Administrative Conference

of the United States

Sourcebook of United States 

Executive Agencies

David E. Lewis

Jennifer L. Selin

Vanderbilt University

First Edition

December 2012

Administrative Conference of the U.S.

Appalachian Regional Commission

B. Goldwater Scholarship & Excellence in Educ. Pr.

Broadcasting Board of Governors

Central Intelligence Agency

Chemical Safety & Hazard Investigation Board

Commodity Futures Trading Commission

Consumer Product Safety Commission

Corporation for National Community Service

Corporation for Public Broadcasting

Council of Economic Advisers

Council on Environmental Quality

Defense Nuclear Facilities Safety Board

Delta Regional Authority

Department of Agriculture

Department of Commerce

Department of Defense

Department of Education

Department of Energy

Department of Health & Human Services

Department of Homeland Security

Department of Housing & Urban Development

Department of Transportation

Department of the Treasury

Department of Veterans A!airs

Environmental Protection Agency

Equal Employment Opportunity Commission

Export-Import Bank of the U.S.

Farm Credit Administration

Federal Agricultural Mortgage Corporation

Federal Communications Commission

Federal Deposit Insurance Corporation

Federal Election Commission

Federal Hospital Insurance Trust Fund Board

Federal Housing Finance Agency

Federal Labor Relations Authority

Federal Maritime Commission

Federal Mediation & Conciliation Service

Federal Mine Safety & Health Review Commission

Federal National Mortgage Association

Federal Reserve Board

Federal Retirement "ri# Investment Board

Federal Supp. Medication Insurance Trust Fund Bd

Federal Trade Commission

General Services Administration

Ad

Harry S Truman Scholarship Foundation

Institute for Museum & Library Services

Institute of American Indian Arts
About the Administrative Conference

of the United States

!e Administrative Conference is an independent federal agency 

dedicated to improving the fairness, e"ciency and e#ectiveness of 

federal agency processes and practices through consensus-driven 

applied research. !e Conference is a public-private partnership 

whose members include: the Chairman and 10 other presidential 

appointees, who comprise the Council; 50 senior government 

o"cials drawn from federal agencies, boards, and commissions; 

and 40 public members drawn from the private sector, including 

academia, who re$ect a wide diversity of views and backgrounds. 

!e work of the Conference is also supported by a small, full-time 

sta# in the O"ce of the Chairman. 

To ful%ll its mission, the Conference and its sta# perform a variety of 

functions. One of the chief activities of the Conference is conducting 

research that, in turn, serves as the foundation for identifying best 

practices and issuing formal recommendations to agencies, Congress, 

or the Judicial Conference. !ese recommendations have addressed 

a wide variety of administrative and regulatory issues, from the 

Conference’s seminal work developing a practical framework to 

advance the use of alternative dispute resolution by federal agencies 

to more recent e#orts aimed at e-Rulemaking, video hearings, and 

other innovative agency practices. Since its inception in 1968, the 

Conference has issued over 200 such recommendations—several 

of which Congress has enacted into law, and numerous others 

have been followed by agencies and courts. !e Conference also 

serves as a central resource for agencies, as well as other federal 

o"cials, by providing nonpartisan, expert advice and publishing 

reference guides on administrative procedural or regulatory topics. 

Conference sta# also engages in extensive outreach by, for example, 

appearing as speakers and conducting workshops and forums (o&en 

in collaboration with other federal agencies or private sector groups) 

to promote best practices or further the implementation of its 

recommendations.
Administrative Conference

of the United States

Office of the Chairman

Sourcebook of United States 

Executive Agencies

David E. Lewis

Jennifer L. Selin

Vanderbilt University

First Edition

DECEMBER 2012

!is report was prepared for the Administrative Conference of the 

United States pursuant to a consultant contract with the O"ce of 

the Chairman. While it has been widely circulated for comment, 

the views expressed are those of the authors and do not necessarily 

re$ect those of the members of the Conference or its committees.
ii

Chairman’s Foreword

!is volume honors important traditions and events. !e 

%rst is the Administrative Conference’s commitment to publishing 

signi%cant reference works—labeled “sourcebooks”— that are 

invaluable tools for agencies, executive o"cials, members of 

Congress, and the general public. A complete list of prior Conference 

sourcebooks and other publications can be found on our website.

!is Sourcebook also honors a 32-year-old classic by Ronald 

Moe of the Congressional Research Service, called !e Federal 

Executive Establishment: Evolutions and Trends, published by the 

Senate Governmental A#airs Committee in May 1980. !e Moe 

report described and analyzed the “growth, development and 

operation” of federal agencies, and has proven an indispensable 

reference tool for government o"cials and academics alike, as I can 

personally attest.

!e present volume expands, deepens, and updates the 

research in the Moe report, while acknowledging the debt owed to 

CRS and the Senate Committee for publishing in-depth research on 

governmental organizations. !e report has been prepared by the 

O"ce of the Chairman, which means that it is not the result of the 

formal approval process used by the Council and the Assembly of 

the Administrative Conference for Conference recommendations, 

although numerous Conference members provided their input as 

the work progressed. But the O"ce of the Chairman designation 

elides the work of individuals who should be recognized. At the 

Conference, this includes our Research Director, Gretchen Jacobs, 

and Deputy General Counsel, David Pritzker, who reviewed and 

edited various dra&s along the way to publication. It also includes 

Je#rey Lubbers, now Special Counsel, who brought to my attention 

the Moe report many years ago when Je# was the Conference’s 

Research Director.

!e laboring oars on this project belonged to our consultants, 

David Lewis and Jennifer Selin. At my urging and cajoling, 
iii

Professor Lewis enthusiastically undertook this project and shared 

the research burden with his colleagues and graduate students at 

Vanderbilt University. !e hours put into cra&ing this work are far 

too numerous to count, and they include a presentation by Professor 

Lewis on a preliminary dra& to congressional sta# in August 2012.

* * *

!e purpose of this volume is to make government work 

better, which is the overall mission of the Conference. For agency 

general counsels, congressional sta#, executive o"cials, and 

members of the judiciary, this is the place to broaden understanding 

of how agencies are organized. For those involved in reorganization 

and reform of administrative agencies, it will be a treasure trove of 

sources and ideas. It does not answer all questions, of course, but it 

answers many, including some that readers may not even have been 

asking. It is the latter kind of answers that o&en lead reformers to 

innovative and creative solutions, to “imagine another reality” in 

!omas Mann’s words.

I am proud of the many e#orts that produced this work, 

and I commend it to all who are committed to understanding and 

improving the administrative process.

Paul R. Verkuil
iv

About the Authors

David E. Lewis is the William R. Kenan, Jr. Professor of 

Political Science at Vanderbilt University, where he serves as codirector of the Center for the Study of Democratic Institutions. He 

is the award-winning author of two books, Presidents and the Politics 

of Agency Design (Stanford University Press, 2003) and !e Politics 

of Presidential Appointments: Political Control and Bureaucratic 

Performance (Princeton University Press, 2008). Prof. Lewis is also 

the author of numerous articles on American politics and public 

sector management performance. His work has been translated into 

Japanese and Spanish and has been written up in Nature, the New 

York Times, and the Washington Post. Prof. Lewis holds a Ph.D. in 

political science from Stanford University. 

 

Jennifer L. Selin is a Ph.D. student in political science at 

Vanderbilt University. Ms. Selin’s current projects examine how 

di#erences in internal features of administrative agencies importantly 

and predictably in$uence the extent of political control exercised 

by the President and Congress. Her research has been presented at 

national political science meetings and published in the American 

Journal of Political Science. Ms. Selin also holds a J.D. from Wake 

Forest University and practiced administrative law prior to joining 

Vanderbilt’s Department of Political Science.
v

Acknowledgments

!e authors would like to thank Jayne Cornwell and the 

Center for the Study of Democratic Institutions at Vanderbilt 

University for material support and Allison Archer, Ted Briggs, Evan 

Haglund, John Hudak, Gbemende Johnson, and Mark Richardson 

for dedicated research assistance. We thank participants in a meeting 

hosted by the House Judiciary Committee on August 14, 2012 for 

helpful feedback and comments. We would like to particularly 

thank Preeta Bansal, David Barron, Ronald Cass, Clinton Brass, 

Marshall Breger, Lisa Bressman, Reeve Bull, Maeve Carey, MarianoFlorentino Cuéllar, Gary Edles, Gretchen Jacobs, Je#rey Lubbers, 

Patrick Patterson, David Pritzker, Harold Relyea, Alasdair Roberts, 

Ed Rubin, Jonathan Siegel, Peter Strauss, Paul Verkuil, and Matthew 

Lee Wiener for their helpful comments. !ey saved us from many 

errors. Any errors that remain are our own.
vi
vii

Table of Contents

CHAIRMAN’S FOREWORD........................................................................................ii

ABOUT THE AUTHORS..............................................................................................iv

ACKNOWLEDGMENTS...............................................................................................v

PART I: INTRODUCTION............................................................................................1

A. Need for !is Report..................................................................................................2

B. Methodology................................................................................................................5

C. Structure of !is Report............................................................................................8

PART II: WHAT IS THE FEDERAL EXECUTIVE ESTABLISHMENT?................9

A. What is a Federal Agency?......................................................................................13

B. What !is Report Omits..........................................................................................17

PART III: OVERVIEW OF THE FEDERAL EXECUTIVE ESTABLISHMENT...19

A. Executive O"ce of the President...........................................................................20

1. Current Structure of the EOP..................................................................................22

2. Controversies—Growth and “Czars”......................................................................28

B. Executive Departments............................................................................................32

1. Executive Departments and Other Executive Agencies Compared..................39

2. !e Structure of Executive Departments..............................................................40

.

