved of by the legislative branch.-General:The expression is...
", which occurs through confirmation hearings and votes on the President's nominees.
Examples
- The Commodity Futures Trading CommissionCommodity Futures Trading CommissionThe U.S. Commodity Futures Trading Commission is an independent agency of the United States government that regulates futures and option markets....
(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 Federal Election CommissionFederal Election CommissionThe Federal Election Commission is an independent regulatory agency that was founded in 1975 by the United States Congress to regulate the campaign finance legislation in the United States. It was created in a provision of the 1975 amendment to the Federal Election Campaign Act...
(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 Communications CommissionFederal Communications CommissionThe Federal Communications Commission is an independent agency of the United States government, created, Congressional statute , and with the majority of its commissioners appointed by the current President. The FCC works towards six goals in the areas of broadband, competition, the spectrum, the...
(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 Maritime CommissionFederal Maritime CommissionThe United States Federal Maritime Commission is an independent federal agency, based in Washington D.C., responsible for the regulation of oceanborne transportation in the foreign commerce of the U.S.-Mission:The FMC:...
(FMC) regulates the international ocean transportation of the United States. It is charged with ensuring a competitive, efficient, and economic ocean transportation system.
- The Federal Trade CommissionFederal Trade CommissionThe Federal Trade Commission is an independent agency of the United States government, established in 1914 by the Federal Trade Commission Act...
(FTC) enforces federal antitrust and consumer protectionConsumer protectionConsumer protection laws designed to ensure fair trade competition and the free flow of truthful information in the marketplace. The laws are designed to prevent businesses that engage in fraud or specified unfair practices from gaining an advantage over competitors and may provide additional...
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 National Labor Relations BoardNational Labor Relations BoardThe National Labor Relations Board is an independent agency of the United States government charged with conducting elections for labor union representation and with investigating and remedying unfair labor practices. Unfair labor practices may involve union-related situations or instances of...
(NLRB) administers the principal United States labor lawUnited States labor lawUnited States labor law is a heterogeneous collection of state and federal laws. Federal law not only sets the standards that govern workers' rights to organize in the private sector, but also overrides most state and local laws that attempt to regulate this area. Federal law also provides more...
, the National Labor Relations ActNational Labor Relations ActThe National Labor Relations Act or Wagner Act , is a 1935 United States federal law that limits the means with which employers may react to workers in the private sector who create labor unions , engage in collective bargaining, and take part in strikes and other forms of concerted activity in...
. 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 BoardNational Transportation Safety BoardThe National Transportation Safety Board is an independent U.S. government investigative agency responsible for civil transportation accident investigation. In this role, the NTSB investigates and reports on aviation accidents and incidents, certain types of highway crashes, ship and marine...
(NTSB) investigates all aviationAviationAviation is the design, development, production, operation, and use of aircraft, especially heavier-than-air aircraft. Aviation is derived from avis, the Latin word for bird.-History:...
accidentsAviation accidents and incidentsAn aviation accident is defined in the Convention on International Civil Aviation Annex 13 as an occurrence associated with the operation of an aircraft which takes place between the time any person boards the aircraft with the intention of flight and all such persons have disembarked, in which a...
in the United States, and certain major railroad and other accidents.
- The Securities and Exchange CommissionUnited States Securities and Exchange CommissionThe U.S. Securities and Exchange Commission is a federal agency which holds primary responsibility for enforcing the federal securities laws and regulating the securities industry, the nation's stock and options exchanges, and other electronic securities markets in the United States...
(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 United States International Trade CommissionUnited States International Trade CommissionThe United States International Trade Commission is an independent, bi-partisan, quasi-judicial, federal agency of the United States that provides trade expertise to both the legislative and executive branches. Further, the agency determines the impact of imports on U.S...
(USITC) 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.
- An independent Postal Regulatory Commission, also 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 ServiceUnited States Postal ServiceThe United States Postal Service is an independent agency of the United States government responsible for providing postal service in the United States...
.
- The Federal Retirement Thrift Investment BoardFederal Retirement Thrift Investment BoardThe Federal Retirement Thrift Investment Board was established as an independent agency of the United States government by the Federal Employees Retirement System Act of 1986. It is one of the smaller executive branch agencies, with just over 80 employees...
is one of the smaller Executive Branch agencies, with just over 100 employees. It was established to administer the Thrift Savings PlanThrift Savings PlanThe Thrift Savings Plan is a defined contribution plan for United States civil service employees and retirees as well as for members of the uniformed services....
(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 Energy Regulatory CommissionFederal Energy Regulatory CommissionThe Federal Energy Regulatory Commission 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) 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 Social Security AdministrationSocial Security AdministrationThe United States Social Security Administration is an independent agency of the United States federal government that administers Social Security, a social insurance program consisting of retirement, disability, and survivors' benefits...
(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.
- Other independent regulatory agencies include: the National Credit Union AdministrationNational Credit Union AdministrationThe National Credit Union Administration is the United States independent federal agency that supervises and charters federal credit unions...
, the Consumer Product Safety CommissionConsumer Product Safety CommissionThe United States Consumer Product Safety Commission is an independent agency of the United States government created in 1972 through the Consumer Product Safety Act to protect "against unreasonable risks of injuries associated with consumer products." The CPSC is an independent agency that does...
, and the Bureau of Consumer Financial Protection (formally part of the Federal Reserve Board), and the Federal Reserve SystemFederal Reserve SystemThe Federal Reserve System is the central banking system of the United States. It was created on December 23, 1913 with the enactment of the Federal Reserve Act, largely in response to a series of financial panics, particularly a severe panic in 1907...
itself.
Former agencies
- The Interstate Commerce CommissionInterstate Commerce CommissionThe Interstate Commerce Commission was a regulatory body in the United States created by the Interstate Commerce Act of 1887. The agency's original purpose was to regulate railroads to ensure fair rates, to eliminate rate discrimination, and to regulate other aspects of common carriers, including...
regulated common carrierCommon carrierA common carrier in common-law countries is a person or company that transports goods or people for any person or company and that is responsible for any possible loss of the goods during transport...
s 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 eventually replaced with the Surface Transportation BoardSurface Transportation BoardThe Surface Transportation Board of the United States is a bipartisan, decisionally-independent adjudicatory body organizationally housed within the U.S. Department of Transportation. The STB was established in 1996 to assume some of the regulatory functions that had been administered by the...
, within the Department of Transportation.
- The United States Maritime CommissionUnited States Maritime CommissionThe United States Maritime Commission was an independent executive agency of the U.S. federal government that was created by the Merchant Marine Act of 1936, passed by Congress on June 29, 1936, and replaced the U.S. Shipping Board which had existed since World War I...
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 ServiceUnited States Maritime ServiceThe United States Maritime Service, abbreviated as USMS, was established in 1938 under the provisions of the Merchant Marine Act of 1936. The mission of the organization is to train people to become officers and crewmembers on merchant ships that form the United States Merchant Marine...
. In 1950, its functions were transferred to the United States Maritime Administration within the Department of TransportationUnited States Department of TransportationThe United States Department of Transportation is a federal Cabinet department of the United States government concerned with transportation. It was established by an act of Congress on October 15, 1966, and began operation on April 1, 1967...
.
See also
- Independent regulatory agency
- List of U.S. federal independent agencies (legislative branch)
- List of U.S. federal independent agencies (judicial branch)
- List of U.S. federal independent agencies (executive branch)
- List of United States federal agencies