Independent agencies are in the judicial crosshairs. Scholars criticize their efficacy—while still puzzling over how to define the form. By and large, this attention focuses on the top of the agency hierarchy, the extent to which agency heads are insulated from presidential control. What this perspective misses, however, is that power is also exercised by tenure-protected civil servants below. This phenomenon exists not because Congress has delegated them authority, but because executive branch actors have. Consequently, there exists another species of independent agency that requires a reckoning: call them “submerged independent agencies.” These entities are “agencies” because they wield discretionary governmental authority. They are “independent” because they are headed by career staff removable only for cause. And they are “submerged” in that they are relatively unknown to scholars, judges, and sometimes even agency heads themselves.
This Article introduces the concept of submerged independent agencies, sheds light on their scope, and reflects upon the resulting normative implications. Using over forty years of data drawn from the Federal Register, the analysis reveals that when political appointees delegate their statutory authority, the majority of these powers go to civil servants rather than fellow appointees. This behavior appears to be driven by strategic political considerations. Most notably, subdelegations to civil servants in executive agencies occur more frequently during the midnight period before a presidential transition — perhaps indicating an effort to entrench preferences. In addition, subdelegation may be less common during periods of divided party control between the presidency and House. This behavior may reflect an attempt to avoid provoking congressional ire by reassigning powers that Congress had bestowed on others.
These findings raise several legal and normative concerns. Many submerged independent agencies are vulnerable to constitutional challenge and raise difficult statutory questions. Whether the phenomenon is ultimately desirable for the administrative state is an open, empirical question. On the one hand, subdelegations raise the prospect of agency burrowing and entrenchment, and thus diminish political accountability. On the other hand, they can foster expertise and reduce ossification by dispersing decision-making authority within an agency. Accordingly, we consider various institutional mechanisms to help political actors navigate these tradeoffs, such as processes for reviewing actions taken pursuant to delegated authority; regular sunsets of such authority; and a more robust process of revisiting subdelegations during presidential transitions.
Feinstein, Brian D. and Nou, Jennifer, "Submerged Independent Agencies" (2022). Public Law and Legal Theory Working Papers. 729.