3. Variation in the Number of Employees and Political Appointees......................45

C. Independent Agencies..............................................................................................46

1. What is an Independent Agency?...........................................................................48

2. Independent Administrations.................................................................................51

3. Independent Commissions.......................................................................................55
viii

4. Government Corporations and Government-Sponsored Enterprises (GSEs)..60

5. Other Forms of Government Agency: Non-pro%ts and Regional Agencies.....64

D. Federal Personnel System........................................................................................66

1. History and Trends...................................................................................................66

2. Modern Personnel System.......................................................................................81

PART IV: THE CREATION AND DESIGN OF FEDERAL AGENCIES...............91

A. Why a New Agency Rather !an Existing Agencies?.........................................93

B. Agency Reorganization and Termination..............................................................95

C. Why do Federal Agency Designs Di#er?..............................................................97

1. Insulating Agencies from the President.................................................................98

2. Insulating Agencies from Congress......................................................................116

3. Other Key Structural Features...............................................................................122

CONCLUSION............................................................................................................134

APPENDIX A-1: LIST OF AGENCIES – BY AGENCY NAME...........................A-1

APPENDIX A-2: LIST OF AGENCIES – BY ABBREVIATION...........................A-5

APPENDIX B. SENATE COMMITTEES CONFIRMING AGENCY 

NOMINEES.................................................................................................................A-9

APPENDIX C. AGENCY STRUCTURE CODEBOOK......................................A-13
ix

List of Tables

Table 1. Agencies in the Executive O"ce of the President.......................................25

Table 2. Executive Departments in the United States................................................36

Table 3. Bureaus in Executive Departments With Fixed Terms for Presidentially

Appointed Bureau Chiefs..............................................................................................43

Table 4. Characteristics of Multi-Member Bodies with Fixed Terms......................52

Table 5. Overview of Agencies Outside the Executive Departments......................54

Table 6. Single-headed Administrations Outside the Executive Departments with 

Fixed Term Appointments............................................................................................56

Table 7. Agency-Speci%c Personnel Systems..............................................................76

Table 8. Statutory Limitations on the Types of Persons Who Can Be Nominated as

Department or Independent Agency Heads by the President...............................103

Table 9. Boards or Commissions Whose Membership the President Does Not 

Fully Select....................................................................................................................104

Table 10. Limitations on the President’s Removal Power in Independent 

Agencies........................................................................................................................108

Table 11. Agencies with Explicit Double “For Cause” Protections........................109

Table 12. Chair Selection and Retention Rules for Multi-Member Bodies..........110

Table 13. Agencies Excluded from OMB Review of Budgets, Rulemaking, and 

Legislation....................................................................................................................114

Table 14. Agency Statutes Providing Sources of Funding Other than 

Appropriations.............................................................................................................119

Table 15. Agencies and Bureaus Completely Exempt from Appropriations........120

Table 16. Government-Wide Position Mandates (CFO, CIO, IG)........................126

Table 17. Agencies Subject to the Sunshine Act.......................................................127
x

Table 18. Agencies With Authorizing Statutes !at Require Prior Approval 

by Other Agency or Congress for Certain Actions.................................................129

Table 19. Agencies with Adjudicatory Authority.....................................................130

Table 20. Details of Federal Agencies’ Rulemaking Activities................................132
xi

List of Figures

Figure 1. Expansion of Federal Merit System Coverage: Percentage of Federal 

Jobs in Federal Merit System, 1883-1952....................................................................69

Figure 2. Total Number of Federal Government Appointees and Percentage 

Appointed, 1960-2008...................................................................................................73

Figure 3. Simpli%ed Depiction of Current Federal Civilian Personnel System......88

1

Part I

Introduction

!is report describes the agencies of the federal executive 

establishment1 and their diverse characteristics, motivated by 

the belief that a comprehensive examination of the executive 

establishment will aid in e#orts to pinpoint problems and clarify the 

consequences of di#erent design choices for agency performance. 

It is written as a resource for members of Congress and their sta#s, 

agency o"cials, and the general public. !e report describes the 

diversity of federal agencies, their place in the executive establishment 

and structural characteristics, and how these features matter for 

political control and agency performance. Perhaps the most famous 

review of executive organization in United States history, the report 

of the President’s Committee on Administrative Management 

(commonly referred to as the Brownlow Committee), described how 

the executive establishment had developed “without a plan or design 

like barns, shacks, silos, tool sheds, and garages of an old farm.”2 !e 

old farm metaphor, while a better characterization of the New Deal 

executive establishment than the current one, is useful. !is report 

is intended to be like a map that marks the di#erent buildings in 

relation to one another and to the farm. It provides details about 

the di#erent uses and designs of the buildings, how the farm has 

developed, and how all the buildings relate together. !e report 

describes the evolution of the current executive establishment, looks 

backward to understand what now exists, and analyzes trends to see 

what may be coming.

1. !is report uses the term federal executive establishment rather than executive 

branch. !is choice re$ects the fact that numerous federal agencies do not %t neatly 

in the executive branch. !ey have been created to be outside the direct control of 

the chief executive, and to a lesser extent Congress, and many push the boundaries 

of what is considered a federal agency. See S. Comm. on Governmental

Affairs, 96th Cong., The Federal Executive Establishment: Evolution

and Trends (Comm. Print 1980) (report authored by Ronald C. Moe of the 

Congressional Research Service) [hereina&er Moe Report]. See, infra, Part II for 

further discussion.

2. President’s Committee on Administrative Management: Report of the

Committee with Studies of Administrative Management in the Federal

Government 32 (1937) [hereina&er President’s Comm. on Admin. Mgmt.]. 
2

A. Need for 5is Report

A report describing the contours of the executive 

establishment is particularly useful now since some of the largest 

debates in politics in the two years leading up to the 2012 election 

have been about structural issues—the creation of the Consumer 

Financial Protection Bureau (CFPB) within the Federal Reserve 

System;3 the President’s proposal to resuscitate presidential 

reorganization authority;4 proposals by candidates for elected 

o"ce to reform substantially or eliminate whole departments and 

agencies.5 Any e#ort to think holistically about the structure of the 

executive establishment must begin at a fundamental level with an 

authoritative accounting of federal governmental units and how they 

are organized. 

Part of the importance of these debates stems from the 

recognition that the structures of federal agencies, from their location 

to features of their internal design and reporting requirements, 

partly determine who has in$uence over non-statutory policy 

decisions and how well federal agencies perform in carrying out 

3. 12 U.S.C. § 5491 (2012).

4. Press Release, O"ce of the Press Secretary, White House, President Obama 

Announces Proposal to Reform, Reorganize, and Consolidate Government (Jan. 

13, 2012), available at http://www.whitehouse.gov/the-press-o"ce/2012/01/13/

president-obama-announces-proposal-reform-reorganize-and-consolidate-gov 

(accessed September 3, 2012).

5. Ed O’Keefe, What do the Departments of Commerce, Education and Energy 

!ink of Rick Perry’s Plan?, Wash. Post, November 10, 2011, available at http://

www.washingtonpost.com/blogs/federal-eye/post/what-do-the-departmentsof-commerce-education-and-energy-think-of-rick-perrys-plan/2011/11/10/

gIQAXiSe8M_blog.html (accessed September 3, 2012).
3

statutorily mandated responsibilities.6 Agency design choices also 

re$ect national priorities. Structural choices serve to upgrade some 

matters for government attention and downgrade others. Whether 

a program is placed higher or lower in the hierarchy of an agency or 

whether an agency is an orphan in a larger agency with a decidedly 

di#erent mission may determine what government does and how 

well it does it. Agency structure determines who gets to make 

decisions and how well those decisions will be implemented. It 

determines whether agencies will be responsive to the White House, 

Congress, or key groups and who has access to decisionmakers. 

!is is important both when there is broad agreement about what 

course agencies should pursue and important disagreements among 

the President and members of the House and Senate. !is report 

describes these structures and their e#ects.

!ere is currently no authoritative treatment of the structure 

and organization of the federal executive establishment. !e last 

e#ort to create such a treatment was in 1980 when Dr. Ronald C. 

Moe of the Congressional Research Service produced !e Federal 

Executive Establishment: Evolution and Trends at the request of the 

Senate Committee on Governmental A#airs.7 However, much has 

6. For recent treatments about how the structure of federal agencies in$uences 

both policy and performance, see, for example, B. Dan Wood and John Bohte, 

Political Transaction Costs and the Politics of Administrative Design, 66 J. Pol.176 

(2004); David E. Lewis, Presidents and the Politics of Agency Design: 

Political Insulation in the United States Government Bureaucracy, 

1946-1997 (2003) [hereina&er Lewis, Agency Design]; Peri E. Arnold, Making

the Managerial Presidency: Comprehensive Reorganization Planning, 

1905-1996 (2nd ed. 1998); Harold Seidman, Politics, Position, and Power: 

The Dynamics of Federal Organization (1998); Terry M. Moe, !e Politics 

of Bureaucratic Structure, in Can the Government Govern? (J.E. Chubb and 

P.E. Peterson eds., 1989) [hereina&er Moe, Bureaucratic Structure]; Mathew D. 

McCubbins, Roger Noll & Barry Weingast, Structure and Process, Politics and 

Policy: Administrative Arrangements and the Political Control of Agencies, 75 

Va. L. Rev. 431 (1989); Herbert Emmerich, Federal Organization and

Administrative Management (1971).

7. Moe Report, supra note 1. 
4

changed since 1980.8 Admirable projects have subsequently described 

di#erent components of the executive establishment, but no works 

replicate the comprehensive view of this earlier work.9 Each year the 

Government Printing O"ce publishes the United States Government 

Manual,

10 which is the o"cial handbook of the federal government. 

Yet, the Manual is not written to provide information systematically 

8. !ese changes encompass bureaucratic organization, oversight, and personnel. 

!e structure of the bureaucracy has changed; new units have been added to the 

federal executive establishment and many other units have been substantially 

reorganized. For example, Congress elevated the Veterans Administration to an 

executive department and created the Department of Homeland Security. !e 

Civil Aeronautics Board was eliminated and the Social Security Administration 

was removed from the Department of Health and Human Services. !e %nancial 

regulatory apparatus has been completely revamped twice in response to the 

Savings and Loan Scandal and the economic crisis of 2008. In addition, the 

diversity in the federal bureaucracy has increased as Congress has added to the 

executive establishment agencies with unusual structural features such as funding 

autonomy. !e development of more sophisticated congressional oversight 

techniques such as the imposition of complicated reporting relationships with 

other agencies and Congress illustrates a congressional reaction to the complexity 

of the federal executive establishment. Congress has enacted legislation aimed 

at improving congressional monitoring and economy and e"ciency in federal 

management through government-wide mandates. Finally, there also have been 

changes in the executive establishment’s personnel system. Across the board, the 

President and Congress have increased the number of appointees and relaxed civil 

service rules by experimenting with pay for performance and devolving personnel 

authority to agencies. !e composition of the federal workforce is changing so that 

contract workers perform an increasingly large percentage of agency work. Just 

as the federal executive establishment has developed since 1980, researchers have 

also learned a lot about agency design and its e#ects on outputs and performance. 

Researchers have identi%ed di#erent features of agency design and how di#erent 

design choices enhance or reduce the in$uence of di#erent political actors. See

William G. Howell and David E. Lewis, Agencies by Presidential Design, 64 J. 

Pol. 1095 (2002); Lewis, Agency Design, supra note 6; Nolan McCarty, !e 

Appointments Dilemma, 48 Am. J. Pol. Sci. 413 (2004); McCubbins et al., supra

note 6; Moe, Bureaucratic Structure, supra note 6; Wood and Bohte, supra note 6.

9. Kevin. R. Kosar, Cong. Research Serv., RL30365, Federal Government

Corporations: An Overview (June 8, 2011) [hereina&er Kosar, Gov’t

Corp.]; Marshall J. Breger and Gary J. Edles, Established by Practice: !e !eory 

and Operation of Independent Federal Agencies, 52 Admin. L. Rev. 1111 (2000); 

but see Kirti Datla and Richard L. Revesz, Deconstructing Independent Agencies 

(And Executive Agencies) (NYU School of Law, Public Law Research Paper No. 

12-44, 2012) (forthcoming Cornell L. Rev. 2013) [hereina&er Datla and Revesz, 

Deconstructing Independent Agencies].

