First Page
441
Last Page
484
Document Type
Symposium
Abstract
The anticipated demise of the independent agency is a saga that implicates Congress as much as it does the President or the Supreme Court. By capitulating to presidential initiatives and failing to defend their institutional prerogatives, Congress has facilitated presidential control of the administrative state. Indeed, irrespective of whether the Court formally repudiates Humphrey’s Executor, Congress has largely acquiesced to a regime whereby presidents essentially control independent agencies. By highlighting the competing incentives of Congress and the White House, this Essay explains the rise of presidential unilateralism vis-à-vis independent agencies. This Essay also casts light on a critically important but largely ignored feature of congressional acquiescence, namely, the shift in power away from often-bipartisan congressional committees to congressional leaders who exercise power by leaning on partisan divisions. In so doing, this Essay underscores how checks and balances gave way to polarization and the rise of the administrative presidency. Finally, by explaining how political will has largely defined the President–Congress–Agency interface, this Essay argues that the give- and-take of politics matters more than either the statutory design of government agencies or Supreme Court doctrine regarding presidential removal authority.
Recommended Citation
Neal Devins,
The Executive’s Takeover of
Independent Agencies: How Institutional Design Gave Way to Political Will,
53 Pepp. L. Rev.
441
(2026)
Available at:
https://digitalcommons.pepperdine.edu/plr/vol53/iss3/3
Included in
Administrative Law Commons, Constitutional Law Commons, Legislation Commons, President/Executive Department Commons, Public Law and Legal Theory Commons, Supreme Court of the United States Commons
