The independent agency has been around for 100 years now, but we are still trying to understand how it best relates to the administration of government. Its popularity as an organizational mechanism is more a function of competing political forces within the legislative and executive branches than of any systematic analysis of its effectiveness. Yet one can discern reasons why independent agencies might be superior mechanisms for administering government programs if their structure and purpose are analyzed functionally. This essay proposes to do that and, in the process, reach some conclusions about both the potential and the limits of the independent agency as a vehicle for making government decisions. I. INTRODUCTION TO THE INDEPENDENT AGENCY PUZZLE Ironically, it was during the New Deal period, the golden age of the independent agency, that its weaknesses were eloquently exposed. Even while important new independent agencies were being established with legislative and executive cooperation (such as the Civil Aeronautics Board, Federal Communications Commission, National Labor Relations Board and Securities and Exchange Commission), President Roosevelt was being advised by the Brownlow Committee to place the independent agencies under executive departments in order to manage administrative policymaking. The vivid words of that Committee refer to the independent agency as a "headless fourth branch of government." 1 The purpose of Louis Brownlow's efforts was to restore to President Roosevelt greater control over the regulatory state his administration had virtually invented. The Committee concluded: The independent commissions present a serious immediate problem. No administrative reorganization worthy ...
Paul R. Verkuil,
The Purposes and Limits of Independent Agencies,
1988 Duke Law Journal
Available at: http://scholarship.law.duke.edu/dlj/vol37/iss2/5