10. E.g., Nat’l Archives & Rec. Admin., The United States Government

Manual (2011) [hereina&er NARA, Gov’t Manual].
5

on the structure and design of federal agencies.11 Every four years 

congressional committees with jurisdiction over federal personnel 

policy publish the Plum Book, but this document is designed to help 

the President and Congress make a careful evaluation of positions 

available for political appointment, rather than to describe the 

structure of the executive establishment.12

B. Methodology

A team of researchers worked over several months to provide 

the materials that are the basis of this report. At least two researchers 

read through the portions of the U.S. Code authorizing each federal 

department and agency.13 Researchers noted statutory features of 

each agency along with a statutory reference for each feature. A total 

of 55 statutory characteristics of agencies were tracked for the 10 

components of the Executive O"ce of the President (EOP), the 15 

11. !e Government Manual details agency structure in simple organization charts 

and agency descriptions that are limited to a small number of characteristics. 

Not all agency entries include the same design details, and the Manual does not 

provide many important details about agency structure such as %xed terms, term 

lengths, and the number of appointees. See id.

12. E.g., Staff of S. Comm. on Homeland Sec. & Gov’t Affairs, 110th Cong., 

Policy and Supporting Positions (Comm. Print 2008), available at http://

www.gpo.gov/fdsys/pkg/GPO-PLUMBOOK-2008/pdf/GPO-PLUMBOOK-2008.

pdf [hereina&er 2008 Plum Book].

13. Each researcher on the team was assigned approximately 15 agencies to research. 

Each researcher on the team found the original public law that established the 

agency and that law’s corresponding updated section in the U.S. Code. Once each 

researcher completed coding each agency’s statute, he or she sent it to the team 

lead. !e team lead also coded the statutes for each of the agencies. A&er the team 

lead received the completed coding from the team, she compared the two coded 

versions of the data for each agency and resolved any discrepancies in the coding. 

!e only exception to this pattern was for agencies that were the responsibility of 

the team lead. 
6

executive or “Cabinet” departments,14 and 81 independent agencies.15 

Researchers noted the location of each agency in relation to elected 

o"cials and each other (e.g., EOP, executive department, independent 

agency), features of agency governance (e.g., commission, %xed 

terms, number of political appointees), agency powers (e.g., power 

to raise funds, independent litigating authority), and aspects of 

agency political oversight (e.g., OMB and congressional reporting 

requirements, congressional committee jurisdiction).16 A brief 

codebook for the data is included in Appendix C. Full data, including 

data in accessible formats and statutory references for all coding, are 

publicly available from the Administrative Conference of the United 

States.

14. !e President’s cabinet is an informal institution traditionally comprised of 

the secretaries of the executive departments and other o"cials the President 

may designate. In this report, the term “cabinet department” is shorthand 

for one of the 15 executive departments that comprise the primary units of 

executive administration. !ey are headed by departmental secretaries and are 

so denominated in law. Ronald C. Moe, Cong. Research Serv., RL 30673, The President’s Cabinet: Evolution, Alternatives, and Proposals for

Change (2000) [hereina&er Moe, President’s Cabinet].

15. !is report follows a variation of the de%nition of “agency” in the Administrative 

Procedure Act (APA), see 5 U.S.C. § 551(1), to identify all federal entities outside 

the legislative and judicial branches which are headed by one or more Senatecon%rmed appointees. 

16. To the extent practicable, the team lead checked the %nal justi%cations with 

existing academic research on agency structure. Any discrepancies between the 

team’s coding and existing research are footnoted in supplementary materials. If 

discrepancies exist, they are o&en the result of the team using the provisions of 

the statutory law described above to code the structural features of the agency. By 

relying on the portions of the United States Code related to agency structure, it is 

possible that other statutory provisions outside of the establishing statute impose 

additional requirements on the agency or specify additional structural features of 

the agency. In addition, not all structural features are detailed in statute. Many are 

determined by agency action. Agencies promulgate regulations to implement law 

and clarify areas where statutory law is unclear. For example, many commission 

statutes are silent on the question of what constitutes a quorum in an agency, yet 

such rules are necessary for the functioning of the agency. Agencies subsequently 

clarify this uncertainty in regulation or bylaw. Finally, case law sometimes gives 

agencies features that di#er from what is in a statute. For example, the statute 

authorizing the Securities and Exchange Commission does not include “for cause” 

protections for the removal of commissioners. Yet, the courts have recognized the 

existence of “for cause” protections in the agency even absent explicit mention in 

statute. See, e.g., Wiener v. United States, 357 U.S. 349 (1958); S.E.C. v. Blinder, 

Robinson, & Co., 855 F.2d 677 (10th Cir. 1988), cert. denied, 488 U.S. 869 (1988). 

!e choice to rely on statutory law was made for the sake of consistent coding 

across all agencies and to capture the agreed-upon structural arrangement made 

between Congress and the President.
7

Mapping the federal executive establishment is an immense 

task, encompassing history, law and political science. !e topics 

are varied, from the federal personnel system to political oversight 

of administration. Each of these topics has been a fertile research 

area for some time. !e purpose of the report is not to replicate 

or redo the important work done by Congressional Research 

Service scholars, Government Accountability O"ce studies, or 

academics. Rather, this work borrows heavily from existing sources 

in mapping out the executive establishment, identifying key trends, 

and collecting for the %rst time data on key ways that agencies di#er 

from one another and relate together. In the same way that a map of 

the United States cannot provide detail about how to get around in 

downtown San Francisco, this report cannot delve deeply into some 

important and complex areas of government and administration. 

!is does not suggest that a map of the United States or a street map 

of San Francisco is not useful. Rather, the purposes of the maps are 

di#erent. !us, this report takes a “map of the United States” level 

analysis of the federal executive establishment and, where possible, 

refers readers to other works more akin to street maps.

In creating such a map, it is impossible to avoid some 

micro-level debates of law and policy. Seemingly simple decisions 

such as what counts as an agency and whether the relevant details 

of agency design are statutory characteristics or operations in 

practice are complicated questions of law and policy. For reasons 

that are described below, this report de%nes federal agencies as 

federal executive instrumentalities headed by one or more political 

appointees nominated by the President and con%rmed by the Senate. 

!e report focuses primarily on agency authorizing statutes in its 

description of the federal executive establishment. !ese choices 

will be unsatisfying to some, and this is natural given that issues of 

law (i.e., is this the right legal de%nition?) and policy (i.e., is this 

useful?) are the subject of disagreement. !e report naturally will 

be more appropriate and useful for some tasks than others, and its 

existence will hopefully spur related work and nicely complement 

existing sources.
8

C. Structure of 5is Report

!e report is divided into two main sections. !e %rst 

section presents an overview of the federal executive establishment. 

It describes the agencies designed to be directly responsive to the 

President and Congress and those designed in various ways to be 

insulated from the direct in$uence of elected o"cials. !e report 

provides historical context to explain how the executive establishment 

has changed over time and the main ways that agencies di#er from 

one another. !is section also describes the personnel system that 

governs the employees who populate the agencies of government. 

!is section of the report notably highlights the transformation of 

the personnel system from one uni%ed system to multiple di#erent 

systems. It also describes the increasing diversity of agency types and 

structures in the executive establishment. !e second section details 

how agencies get created, reorganized, and terminated. It provides 

extensive details on the di#erent features of agency design that 

distinguish among agencies. It focuses speci%cally on those features 

that insulate agencies from presidential and congressional control. 

!e report concludes with a brief discussion of the changes in the 

executive establishment and suggests a broad reconsideration of the 

federal personnel system and design of the executive establishment.
9

Part II

What is the Federal Executive Establishment?

!e United States Constitution provides for three separate 

branches. Under textbook understandings of this structure, the 

legislative branch creates laws, the executive branch executes the laws, 

and the judicial branch adjudicates disputes and preserves %delity 

to the laws and Constitution. !e Constitution does not, however, 

prescribe such a strict separation of powers. !e federal government 

structure is better understood, in the words of Richard Neustadt, as 

a system of “separated institutions sharing power.”17 !e President 

has a constitutional role in the legislative process through the 

President’s power to recommend legislation, veto legislation (subject 

to congressional override), and provide information to Congress on 

the state of union. Congress oversees the execution of laws since it 

creates and funds federal programs and agencies. Congress con%rms 

nominees and determines how lower level o"cials will be selected. 

It also conducts hearings and investigates the actions of public 

o"cials. Judges adjudicate the actions of legislators and executive 

branch o"cials. !e Constitution provides for a system where all 

three branches supervise and direct the activities of the agencies of 

government.

While executive branch agencies are responsible for carrying 

out most federal laws, employees in the legislative and judicial 

branches also do so. For example, the legislative branch includes 

what in common language would be called agencies as well, such 

as the Government Accountability O"ce (GAO), the Congressional 

Budget O"ce, and the Library of Congress, in addition to legislators, 

their sta#s, and other o"cers of the legislature. Congress created 

most but not all of these agencies to serve the legislature as sta#

17. Richard E. Neustadt, Presidential Power and the Modern Presidents: 

The politics of leadership from Roosevelt to Reagan 29 (1990); see 

also Lloyd M. Short, The Development of National Administrative

Organization in the United States 14 (1923).
10

agencies.18 For example, the GAO’s self-described mission is to serve 

Congress by investigating how the U.S. government spends federal 

revenues.19 !e judicial branch includes the Administrative O"ce of 

the United States Courts, the Federal Judicial Center, and the United 

States Sentencing Commission, in addition to the courts and their 

judges and o"cers.20 !ese units provide administrative support for 

the federal courts, o#er the basic management support for the court 

system, and supply education and research about the court system 

and sentencing principles and guidelines. On the other hand, 

some administrative units provide support for all three branches 

of government. !e Government Printing O"ce is responsible for 

publishing o"cial information for and about all three branches. 

!e U.S. Botanic Garden, another instrumentality of the legislative 

branch, is a national botanic garden that “informs visitors about the 

importance, and o&en irreplaceable value, of plants to the well-being 

of humans and to earth’s fragile ecosystems.”21 Neither agency selfevidently needs to be located in the legislative branch.22

!e bulk of federal administration is housed in the 

executive branch. Article II of the Constitution provides that “the 

executive power shall be vested in a President of the United States 

of America,”23 and historically the functions of government have 

been carried out by federal employees working either in one of the 

executive departments or in scores of independent agencies (i.e., not 

a component of the Executive O"ce of the President or one of the 

executive departments) housed in the executive branch, all overseen 

18. !e legislative branch also includes the Architect of the Capitol, Botanic 

Garden, Copyright O"ce, Medicaid and CHIP Payment and Access Commission, 

Open World Leadership Center, and Stennis Center for Public Service.

19. See U.S. Government Accountability O"ce, About GAO: Making a Di"erence 

for Congress and the Nation (accessed July 6, 2012), available at http://www.gao.

gov/about/gao_at_a_glance_2010_english.pdf (accessed July 6, 2012).

20. See http://www.uscourts.gov/FederalCourts.aspx.

21. United States Botanic Garden, About Us, available at http://www.usbg.gov/

about­us (accessed July 6, 2012).

22. Congress, there is no reason why program evaluation of this type is necessarily 

a legislative activity. !is begs the question of why this responsibility is housed in 

an agency in the legislative branch. !e obvious answer is that Congress does not 

trust the executive branch to evaluate its own agencies and programs. Allen Schick, 

Congress and the ‘Details’ of Administration, 36 Pub. Admin. Rev. 521 (1976).

