Public Law & Legal Theory
When should courts be responsible for designing federal administrative agencies? In Free Enterprise Fund v. Public Company Accounting Oversight Board, the Supreme Court invalidated one specific mechanism that Congress employs to insulate agencies from presidential control. Lower federal courts have discerned wider implications in the decision’s linkage of presidential power to remove agency officials with democratic accountability. Applied robustly, the Free Enterprise Fund principle casts doubt on many agencies' organic statutes. As the judiciary starts exploring those implications, this Article evaluates the effects of judicial intervention in administrative agency design in light of recent political science work on bureaucratic behavior, historical studies of state development, and comparative analyses of other countries' civil services. Judicial intervention in agency design, I conclude, will not generate consistent and predictable outcomes and instead risks diluting majoritarian control and fostering policy uncertainty. In light of the tenuous correlation between changes in presidential removal power and the underlying constitutional good of democratic accountability, I argue, removal power questions should be ranked as “political questions” beyond federal court competence.
Aziz Huq, "Removal as a Political Question" (University of Chicago Public Law & Legal Theory Working Paper No. 415, 2013) available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2213585..