The 1980s have witnessed two related but distinct attacks on independent agencies. 1 One attack is grounded in constitutional theory. Some have argued that independent agencies, those "strange amalgam[s]" that blend the functions of all three branches but are the creatures of none, violate the separation of powers doctrine in the Constitution. 2 This approach has been labeled "neoclassical" 3 or the "new formalism." 4 These terms suggest a rediscovery of fundamental constitutional principles. Another attack proceeds from an organizational perspective. Without clear lines of authority from one branch of government, independent agencies are politically unaccountable, and therefore vulnerable to regulatory inefficiency and external manipulation. 5 In essence, the independent agency form is organizationally dysfunctional. This functional critique is almost as old as independent agencies, yet the criticism continues unabated. These two lines of attack are distinct in several ways. One questions the constitutionality of a form, the other criticizes its function. The latter has a long history; the former reflects a reawakening and expansion of a traditional argument. They are related in one significant way. Both critiques present themselves as politically neutral, questioning the form of regulatory agencies rather than their political purpose or effect. Joined together, as they often are, these two themes have become the 1980s assault on the fundamental legitimacy of independent agencies. How can we explain the timing and intensity of the present debate on independent agency structure? After all, independent agencies have been around for one hundred years, 6 and have been created to ...
Susan B. Foote,
Independent Agencies Under Attack: A Skeptical View of the Importance of the Debate,
1988 Duke Law Journal
Available at: http://scholarship.law.duke.edu/dlj/vol37/iss2/2