23. U.S. Const. art. II, § 1.
11

and supervised by the three branches.24 Some of the agencies created 

outside the executive departments were referred to by the Brownlow 

Committee as the “headless fourth branch of government”25 because 

they are designed to be insulated from presidential and, to a lesser 

extent, congressional control.

Some agencies do not %t comfortably into any of the three 

branches. Rather, they have been designed to be insulated from 

the control of elected o"cials. Many organizations connected to 

the federal government, such as federally chartered non-pro%ts 

or mixed-ownership government corporations, even stretch the 

de%nition of an agency. While entities designed to be more or less 

insulated from the President or Congress are perhaps less responsive 

day-to-day to the directions of these elected o"cials, this does not 

imply that they are not democratically accountable. !ese entities 

still must comply with the law as it has been enacted and are subject 

to the investigations and inquiries of the two branches as well as 

additional legislation and informal pressure.

!us, to capture adequately the organizational breadth of 

our federal governmental system, this report uses the term “federal 

executive establishment” (or “executive establishment”), which is in 

keeping with the terminology used in the 1980 Moe Report.

26 !e 

term “federal executive establishment” is used here in the broadest 

sense both to re$ect the diversity in federal organizations, as well 

as the fact that many federal entities do not neatly reside in the 

executive branch. 

24. !e executive departments are de%ned by statute. See 5 U.S.C. § 101 (2012) 

(de%ning the executive departments as the Departments of State, Treasury, 

Defense, Justice, Interior, Agriculture, Commerce, Labor, Health and Human 

Services, Housing and Urban Development, Transportation, Energy, Education, 

Veterans’ A#airs, and Homeland Security). What constitutes an “independent” 

agency is the subject of some disagreement with which the report deals.

25. President’s Comm. on Admin. Mgmt., supra note 2, at 40.

26. Moe Report, supra note 1.
12

In 2012 the federal executive establishment employed 

approximately 2.85 million civilians27 in either a part or full-time 

capacity, excluding an unknown number of persons working in the 

intelligence agencies. By comparison, the legislative branch employed 

30,900 persons and the judicial branch 32,000.28 !e military services 

27. !e data for the federal executive establishment are calculated starting with 

data from the Central Personnel Data File (CPDF). According to CPDF data on 

the O"ce of Personnel Management’s FedScope website, the federal executive 

establishment includes 2.13 million federal civilian employees. !is %gure, 

however, excludes foreign nationals working overseas (40,000), Public Health 

Service Commissioned O"cer Corps (6,500), and the Federal Reserve (2,331). 

In addition, it excludes Foreign Service employees (15,000), the White House 

O"ce (including Executive Residence and O"ce of the Vice President) (534), 

the Postal Regulatory Commission (73), the Tennessee Valley Authority (12,883), 

the intelligence agencies and the U.S. Postal Service (645,950). For the purposes 

of counting federal civilian employees, it bears noting that the foregoing totals 

exclude government contractors, employees of federal entities that are not sta#ed 

by federal employees (e.g., federally sponsored non-pro%ts), and what OPM refers 

to as “non-appropriated fund employees.” O"ce of Personnel Management. Central 

Personnel Data File, available at www.fedscope.opm.gov (accessed July 6, 2012) 

[hereinafter OPM, FedScope]; O"ce of Personnel Management, FedScope Data 

De#nitions: About EHRI-SDM (July 14, 2011), available at http://www.fedscope.

opm.gov/datadefn/DataDe%nitions.pdf. To the OPM CPDF (FedScope) data, 

%gures for omitted federal employees noted above were added by referencing other 

sources. See U.S. General Accounting O"ce, GAO/NSIAD-95-50FS, Overseas 

Presence: Sta$ng at U.S. Diplomatic Posts (1994), available at http://www.gao.gov/

assets/90/89820.pdf (data on foreign nationals); http://www.state.gov/documents/

organization/177397.pdf (FY 2011 annual report providing data on the Foreign 

Service); Kennon H. Nakamura, Cong. Research Serv., RL34668, Proposals

for a New Foreign Service Compensation System in the 110th Congress

3 n.6 (2008), available at http://www.fas.org/sgp/crs/row/RL34668.pdf (data on 

Foreign Service personnel working in agencies other than the State Department); 

Office of Mgmt. & Budget, Exec. Office of the President, Budget of the

United States Government, Fiscal Year 2013, 9 (2012), available at http://

www.whitehouse.gov/sites/default/%les/docs/2013-eop-budget1.pdf (accessed 

July 10, 2012) (data for White House O"ce); Email from Michael Ravnitsky, Postal 

Regulatory Service, to David E. Lewis, William R. Kenan, Jr. Professor of Political 

Science, Vanderbilt University (July 6, 2012) (on %le with authors) (data for Postal 

Regulatory Commission); U.S. Dep’t of Health and Human Serv., U.S. Public Health 

Service Commissioned Corps, available at http://www.usphs.gov/ (accessed August 

18, 2012) (data for the Public Health Service); Email from Federal Reserve Board 

to Mark Richardson, Graduate Student, Political Science, Vanderbilt University 

(July 12, 2012) (on %le with authors) (data for the Federal Reserve).

28. Curtis W. Copeland, Cong. Research Serv., RL34685, The Federal

Workforce: Characteristics and Trends (2011) (referencing data for the 

legislative and judicial branch employment from 2009) [hereina&er Copeland, 

Federal Workforce]; United States Courts, Administrative O$ce of the 

United States Courts, available at http://www.uscourts.gov/FederalCourts/

UnderstandingtheFederalCourts/AdministrativeO"ce.aspx (accessed July 6, 

2012).
13

are comprised of approximately 1.41 million persons.29 In addition 

to full and part-time federal employees, private contract employees 

paid by the federal government also perform substantial work for 

the federal government, as do state and local employees and other 

workers whose salaries are paid by federal grant dollars.30

A. What is a Federal Agency?

Determining what constitutes a federal agency is not an easy 

task, but a necessary one if one wants to map the federal executive 

establishment. While it is clear that agencies exist within the 

Executive O"ce of the President, within the executive departments, 

and outside of the executive departments, cataloging administrative 

agencies is di"cult because so many varying de%nitions abound. 

Congress de%nes what an “agency” is in relation to particular laws 

rather than provide one overarching de%nition. For example, the 

Administrative Procedure Act (APA), which governs most federal 

agencies, provides one of the broadest and most widely-used 

de%nitions for administrative agencies. !e APA provides that 

“agency” means:

each authority of the Government of the United 

States, whether or not it is within or subject to 

review by another agency, but does not include 

29. Department of Defense, Statistical Information Analysis Division, available at 

http://siadapp.dmdc.osd.mil/personnel/MILITARY/history/hst1112.pdf 

(accessed August 18, 2012).

30. !e federal government does not systematically keep track of the number of 

contract employees. One source estimated the number of contract employees at 

7.6 million. See Paul C. Light, !e New True Size of Government, (NYU Wagner 

Graduate School of Public Service, Organizational Performance Initiative, No. 2, 

2006) [hereina&er Light, New True Size of Gov’t], available at http://wagner.nyu.

!"#$%!&'(&)*+,!$-.!/$0&#!1234!5%"'. !e Taxpayers Right to Know Act (H.R. 

3609), considered by the 112th Congress, would require agency heads to track 

the number of federal employees and contractors required to implement every 

federal program and service in their agency. Eric Katz, !e Price Tag for a Proposal 

to Root Out Program Duplication: $100 Million, Gov’t Executive, July 5, 2012, 

available at http://www.govexec.com/management/2012/07/price-tag-proposalroot-out-program-duplication-100-million/56643/. To measure the true size of 

government, one would also want to measure the number of employees paid by 

federal grants, which Light put at 7.6 million in 2005. See Light, New True Size of 

Gov’t.
14

the Congress, the courts of the United States, the 

governments of the territories or the possessions 

of the United States, the government of the District 

of Columbia, agencies composed of representatives 

of the parties or of representatives of organizations 

of the parties to the disputes determined by them, 

courts martial and military commissions, military 

authority exercised in the %eld in time of war or in 

occupied territory[.]31

By this de%nition, any instrumentality of government that is not 

otherwise located in the legislative or judicial branch would seem 

to be an agency. Yet, what about an enterprise such as the Federal 

Agricultural Mortgage Corporation that is governed by a board in 

which two thirds of the members are selected by private shareholders 

rather than the President?32 Even more di"cult are cases where 

Congress has created private corporations or venture capital funds. 

!ey pursue public ends as private entities. 

Courts have recognized that the APA’s de%nition of agency 

is not entirely clear,33 and there has been a substantial amount of 

litigation over which government entities fall within the APA’s 

purview.34 Since what constitutes an agency under the APA is 

governed on a case-by-case basis through litigation, there is no 

31. 5 U.S.C. § 551(1) (2012). !e de%nition also excludes functions performed as 

a result of mortgage insurance law.

32. See 12 U.S.C. § 2279aa-2(b)(2) (2012).

33. See, e.g., Soucie v. David, 448 F.2d 1067, 1073 (D.C. Cir. 1971) (“!e statutory 

de%nition of ‘agency’ is not entirely clear, but the APA apparently confers agency 

status on any administrative unit with substantial independent authority in the 

exercise of speci%c functions.”).

34. Most of this litigation involves the Freedom of Information Act (FOIA) and 

the Government in the Sunshine Act. See, e.g., Franklin v. Massachusetts, 505 U.S. 

788 (1992) (the President is not an “agency” subject to the provisions of the APA); 

Citizens for Responsibility and Ethics in Wash. v. O"ce of Admin., 566 F.3d 219 

(D.C. Cir. 2009) (the O"ce of Administration within the Executive O"ce of the 

President is not an agency covered by FOIA); Energy Research Found. v. Def. 

Nuclear Facilities Safety Bd., 917 F.2d 581 (D.C. Cir. 1990) (the Defense Nuclear 

Facilities Safety Board is an “agency” within the meaning of the Sunshine Act); 

Rushforth v. Council of Econ. Advisers, 762 F.2d 1038 (D.C. Cir. 1985) (the Council 

of Economic Advisers is not an “agency” for the purposes of FOIA or the Sunshine 

Act); Nicholson v. Brown, 599 F.2d 639 (5th Cir. 1979) (the de%nition of “agency” 

for the purposes of FOIA is broad enough to encompass military authority).
15

authoritative list of government agencies. Every list of federal 

agencies in government publications is di#erent. For example, 

FOIA.gov lists 78 independent executive agencies and 174 

components of the executive departments as units that comply with 

the Freedom of Information Act requirements imposed on every 

federal agency.35 !is appears to be on the conservative end of the 

range of possible agency de%nitions. !e United States Government 

Manual lists 96 independent executive units and 220 components of 

the executive departments.36 An even more inclusive listing comes 

from USA.gov, which lists 137 independent executive agencies and 

268 units in the Cabinet.37

When Congress creates programs, it most o&en delegates 

responsibility for these programs to a component of an executive 

department or independent agencies of various types. However, the 

recipient of delegated authority need not be a federal agency since 

Congress delegates authority to states, local governments, and private 

sector entities as well. States and local governments help implement 

key federal programs such as Medicaid and No Child Le& Behind. 

