Professors David E. Lewis and Jennifer L. Selin ·
83 Geo. Wash. L. Rev. 1487 ·
The legitimacy of the federal executive establishment’s administrative policies
hinges on the ability of democratically elected officials to hold federal
agencies accountable. While both the President and Congress have a variety
of tools they can employ to enhance control over the bureaucracy, elected officials
have chosen to insulate some agencies from politics. Courts and legal
scholars have focused a lot of attention on what constitutes an “independent”
agency and what consequences this should have for jurisprudence. In this Article,
we explore decisions to insulate agencies from political control by examining
the statutory features of 321 agencies and bureaus in the federal
executive establishment. Our analysis of a broad range of statutes suggests
that there is substantial and underappreciated variation in the structural characteristics
that influence the accountability of federal agencies to the President
and Congress. These characteristics change over time, influence administrative
policy, and have implications for judicial deference to federal regulations.
