It is executed by the executive. The question is the degree of power the executive has over the policies they're enacting. Not crazy at all to believe that the policy-making body of our government largely controls that.
This is very obviously the design of our government.
"[The President] shall take Care that the Laws be faithfully executed"
“Independent” agencies have always been a distinction within the executive branch, not a distinction from thr executive branch, so while arguably true on its face, your statement is also a strawman.
The common use of that termis to describe administrative agencies with regulatory power, independent of whether they are independent agencies; its a (hostile and derogatory reference to) bureaucracy distant from elected officials, not a theory of the positioning of independent agencies in contrast to other executive agencies.
Citation needed. My reference goes all the way back to 1937 and is specific to independent agencies.
> Almost fifty years of experience has accustomed lawyers and judges to accepting the independent regulatory commissions, in the metaphor, as a headless 'fourth branch' of government.
The full paragraph you're excerpting from Wikipedia is much less convincing:
> Such groups can include the press (akin to the European 'Fourth Estate'), the people (in sum or as grand juries), and interest groups. The independent administrative agencies of the United States government, while technically part of any one of the three branches, may also be referred to as a ‘fourth branch’.
Anyone using the expression to refer to "the people" or "the press" obviously isn't talking about those groups' legal relationships to the de jure branches of government. My sense (from the Wikipedia article, but also anecdotally) is that "fourth branch" is just a colloquial way to refer to various sociopolitical groups. So I don't see this as a convincing rebuttal to dragonwriter's comment.
That's come up, too. The Copyright Office is a unit of the Library of Congress. Trump tried but failed to fire the head of the Copyright Office.[1]
U.S. Marshals used to belong to the judicial branch, and were hired by the district courts. In the 1960s, they were moved to the executive branch, under the Justice Department. This wasn't controversial at the time. The court system wasn't set up to train and manage the marshals. But the effect was that the courts lost their independent muscle.
Related to this, there's a bill to move immigration judges from Homeland Security to the judicial branch, making them "Article 3 judges". That's currently considered unlikely to pass this session, but maybe next session.
why is that crazy? legislative supremacy is an extremely common pillar of many theories of democracy. the executive has only the powers enumerated in the Constitution and explicitly granted by Congress. if Congress wants to set up an agency independent of POTUS, that "should" (scare quotes because who knows what this activist SCOTUS will do) be well within its constitutional purview
The Constitution was, after all, written by people who had just fought a war to throw off an overreaching executive. No goal was more important to them than to prevent another one.
Except they fumbled the ball by creating a unitary executive. I don't blame them too much because that's all they'd known, the US was a hundred times smaller, and they were making it up as they went.
Democracy would be more resilient to an executive coup if its powers were split among several independently elected officials, like we see in some state governments today.
They did not create a unitary executive. The concept of a unitary executive as rule of law did not exist until a 2020 decision by the John Robert's court
Unitary in the sense that they debated whether to have one guy in charge or several. They defaulted back to what they knew, the rule of one dude with limited but sole executive power.
Edit: This is what I'm referring to and it has direct bearing on the current controversy.
The legislature also has only the powers enumerated in the Constitution. As "create independent agencies" is not one of those powers, it comes down to a matter of interpretation as to whether one of the powers granted to Congress implies the ability to create independent agencies. But once you enter the land of interpretation, it's, well... open to interpretation, and thus it's not unreasonable for someone to take issue with a certain interpretation.
Proposal: constitutional amendment granting Congress the power to institute independent agencies lead by independently elected officials directly responsible to the voting public and subject to Congressional impeachment.
For example, make attorney general an elected, independent position.
What do you mean? Why isn’t it okay to create agencies that have different models of management? Like by Congress or private third parties or whatever? They can do whatever legislation allows right?
While Congress has broad authority to create and design federal agencies, the Constitution is widely considered to impose strict limits to ensure no branch "gives away" its core powers, vis a vis the Appointments Clause, due process clause and Article I vesting clause[1]
Because the constitution explicitly grants the president absolute executive power over executive branch (government) of which FCC is part of. If government is a company then president is CEO and can do anything he wants to do.
Of course people can argue about the meaning so ultimately the arbiter of what constitution mean is Supreme Court.
And recently there were several lawsuits in the vain "the president can't do THAT" and while federal judges said "indeed, he can't" and issued injunctions, they were pretty much overturned by higher court or Supreme Court, re-affirming that president does in fact has control of executive branch.