Congress empowers private litigants to pursue a public function in 

the enforcement of federal laws by altering economic incentives for 

such behavior and opening up access to federal courts.38 It is clear that 

state and local governments and private sector %rms are not federal 

agencies, but since the 1960s, Congress has delegated authority to 

entities that are neither typical government agencies nor completely 

private organizations or local governments.39 !ese entities take a 

35. Department of Justice, Data, available at http://www.foia.gov/data.html.

36. NARA, Gov’t Manual, supra note 10.

37. United States General Services Administration, Federal Executive Branch, 

available at http://www.usa.gov/Agencies/Federal/Executive.shtml (accessed July 

10, 2012).

38. Sean Farhang, Public Regulation and Private Lawsuits in the American 

Separation of Powers System, 52 Am. J. Pol. Sci. 821 (2008).

39. !e appeal of non-traditional agency structures stems from a number of 

factors. First, these agencies o&en have the patina of a private sector %rm and the 

symbolic sense that they are somehow more e"cient than a government agency. 

!eir use is consistent with management trends popularized in the last two 

decades. Second, these structures avoid the existing rules and regulations attached 

to federal management and also limit presidential and congressional in$uence. 

Kevin R. Kosar, Cong. Research Serv., RL30533, The Quasi Government: 

Hybrid Organizations with Both Government and Private Sector Legal

Characteristics (2011) [hereina&er Kosar, Quasi Gov’t].
16

variety of forms: government-sponsored enterprises (GSEs) such 

as the Federal National Mortgage Association (Fannie Mae), joint 

federal-state regional development agencies such as the Appalachian 

Regional Commission, federally funded research centers such 

as the Rand Corporation, venture capital funds such as OnPoint 

Technologies (Army) and Red Planet Capital (NASA) (which are 

nonpro%ts created by the U.S. Government to invest in companies 

whose products might be of use to the federal government), and 

congressionally chartered nonpro%t organizations such as the 

National Academy of Public Administration. Disentangling which 

of these entities is an “agency” is di"cult, particularly since many are 

wholly or partly owned and directed by private sector actors.40

Given such de%nitional di"culties, the term “federal agency” 

(or “agency”) in this report refers to a clearly delineated set of federal 

entities for which precise contours can be drawn. “Agency,” as used 

here, refers to a federal executive instrumentality headed by one or 

more political appointees nominated by the President and con#rmed 

by the Senate (the instrumentality itself rather than its bureaus, o$ces 

or divisions).41 Entities connected to the government of the District 

of Columbia and international and multi-lateral organizations, 

such as the United Nations or International Monetary Fund, whose 

governance is a shared enterprise between the United States and 

other nations, have been excluded.

40. Of course, Congress also delegates authority to international organizations 

whose governance is shared among nations. !e United States shares governance 

in a number of international organizations, both multi-national (e.g., the United 

Nations, Asian Development Bank) and bilateral (e.g., International Boundary 

Commission, United States and Canada). !ese entities were not evaluated as 

part of the executive establishment for purposes of this report.

41. !e source for Senate-con%rmed positions was the Plum Book. See 2008 Plum

Book, supra note 12. While this report was being written, Congress passed the 

Presidential Appointment E"ciency and Streamlining Act (PAESA) of 2011, 

Pub. L. No. 112-166 (2012) (signed by the President on August 10, 2012). In this 

Act, Congress reduced the number of positions requiring Senate con%rmation by 

more than 160 positions. !is in$uences the total number of Senate-con%rmed 

positions which, in turn, a#ects whether some entities are considered agencies for 

purposes of this report. !e original (pre-Act) list of agencies has been continued 

in this report even though several agencies’ appointees no longer require Senate 

con%rmation, but note in the extended appendix those agencies will no longer have 

Senate-con%rmed appointees as a result of this Act. See also Table 5 (identifying 

some of the agencies outside executive departments whose agency heads no longer 

require Senate con%rmation under PAESA). 
17

B. What 5is Report Omits

6 073/ &!%(&8 *./( '(,#/!/ %&3)*&3.9 (+ 87! 8(% .!*"!&/73%

*+" *,83:383!/ (' *;!+,3!/ 3+ 87! <=!,#83:! >'-,! (' 87! ?&!/3"!+8@

executive departments, and independent agencies  rather than their 

component  bureaus,  divisions,  and  committees.  Inside federal 

agencies are hundreds of bureaus, administrations, divisions, o"ces, 

and committees that are characterized in this report in a general way. 

For purposes of clarity, however, it is important to acknowledge what 

is largely omitted. For example, the General Services Administration 

coordinates and tracks more than 1,000 federal advisory committees 

employing over 70,000 persons.42!e overwhelming majority of these 

committees are attached to speci%c departments and agencies. In 

addition, among federal agencies there are hundreds of interagency 

committees created to facilitate cooperation among agencies on 

policies and issues that are shared across the executive branch.

43

07!/! #+38/ (' 87! !=!,#83:! !/8*A.3/7)!+8 ;!8 .388.! *88!+83(+ 3+ 873/

&!%(&85 07! !=!,#83:! "!%*&8)!+8/ *+" 3+"!%!+"!+8 *;!+,3!/ ;!8

attention primarily as agencies in themselves rather than their sub­

*;!+,9 A#&!*#/ *+" ('-,!/5

6 073/ &!%(&8 /!.'B,(+/,3(#/.9 &!.3!/ %&3)*&3.9 (+ 87! /8*8#8(&9

.*+;#*;! (' *#87(&343+; /8*8#8!/ &*87!& 87*+ *")3+3/8&*83:! %&*,83,!5

2(@ '(& !=*)%.!@ C7!+ 87! &!%(&8 .3/8/ features of agencies such as 

42. See General Services Administration, Federal Advisory Committee Act (FACA) 

Management Overview, available at http://www.gsa.gov/portal/content/104514

(accessed August 22, 2012) (providing background on the implementation of the 

Federal Advisory Committee Act); see also Susan Mo"tt, Making Policy Public: 

Deliberative Bureaucracy in the American State (unpublished manuscript, on %le 

with Brown University) (detailing advisory commissions); Seidman, supra note 6, 

at 197-202 (discussing advisory commissions). 

43. In 1971, 87! ?&!/3"!+8D/ E":3/(&9 F(#+,3. (+ <=!,#83:! >&;*+34*83(+ GE/7

Council)  estimated that there  were  850 interagency  committees. Moe Report, 

supra note 1, at 8. 07!/! ,())388!!/ !)!&;! '&() 87! '*,8 87*8 ;(:!&+)!+8

'#+,83(+/ "( +(8 -8 +!*8.9 3+8( * .3)38!" +#)A!& (' "!%*&8)!+8/ *+" *;!+,3!/5 H(&

!=*)%.!@ 87! I!%*&8)!+8 (' J()!.*+" 2!,#&389@ 87! I!%*&8)!+8 (' E;&3,#.8#&!@

and the Centers  for  Disease Control  are  all  concerned  with the importation  of 

*;&3,#.8#&*. '(("/8#''/5 07!&! *&! 3+8!..3;!+,! *;!+,3!/ *88*,7!" 8( 87! 2!,&!8

2!&:3,!@ I!%*&8)!+8 (' I!'!+/!@ F!+8&*. K+8!..3;!+,! E;!+,9@ *+" H!"!&*. L#&!*#

(' K+:!/83;*83(+5 M7!+ 87! ;(:!&+)!+8 +!!"/ ,((&"3+*83(+ (+ A&(*" %(.3,9 *&!*/

/,*88!&!" *,&(// )#.83%.! "!%*&8)!+8/@ 87! /(.#83(+ 3/ !387!& * ,4*& (& 3+8!&*;!+,9

,())388!!5 07! ,())388!!/ *&! /()!83)!/ ,&!*8!" A9 /8*8#8! *+" (87!& 83)!/

created by executive action.
18

“for cause” protections  from  removal or quorum  requirements  for 

)#.83B)!)A!& A("3!/@ 38 &!.3!/ (+ *;!+,9 *#87(&343+; /8*8#8!/ &*87!&

than  commission  rules,  administrative  common  law,  or  agency 

practice.  !e choice to rely on statutory law was made for the sake 

of consistent coding across all agencies and to capture the agreedupon structural deal made between Congress and the President. 

07! &!.3*+,! (+ /8*8#8(&9 .*+;#*;! 7*/ 87! :3&8#! (' ,()%*&*A3.389

and consistency across agencies, but also has the vice of omitting 

how agencies may be similar or different in practice in some cases. 

07! 2!,#&383!/ *+" <=,7*+;! F())3//3(+ %&(:3"!/ *+ !=*)%.!5

K8/ /8*8#8!/ "( +(8 3+,.#"! !=%.3,38 N'(& ,*#/!O %&(8!,83(+/ *;*3+/8

the  removal  of  commissioners,  but  courts  have  determined  that 

the commissioners have such protections.4466L9 '(,#/3+; (+ C73,7

agencies’ statutes include explicit “for cause” provisions, the report 

does not explain the reality of how commissioner tenure may operate 

in practice. 

6 07! &!%(&8 &!.3!/ %&3)*&3.9@ A#8 +(8 !=,.#/3:!.9@ (+ /8*8#8(&9

differences as a  starting  point  for comparison.  For a few areas of 

interest, notably those relating to OMB review of budgets, legislative 

proposals, testimony, and regulations, the report references OMB

publications to categorize agencies. Researchers also relied on 

outside information in describing which agencies have adjudicatory 

authority and which committees are involved in con%rming agency 

nominees and overseeing agency reports and activities.    Efforts 

to survey all  federal agencies about agency practices and  features 

beyond statutes would be a worthy endeavor but exceeds the scope 

of this report.  All readers of the report are encouraged to remember 

the statutory focus of the report when observing differences across 

agencies.

44. Blinder, 855 F.2d 677 (recognizing implicit “for cause” protection for SEC 

Commissioners because the SEC, as with the FTC, is an administrative body 

created by Congress to carry into e#ect legislative policies).
19

Part III

Overview of the Federal Executive Establishment

!e federal executive establishment is comprised of several 

main parts. It includes the Executive O"ce of the President, the 

executive departments, and independent agencies of various 

types—independent administrations, independent commissions, 

and government corporations and other agencies. By far the most 

signi%cant part is the executive departments. !e vast majority 

of federal employees work in an executive department and most 

federal authority is carried out by an executive department or one 

of its component units. !ese entities may be identi%ed under a 

variety of terms such as agency, bureau, administration, division or 

service. Close to ninety percent of federal personnel work in one of 

15 executive departments.45 !e remainder work in an agency in the 

Executive O"ce of the President (EOP) or some type of independent 

agency. Agencies in the EOP primarily assist the President in carrying 

out constitutional or statutory responsibilities, and most employees 

in these agencies see it as their job to work for the President. !e 

latter category of agency falls outside the executive departments (i.e., 

is not formally a component of one of the 15 executive departments), 

is not subject to the direction of a departmental secretary, and 

o&en includes characteristics that limit presidential and, to a lesser 

extent congressional, in$uence over agency decisionmaking and 

actions.46 !ese “independent” agencies come in a variety of forms: 

administrations, commissions, government corporations, or other 

hybrid agencies.47

!is section reviews the agencies in the di#erent parts of the 

45. Of the federal employees that work in an executive department, over sixty 

percent work in one of three departments—Defense, Veterans A#airs, or 

Homeland Security.

