Document Type
Article
Publication Title
Hofstra Law Review
Publication Date
2026
Abstract
What will be the fate of the independent agencies? Since 1887, Congress has seen fit to address an array of contemporary issues by creating expert federal agencies, such as the Interstate Commerce Commission, the Federal Trade Commission, the National Labor Relations Board, and others. The principal officers of these agencies are appointed by the President on advice and consent of the Senate, serve limited staggered terms, are bipartisan in the sense that only a bare majority of the agency’s officers can be members of the same political party, and are “independent” in the sense that the officers are removable only by the President on a showing of good cause. U.S. Presidents of both political parties long have chafed at the latter feature: their lack of at-will removal authority over the independent agency commissioners. The legal question – whether congressional restrictions on the President’s removal power violate Article II of the Constitution – went before the Supreme Court in 1935. The Court upheld the Federal Trade Commission Act ninety years ago, but the Court’s rationale has been challenged as obsolete and undemocratic.
The constitutionality of the independent agencies is now back before the Supreme Court. This Article argues that the Court in its deliberations should recognize several factors that are highly relevant but may not be entirely visible to the Court. First, the Court should recall that the model of the independent agency was created at a time when majoritarian party politics allowed little opportunity for minority and individual voices to be heard in a national forum. Today’s independent agency heads should be exempt from at-will removal and thus allowed to serve the same purpose of attending to different perspectives on regulatory issues. To illustrate this point, the Article takes note of a famous work of fiction by Henry Adams, Democracy: An American Novel, which captures the tension between oppressive majoritarian politics and the need for new institutions such as independent agencies. Second, the Article urges the Court to recognize that agencies with for-cause tenure protections are poised to encourage disinterested judgment on regulatory issues, thus providing another rationale for retaining the independent agencies. Besides reviewing these background considerations, the Article proposes a new framework for removal cases, strengthening the role of popular sovereignty in the regulatory context.
Recommended Citation
Brian C. Murchison, The People, the Branches, and the Pearl of Independence, 54 Hofstra L. Rev. 249 (2026).
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