And if you want to game this: if this wasn't true, congress could completely defang the powers of the president by making every government agency (IRS, FBI, FTC etc.) "independent" and de facto giving the power to unelected beaurocrats away from elected president.
And why should you care about this?
Because every 4 years you can vote for a different president.
FCC commissioners are appointed by the president (who is elected) and confirmed by senators (who are also elected). The chair is then chosen from those commissioners by the president (who, again, is elected).
Saying you can't vote for the head of the FCC is like saying that you can't vote for the Secretary of State. Sure, you don't cast a ballot for them directly, but you do wield influence by electing leaders to represent your interests.
My inference was that you were suggesting that the "independent FCC commissioner" was just as subject to control by elected officials as the Secretary of State because both are appointed by elected officials.
That's why I pointed out that the Secretary of State can be fired at whim by an elected official while the "independent FCC commissioner" can't.
> Because the constitution explicitly grants the president absolute executive power over executive branch
No it doesn't.
The President is obligated to faithfully execute the laws of the United States. It's literally in the very first sentence of the Constitution's definition of the President's power and responsibilities.
Article 2, Section 1 says: "The executive Power shall be vested in a President of the United States of America."
Compare with Article 1, Section 1: "All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives" and with Article 3, Section 1: "The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish."
Who holds legislative power? Congress.
Who holds judicial power? The Supreme Court (and other courts that Congress establishes).
Who holds executive power? The President.
I'm no advocate for the extreme unitary executive theories of folks like John Yoo, but the idea that all executive authority is vested in the president can't be written off as something that some crank came up with in just the last couple of decades.
Right, and the executive power is the power to execute the laws that Congress writes (plus foreign policy, armed forces, and a bunch of procedural stuff — Constitutionally quite weak actually [by design])
Well, yes, the office of president was created to be weak relative to the British monarchy. But the substance of executive power (i.e., what actions are authorized) isn't really the issue, but rather whether anyone other than the president has the constitutional authority to do those things.
Take, for instance, the executive power "to grant Reprieves and Pardons for Offences against the United States" (Art. 2, Sec. 2). There is a pardon attorney who advises the president, but it is solely the president who has the executive power to grant the pardon; in that sense the president exercises the pardon power exclusively (or phrased differently "to the absolute exclusion of others").
Yes, Congress writes the laws, and the executive executes them. That’s certainly true in the general case. But when we talk about independent agencies like the FCC, the relevant question isn’t just the functional division of labor, but rather who holds the constitutional authority versus who exercises it under statutory constraints. In other words, even if Congress intends for the agency to act independently, the president’s Article II authority still provides the baseline for executive power. The pardon example illustrates the principle that some executive functions are exclusively presidential; independent agencies are essentially a statutory modification of that baseline, not a negation of it.
Of if one prefers to have it from directly from Chief Justice John Marshall, Marbury v. Madison, 5 U.S. 137 (1803):
"By the Constitution of the United States, the President is invested with certain important political powers, in the exercise of which he is to use his own discretion, and is accountable only to his country in his political character and to his own conscience. To aid him in the performance of these duties, he is authorized to appoint certain officers, who act by his authority and in conformity with his orders.
In such cases, their acts are his acts; and whatever opinion may be entertained of the manner in which executive discretion may be used, still there exists, and can exist, no power to control that discretion. The subjects are political. They respect the nation, not individual rights, and, being entrusted to the Executive, the decision of the Executive is conclusive. The application of this remark will be perceived by adverting to the act of Congress for establishing the Department of Foreign Affairs. This officer, as his duties were prescribed by that act, is to conform precisely to the will of the President. He is the mere organ by whom that will is communicated."
So every 4 years we throw out everyone who disagrees with the El Presidente. But yeah, this can be fixed by making the El Presidente be there for life, right?
Independent agencies exist to make policy shifts more gradual. That's their entire purpose.
Suppose, the next election cycle AOC gets elected, then puts in her cronies who require all stations to air 8 hours of pro-socialism ads every day. And there is nobody at the FCC to say "no".
The only entity that can sue is the DOJ, and it's also controlled by the president.
> Suppose, the next election cycle AOC gets elected, then puts in her cronies who require all stations to air 8 hours of pro-socialism ads every day. And there is nobody at the FCC to say "no".
Don't worry--if that came to pass, the Supreme Court would suddenly reverse itself and decide that the president doesn't actually have that much power over the executive branch. He only has that power when he's an (R).