46. As this report will discuss below, there are some independent agencies that 

look very much like executive departments, and some agencies inside executive 

departments with features that insulate them from the control of the President.

47. What constitutes an “independent” agency is the subject of some debate, with 

some scholars focusing on the location of agencies and others relying on structural 

features, particularly “for cause” removal protections, to de%ne an independent 

agency. See infra Part III.C.
20

executive establishment and describes the personnel system that 

de%nes and populates these agencies. Within these agencies there 

are two broad classes of employees governed by di#erent rules for 

selection and removal: 1) political appointees and 2) career civil 

servants. !e former are selected by political o"cials, usually from 

outside the career civil service, and they provide policy direction to 

the agency. !e latter are employees whose hiring, %ring, promotion, 

and demotion are governed by merit and protected by federal law 

and regulation.48

A. Executive O8ce of the President

!e modern executive establishment includes a robust 

constellation of agencies whose primary purpose is to aid the 

President in carrying out the President’s constitutional and statutory 

responsibilities.49 !e development of a statutorily speci%ed sta# for 

the President is a relatively modern phenomenon. Early presidents 

paid for White House sta# from their personal salaries.50 Congress 

did not appropriate money for presidential sta# until 1857.51 

Historically, presidential sta#s were small, comprised of secretaries, 

clerks, stenographers, and messengers. Presidents o&en employed 

relatives or acquaintances to work for them in the White House. 

48. !ere is one primary government-wide civil service system and numerous 

agency-speci%c systems, but all are loosely organized around merit principles. 

Agency-speci%c systems have been added to provide managers more $exibility 

in responding to market pressures for wages and to give them more $exibility in 

managing the workforce.

49. Harold C. Relyea, !e Executive O$ce Concept, in The Executive Office of

the President: A Historical, Biographical, and Bibliographical Guide 3 

(Harold C. Relyea ed., 1997) [hereina&er Relyea, Executive O$ce]. As with other 

categorizations and typologies, there are exceptions. In 1974, Congress established 

the O"ce of Federal Procurement Policy within the O"ce of Management and 

Budget. Yet, this agency was intended to be congressionally oriented and reports 

to Congress. See Moe Report, supra note 1, at 13; Seidman, supra note 6, at 43-44.

50. John P. Burke, The Institutional Presidency 4 (1992). John Hart argues 

that the lump sum provided presidents was actually intended by Congress to 

cover the President’s salary and expenses and that their intention was to pay for a 

small sta#. Over time, however, the distinction between the President’s salary and 

money for the President’s expenses in that lump sum was lost. John Hart, The

Presidential Branch 13-14 (2nd ed. 1995).

51. In 1833, Congress appropriated money for a secretary to help sign land patents 

on the President’s behalf, but Congress did not consider this person as part of the 

President’s sta#. Hart, supra note 50, at 17.
21

Dramatic changes in the nation expanded the role and size 

of the national government and the management responsibilities of 

the President. A combination of factors including, but not limited 

to, the mobilization for the Civil War, industrialization, massive 

immigration, technological change, and widespread pressure to 

lessen the impacts of economic booms and busts and systemic 

disruptions to major national systems (transportation, economy, 

trade) generated pressure for an expanded scope of activities for 

the national government. Public pressure for greater government 

involvement resulted in new federal programs and new agencies 

and federal employees to implement them. !e small national 

government in 1860, comprised of six executive departments and a 

handful of minor agencies, had grown to ten executive departments 

and a score of powerful independent agencies by 1920.52 !e 

expansion of the national government generated new di"culties in 

the federal management of agencies and spending. With the nudging 

of presidents, Congress granted the President increasing resources 

to manage the executive branch and other responsibilities.53 In 1921 

Congress enacted the Budget and Accounting Act of 1921, which 

created the Bureau of the Budget.54 While formally housed in the 

Department of the Treasury, during the period from 1921 to 1939, 

presidents used the bureau to collect and manage budget estimates 

from federal agencies and coordinate activities of the departments 

and agencies.55

!e creation of a permanent professional sta# formally 

attached to the presidency did not come until 1939.56 In response to 

the Great Depression, President Roosevelt and Congress embarked on 

a dramatic New Deal domestic program that substantially expanded 

52. Among the independent agencies established during this period were the Civil 

Service Commission, the Interstate Commerce Commission, the Federal Reserve, 

and the Federal Trade Commission. 

53. Moe Report, supra note 1, at 4-5; Louis Fisher, Presidential Spending

Power 31 (1975).

54. Pub. L. 67-13, 42 Stat. 20 (1921).

55. Short, supra note 17, at 437. !e President was provided the ability to select 

the director and assistant director of the Bureau of the Budget without Senate 

con%rmation. Hart, supra note 50, at 32.

56. See generally Matthew J. Dickinson, Bitter Harvest: FDR, Presidential

Power and the Growth of the Presidential Branch (1996) (providing an 

excellent history of the growth of presidential sta"ng during this period).
22

federal employment and the federal executive establishment. Scores 

of new agencies were created to put the New Deal program into 

e#ect. Between 1933 and 1944, federal employment exploded from 

603,587 to 3,332,356 workers.57 With New Deal expansion, however, 

came concerns about management. A&er the 1936 election, in which 

federal management was an issue, President Roosevelt appointed 

the aforementioned Brownlow Committee to study the organization 

and management of the federal executive establishment.58 In 

1937 the Committee presented its report and recommended an 

expansion in presidential sta#. Congress ultimately acceded to these 

recommendations and enacted the Reorganization Act of 1939.59 

Reorganization Plan No. 1 formally created the EOP in 1939.60 !e 

new EOP included among its initial components the White House 

O"ce, the Bureau of the Budget (later OMB), and the National 

Resources Planning Board.61

1. Current Structure of the EOP

!e EOP is best understood as a warehouse that contains 

many distinct agencies and o"ces rather than as an agency in its 

own right. Since its creation, the EOP has included anywhere 

from 3 to 17 presidential sta# agencies.62 Every President since 

Roosevelt inherited an EOP and White House O"ce sta# structure 

from previous administrations. Some aspects of the existing 

57. Historical Statistics of the United States 5-127 (Carter et al. eds., 2006).

58. Burke, supra note 50, at 6.

59. !e recommendations of the report initially were entangled in larger political 

disagreements between the President and Congress stemming from Roosevelt’s 

attempt to enlarge the size of the Supreme Court (“court packing”). Harold

C. Relyea, Cong. Research Serv., 98-606, The Executive Office of the

President: An Historical Overview 6-8 (2008) [hereina&er Relyea, CRS]; 

Burke, supra note 50, at 7; Hart, supra note 50, at 28.

60. Under the authority of the Reorganization Act of 1939, the President 

was empowered to submit reorganization plans to Congress. !ese plans for 

reorganizing the government (i.e., creation, reorganization, and elimination of 

agencies) would go into e#ect a&er 60 days unless both chambers of Congress had 

passed a concurrent resolution disapproving the plan. Reorganization Act of 1939, 

Pub. L. 76-19, 53 Stat. 561, 562-63 (1939). 

61. Several months later, in September 1939, President Roosevelt issued Executive 

Order 8248, which organized the EOP and detailed its initial components. Exec. 

Order No. 8248, 4 Fed. Reg. 3864 (Sept. 12, 1939).

62. See Relyea, CRS, supra note 59, at 12-24 (providing a comprehensive list of 

EOP agencies created, reorganized, and eliminated since 1939).
23

structure worked well for the new presidents, and other parts were 

inconsistent with the changing political and electoral incentives 

of presidents. Presidents ignored parts of the EOP and made 

institutional adjustments by creating new units, eliminating or 

merging others.63 !ese entities may be identi%ed under a variety 

of terms such as bureau, administration, division, or service. More 

than 50 di#erent units have been included in the EOP at one time 

or another since its creation in 1939, with a majority persisting 

only one or two administrations.64 O&en it was the parts created 

by Congress in statute that were ignored or needed alteration. For 

example, President Truman needed a while to warm to the National 

Security Council, and President Eisenhower ultimately added a 

national security advisor to manage this apparatus. 

Among federal agencies, EOP agencies are usually the most 

responsive to the President. While some components of the EOP 

such as the O"ce of Management and Budget are still comprised 

largely of career employees, a larger percentage of employees in 

EOP agencies are political appointees than in other agencies.65 EOP 

agencies also generally lack the structural characteristics of some 

federal agencies that can insulate them from presidential control such 

as party balancing limitations on political appointees or %xed terms.66 

!e commissions in the EOP have strong chairs and no protections 

from removal. Employees in the EOP also di#er from other federal 

employees because of the common recognition of their primary 

loyalty to the President as opposed to Congress or their departments 

or agencies. Other federal employees in the executive departments 

or independent agencies may have only a limited personal loyalty to 

the President and may see their work as being more directly tied to 

congressional committees and agencies.

63. Terry M. Moe, !e Politicized Presidency, inThe New Direction in American

Politics, (J.E. Chubb and P.E. Peterson eds., 1985) [hereina&er Moe, Politicized 

Presidency].

64. Relyea, CRS, supra note 59; Hart, supra note 50, at 38.

65. Among EOP agencies, the White House O"ce, Executive Residence, National 

Security Council, and O"ce of the Vice President are sta#ed entirely by persons 

who serve at the pleasure of the President. Bradley H. Patterson, To Serve the

president: Continuity and Innovation in the White House Staff (2008).

66. As will be discussed below, presidential appointments to many commissions 

are limited by the requirement that no more than a bare majority be from one 

political party. Lewis, Agency Design, supra note 6. 
24

While Congress is responsible for creating a number of 

agencies inside the EOP, Congress historically has given the President 

a signi%cant amount of freedom in the structure and management of 

the EOP, contributing to the President’s ability to create a responsive 

EOP.67 Presidents may create new units in the EOP and temporarily 

use existing appropriated funds to pay for the operations of the 

unit.68 Ultimately, however, Congress must approve the new unit 

by explicitly authorizing it or approving appropriations that have 

been supported by budget documents that describe the new unit. 

Congress, however, only rarely contests these funds. Historically, 

Congress has been deferential to presidential choices involving EOP 

agencies in the same way that the President has been reluctant to 

modify legislative branch appropriations.

67. Relyea, CRS, supra note 59; Relyea, Executive O$ce, supra note 49; Hart, supra note 50, at 148.

68. !is requirement was added by Senator Russell (D-GA) in 

response to President Roosevelt’s creation of the President’s Committee 

on Fair Employment Practices. !e Russell Amendment states: 

No part of any appropriation or fund made available...shall be 

allotted or made available to, or used to pay the expenses of, 

any agency or instrumentality including those established by 

Executive order a&er such an agency or instrumentality has 

been in existence for more than one year, if the Congress has 

not appropriated any money speci%cally for such agency or 

instrumentality or speci%cally authorized the expenditure of funds by it. 

Pub. L. 78-359, 58 Stat. 387 (1944). !is provision has been amended and now reads: 

(a) An agency in existence for more than one year may not 

use amounts otherwise available for obligation to pay its 

expenses without a speci%c appropriation or speci%c authorization 

by law. If the principal duties and powers of the agency 

are substantially the same as or similar to the duties and 

powers of an agency established by executive order, the agency 

established later is deemed to have been in existence from the 

date the agency established by the order came into existence. 

(b) Except as speci%cally authorized by law, another agency 

may not use amounts available for obligation to pay expenses 

to carry out duties and powers substantially the same as or 

similar to the principal duties and powers of an agency that is 

prohibited from using amounts under this section. 

31 U.S.C. § 1347 (2012) !e amended provision has been interpreted to require 

only that an agency’s existence be included in larger budget justi%cations presented 

to Congress. See Lewis, Agency Design, supra note 6, at 82.
25

Table 1. Agencies in the Executive O8ce of the President

EOP Component Sta9

Size FY 

2012

Budget 

$Million

Origin Date

Council of Economic Advisers 26 4 Statute 1946

Council on Environmental Quality 24 3 Statute 1970

Executive Residence 96 12 RO Plan 1939

National Security Sta# 14 75 RO Plan 1949

O"ce of Administration 220 120 RO Plan 1977

O"ce of Management and Budget 511 89 Statute 1921

O$ce of Federal Procurement Policy Statute 1974

O$ce of Information and 

Regulatory A"airs

Statute 1980

O"ce of National Drug Control Policy 98 28 Statute 1988

O"ce of Science and Technology Policy 29 6 Statute 1976

O"ce of the United States 

Trade Representative

248 49 Statute 1975

White House O"ce 474 70 RO Plan 1939

Domestic Policy Council Executive 

Order

1993

O"ce of National 

Aids Policy

O"ce of Faith Based & 

Neighborhood P’ships

Executive 

Order

2001

O"ce of Social Innovation 

& Civic Participation

National Economic Council Executive 

Order

1993

O$ce of Cabinet A"airs

O$ce of Communications

O$ce of Digital Strategy
26

EOP Component Sta9

Size 

FY 2012

Budget 

$Million

Origin Date

White House O"ce, continued

O$ce of the First Lady

O$ce of Legislative A"airs

O$ce of Management 

and Administration

O$ce of Public Engagement 

& Intgvt. A"airs

O"ce of Public Engagement

O"ce of Intergovernmental 

A#airs

O"ce of Urban A#airs 2009

O$ce of Scheduling and Advance

O$ce of the Sta" Secretary

O$ce of the Vice President

Oval O$ce Operations

Presidential Personnel O$ce

White House Counsel

Note: Date is year when unit became a part of the EOP. For information on White House O"ce 

structure, see White House, Executive O$ce of the President, available at www.whitehouse.gov/

administration/eop (accessed July 29, 2012); Relyea, CRS, supra note 59; Hart, supra note 49, 

at 242-44; see also Office of Mgmt. & Budget, Exec. Office of the President, Budget

of the United States Government, Fiscal Year 2013, 1207-18 (for sta# and budget data 

from OMB). !ere are other components of the O"ce of Management and Budget. OIRA and 

OFPP are included as examples because of their prominence in rulemaking and contracting.

Table 1. Agencies in the Executive O8ce 

of the President, continued
27

!e EOP currently includes 10 units that employ 1,965 

persons.69 Table 1 includes a list of the components of the EOP 

along with sta# size and budgets as well as dates they were added 

to the EOP. !e most visible component of the EOP is the White 

House O"ce. !e White House O"ce is a complex institution in its 

own right. According to one count, it includes 135 distinct o"ces 

from the O"ce of Legislative A#airs to the sta# of the Executive 

Residence.70 Importantly, it includes what are commonly referred to 

as “West Wing” sta# such as the Chief of Sta#, White House Counsel, 

and Press Secretary, as well as a number of other assistants and 

deputy assistants to the President.71 In some accountings the White 

House O"ce also includes an o"ce for the Vice President.72 !e 

term “White House” or “White House Sta#” can refer to di#erent 

entities and persons depending upon the context. Sometimes the 

term “White House” is synonymous with the Executive O"ce of the 

President. In other cases, the “White House” means simply the White 

House O"ce or the White House O"ce plus a few other units in the 

EOP such as the National Security Council.73 For persons working in 

69. United States Census Bureau, !e 2012 Statistical Abstract: !e National Data 

Book, Table 499—Federal Civilian Employment by Branch and Agency, available at

http://www.census.gov/compendia/statab/2012/tables/12s0499.pdf (accessed July 

25, 2012) (citing U.S. O"ce of Personnel Management, Federal Civilian Workforce 

Statistics—Employment and Trends, available at http://www.opm.gov/feddata/). 

When the authors checked this cite, this publication was available only through 

2009. !e sta# of the Executive Residence is included as a separate organizational 

unit in the dataset accompanying this report.

70. See generally Patterson, supra note 65.

71. !e White House Sta# is comprised of persons working on the payroll of the 

White House O"ce, as well as persons working for other agencies such as the 

Secret Service and National Park Service with permanent attachments to the 

work of the White House. Employees on the payrolls of other federal agencies are 

also regularly detailed from the agency to work in the White House. !is makes 

determining the exact number of persons working in the White House at any time 

di"cult. !e White House is required annually to send to the House Oversight 

and Government Reform and Senate Governmental A#airs committees a list of 

White House employees and detailees. !e list is to include names and salaries of 

each employee except those whose listing “would not be in the interest of national 

defense or foreign policy of the United States.” 3 U.S.C. § 113 (2012).

72. Harold C. Relyea, !e Executive O$ce of the Vice President, 40 Pres. St. 

Quarterly 821 (2010).

73. In his accounting of the White House, for example, Bradley Patterson de%nes 

the “whole White House” as the White House O"ce plus the Executive Residence, 

O"ce of Policy Development, National Security Council, and O"ce of the Vice 

President. He does so based upon the fact that these other units are distinct from 

other EOP agencies in at least four di#erent ways. First, their employees serve 

entirely at the pleasure of the president. Second, they have no independent legal 
28

and around the White House, the organizational distinctions o&en 

matter very little, and who works where is not entirely clear. Distinct 

o"ces on an organization chart can be quite blurry in day-to-day 

operations. 

!e EOP also includes the O"ce of Management and Budget 

(formerly the Bureau of the Budget), which was one of the original 

agencies included in the EOP in 1939. Notably, the EOP also 

includes the Council of Economic Advisers (1946), National Security 

Council (1947), O"ce of the United States Trade Representative 

(1963), Council on Environmental Quality (1970), O"ce of Science 

and Technology Policy (1976), O"ce of Administration (1977), 

and O"ce of National Drug Control Policy (1988). !ese agencies 

were added for a number of reasons. In some cases, agencies were 

added to provide presidents advice and assistance in carrying out 

constitutional and statutory responsibilities (e.g., National Security 

Council—national security policy, Council of Economic Advisers—

economic policy responsibilities from the Employment Act of 

1946). Congress also added some partly as symbolic responses to 

national policy issues requiring presidential attention (e.g., Council 

on Environmental Quality).74 Others were added to help presidents 

control centralized administrative processes such as budgets and 

legislative clearance (e.g., O"ce of Management and Budget).75 In 

addition, presidents employ EOP agencies and sta# to coordinate 

federal policies in areas where responsibilities are divided among 

multiple agencies (e.g., O"ce of National Drug Control Policy). 

2. Controversies—Growth and “Czars”

Critics of the growth in the EOP charge that bloated White 

House sta#s create management challenges of their own for the 

authority to take any authoritative action. !ird, they are protected clearly by 

executive privilege. Fourth, their papers are subject to the Presidential Records 

Act, but they are not subject to the Freedom of Information Act. Patterson, supra 

note 65.

74 .In a few cases, Congress has placed in the EOP agencies that were not primarily 

presidential sta# agencies such as the O"ce of Economic Opportunity, the 

Council on Marine Resources and Engineering Development, and the Council on 

Environmental Quality. Seidman, supra note 6, at 178.

75. Moe Report, supra note 1, at 24.
29

President and that the centralization of power in the White House is 

bad for governance. !e former controversy is illustrated in coverage 

of the Watergate and Iran-Contra scandals, which engendered public 

pledges to cut White House sta# and scholarly analyses noting the 

management challenges of the burgeoning presidential sta#.

76 For 

example, the %rst recommendation of a report of the National 

Academy of Public Administration in 1980 was that “!e trend 

toward enlargement of the immediate White House sta# should be 

reversed. Rigorous e#orts should be made to keep this sta# small.”77

White House observers also note an increasing presidential 

tendency to centralize authority in the White House, o&en by 

appointing White House or administration o"cials as policy 

coordinators.78 !e o"cials assuming these roles are o&en referred 

to pejoratively as “czars.” !e term is shorthand for their position 

and a comment on the centralization of power in the White House.79 

!e title “czar” has been attached to administration o"cials at 

least since the Franklin Delano Roosevelt Administration in 

connection with o"cials in charge of prices, production, and ships.80 

Republican and Democratic presidents have designated key o"cials 

to direct policymaking in important areas that required substantial 

time and e#ort to direct e#ectively. !ese policy areas are o&en 

substantively and politically complicated, involve administration 

o"cials from many di#erent departments, and have political or 

electoral relevance. Presidents designate single o"cials to “knock 

heads” or “cut through the red tape” or “ensure coordinated e#ort.”81 

76. Id. at 195.

77. Id. at 197 (quoting National Academy of Public Administration, A 

Presidency for the 1980s 17 (1980)).

78. Other Senate-con%rmed o"cials are also given the same charge by the 

President, but their status as Senate-con%rmed appointees eliminates the concerns 

about testifying before Congress. José D. Villalobos and Justin S. Vaughn, Revolt 

Against the Czars: Why Barack Obama’s Sta$ng Critics Are (Mostly) Wrong, 32 

PRESIDENCY RES. GROUP REP. 8 (2010).

79. Barbara L. Schwemle, et al., Cong. Research Serv., R40856, The Debate

Over Selected Presidential Assistants and Advisors: Appointment, 

Accountability, and Congressional Oversight (2011).

80. Id. at 4.

81. Id. at 6.
30

It is hard to imagine a modern President being able to coordinate 

policymaking in di#erent areas without designating key o"cials to 

stand in for the President in those roles at least part of the time. 

!e use of administration o"cials to stand in the place of 

the President to coordinate policy has been controversial since the 

FDR administration, however, when administration o"cials were 

lampooned in a cartoon in the Evening Star wearing crowns and 

robes. Critics charge that such o"cials unduly centralize authority 

in the White House, lack accountability and generate management 

di"culties. Criticisms of these o"cials can follow partisan patterns. 

Democrats and Republicans o&en %nd such o"cials objectionable 

when the President is from the opposite party. For example, 

Democrats were heavily critical of Tom Ridge when he was a 

White House o"cial in charge of coordinating homeland security 

e#orts. Critics complained that Ridge was in$uencing policy but 

not accountable to Congress in the same way that a Secretary of 

Homeland Security would be. Congress ultimately enacted legislation 

to create a new executive department.82 In the early years of Barack 

Obama’s presidency, controversy erupted in the form of criticism of 

the number and power of such o"cials named to coordinate policy 

in di#erent areas. 

One objection to persons being named to these roles is 

that they lack democratic accountability, since those in the White 

House are not o"cers of the United States.83 While some o"cials 

named to coordinate policy on the President’s behalf are Senatecon%rmed political appointees, a number are White House aides. As 

White House aides, presidential assistants are not subject to Senate 

con%rmation and historically have not had to testify before Congress, 

being shielded by the President’s executive privilege. If, however, 

so-called “czars” exercise substantial policymaking authority, they 

825 <.34*A!87 L!,P!&@ Senator Insists Ridge Testify Before Congress@ Q5R5 03)!/@

April  5,  2002,  available  at  http://www.nytimes.com/2002/04/05/us/senatorinsists­ridge­testify­before­congress.html  (accessed  July  29,  2012).  Ridge  was 

*./( ,&383,34!" '(& %((& %!&'(&)*+,!566J*&(." F5 S!.9!*@ Organizing for Homeland 

Security, 33 PRES. STUD. QUARTERLY (2003).

83. James P. P%#ner, President Obama’s White House Czars, 32 Presidency Res. Group Rep. 5 (2010); Villalobos & Vaughn, supra note 78. 
31

plausibly should be nominated and con%rmed, and critics worry that 

the naming of White House o"cials in visible policy coordinating 

roles is a means of bypassing the Senate con%rmation process.

Beyond concerns about accountability and transparency, 

some observers worry about the e#ectiveness of these o"cials. !ey 

lack formal authority over policy, budgets or personnel, and must 

rely on other Senate-con%rmed o"cials in the departments and 

agencies to act on their behalf. !e authority of appointees selected 

to coordinate policy on behalf of the President derives from their 

proximity to the President and the extent to which they can credibly 

claim to speak for the President. Senior presidential appointees legally 

preside over thousands of employees and billion dollar budgets, and 

these political appointees rarely have to listen to anyone other than 

the President or key members of Congress.84 Many departmental 

secretaries complain of a lack of access to the President, and even 

inside the White House, access to the President, can be limited.85 If 

these o"cials have uncertain authority, their intervention in federal 

administration arguably only confuses lines of accountability.

!e growth in the White House sta# and the increasing use 

of policy coordinators increases the chances that sta# interpose 

themselves between the President and key o"cials. In such cases, 

departmental secretaries and agency heads, in e#ect, become middle 

managers.86 It becomes harder for presidents to recruit the best 

talent from the private sector, including academia, if agency heads 

are repeatedly overruled by a White House aide. !e captains of 

industry, academia, and government are less likely to leave their 

existing work or stay in government service to work for a member of 

the President’s sta#. In addition, confusion emerges about who is in 

charge and what the President prefers.

In summary, the EOP has developed into a collection of 

agencies and specialized sta# that aid the President. !e growth of 

84. P%#ner, supra note 83, at 5.

85. According to some accounts, even the highest-level o"cials in the White House 

speak to the President substantively barely once a month. Donald F. Kettl, The

Politics of the Administrative Process, 147 (5th Ed. 2011).

86. P%#ner, supra note 83, at 5-7.
32

the EOP is a relatively recent phenomenon and re$ects an attempt by 

Congress and the President to provide the President with assistance 

in carrying out his constitutional and statutory responsibilities. 

Presidents have had a signi%cant amount of freedom in the structure 

and management of the EOP, but management problems resulting 

from the size of the EOP and presidential decisions to centralize 

policy raise questions about transparency and accountability in 

White House policymaking.

B. Executive Departments 

While the EOP primarily advises the President, the 

overwhelming majority of national administration is conducted 

by federal employees working in the 15 executive or “Cabinet” 

departments.87 !e number of executive departments has varied 

over time with the creation of new departments and reorganization 

of old departments into new con%gurations. !e %rst Congress 

created the %rst executive departments, Treasury, State, and War, 

in 1789.88 !ese departments performed the essential government 

functions of managing %nances, internal a#airs (e.g., patents), 

foreign relations, and national defense. When Congress created new 

programs and tasks through statute, Congress usually delegated 

these responsibilities to existing departments, although some of the 

tasks delegated did not %t neatly with the primary missions of these 

departments.89

In 1849 Congress created the Department of the Interior, 

colloquially known then as the “Department of Everything Else,” to 

87. More than 91% of federal employees tracked by the O"ce of Personnel 

Management work in an executive department. Copeland, supra note 28.

88. Harold Seidman, A Typology of Government Agencies, in Federal

Reorganization: What Have We Learned?, 34 (Peter Szanton ed., 1981) 

[hereina&er Seidman, A Typology]. It is interesting to note that Congress considered, 

but ultimately rejected, a proposal to create a fourth executive department—a 

home department. Instead, they took the programs and responsibilities that would 

have resided in the home department, and placed them in the other departments.

89. !ere were a few exceptions to this early pattern. Speci%cally, Congress 

created four agencies outside the executive departments prior to the Civil War—

the Library of Congress, Botanic Garden, Smithsonian, and Government Printing 

O"ce. Id. at 35. !ree of these are located in the legislative branch.
33

assume many of these oddly %tting functions.90 In the period from

1860 to 1950, Congress created the clientele-based departments of 

Agriculture (1889), Commerce (1903), and Labor (1913), as well as 

numerous agencies outside the executive departments, to manage 

new government programs.91 Congress added the departments 

of Health, Education, and Welfare (1953), Housing and Urban 

Development (1965), Transportation (1966), and Energy (1977), in 

response to large national problems. !e departments of Education 

(1980), Veterans A#airs (1989), and Homeland Security (2002) 

joined the Cabinet between 1980 and 2002. Table 2 includes a list of 

departments, their creation dates, and key bureaus. !e Table also 

includes details about the number of employees and appointees in 

2012 and 1960 (or later if the department was created a&er 1960), 

for reference.

!ese departments were not created out of whole cloth.92

Rather, in creating new departments Congress combined existing 

agencies, personnel, programs, and appropriations, along with 

new responsibilities, into new organizational forms. Many of the 

central functions of government (%nance, foreign a#airs, national 

defense) are embodied in executive departments, but so are some 

less obvious functions (agriculture, energy, urban policy). !e 

earliest departments developed out of existing administrative 

structures carrying over from the government under the Articles of 

Confederation.93 Congress created the Department of the Interior 

out of programs and personnel from the other existing departments. 

90. Lloyd M. Short, The Development of National Administrative

Organization in the United States 472 (1923) [hereina&er Short, Nat’l

Admin. Org.]; John A. Fairlie, The National Administration of the United

States of America (1922); Richard F. Fenno, The President’s Cabinet: An

Analysis in the Period from Wilson to Eisenhower 26 (1959).

91. See Short, nat’l admin. org., supra note 90, at 418 (providing a description 

of the clientele-based departments and agencies created during this period). For 

example, Short reports that Congress created the Department of Agriculture in 

1862 in response to pressure from the United States Agricultural Society, the 

Department of Education in 1867 in response to pressure from the National 

Association of School Superintendents, and the Department of Labor in 1888 in 

response to the Knights of Labor. Id. Congress also created other smaller agencies 

and proto departments during this period in response to public pressure from 

clients. Id.; see also Fenno, supra note 90, at 24. 

92. Fenno, supra note 90, at 22.

93. See Short, nat’l admin. org., supra note 90, at 35.
34

!e Department of Agriculture emerged from an existing 

independent agriculture agency created more than twenty years 

earlier. In the twentieth century, the pattern remains the same. !e 

Department of Labor is the successor to the Bureau of Labor (1888). 

!e Department of Defense is the successor to the Department of 

War. !e National Security Act of 1947 combined the Departments 

of the Navy and War and created a new Department of the Air Force 

separate from the U. S. Army Air Forces. !e Department of Health, 

Education and Welfare (1953, now the Department of Health and 

Human Services) was created from the Federal Security Agency. !e 

Department of Veterans A#airs Act of 1988 elevated the Veterans 

Administration to department status in the form of the Department 

of Veterans A#airs.94 Most recently, the Department of Homeland 

Security was created by combining 22 separate federal agencies, 

including the Coast Guard, Federal Emergency Management 

Agency, and Immigration and Naturalization Service, into one new 

department.95

!ere is no fundamental constitutional or management 

principle guiding which agencies are departments and which 

agencies are sub-department bureaus or independent agencies. 

!e status and location of agencies is the subject of political 

determination. Despite persistent e#orts, it is impossible to 

organize all federal programs and agencies into departments neatly 

organized by function, primarily because the functions themselves 

defy compartmentalization. Federal involvement in transportation 

provides a useful illustrative example. Prior to 1966, federal 

transportation programs were fragmented, distributed throughout 

di#erent departments and agencies. Presidents since at least the 

Truman Administration complained about how this fragmentation 

of transportation-related responsibilities hindered e#ective and 

holistic planning to improve this sector.96 In 1966 Congress enacted 

legislation creating a new department that was intended to address 

transportation problems by consolidating existing programs and 

94. Department of Veterans A#airs Act, Pub. L. No. 100-527, 102 Stat. 2635 (1988).

95. Homeland Security Act of 2002, Pub. L. No. 107-296, 116 Stat. 2135 (2002).

96. !e %rst bill proposing the creation of a federal Department of Transportation 

was introduced in 1890. Seidman, supra note 6, at 174.
35

agencies into one department. Congressional e#orts were only partly 

successful since some transportation programs were not integrated 

into the new department, and others that were included arguably 

should not have been. For example, do federal programs dealing 

with urban mass transit belong in the Department of Transportation 

or the department dealing with urban issues, the Department of 

Housing and Urban Development? More recently, the Transportation 

Security Administration, responsible for providing airport security, 

was integrated into the Department of Homeland Security rather than 

the Department of Transportation. Concerns for domestic security 

trumped transportation. !e e#ort to organize domestic security 

functions into one department meant that transportation functions 

could not be organized into one department. Choices about which 

functions get grouped together in one department or agency are a 

re$ection of national priorities at the time they were created. In the 

early 1990s, Congress and the President deliberated about elevating 

the Environmental Protection Agency to an executive department 

but ultimately could not come to agreement on structural details.97 

More recently, President Obama proposed merging the Small 

Business Administration, Trade and Development Administration, 

Export-Import Bank, Overseas Private Investment Corporation, 

and O"ce of the United States Trade Representative (EOP) with the 

Department of Commerce’s core business and trade functions into 

one large department.98

97. Lewis, Agency Design, supra note 6. 

98. Press Release, White House O"ce of the Press Secretary, President Obama 

Announces Proposal to Reform, Reorganize and Consolidate Government (January 

13, 2012), available at http://www.whitehouse.gov/the-press-o"ce/2012/01/13/

president-obama-announces-proposal-reform-reorganize-and-consolidate-gov 

(accessed August 6, 2012).
36

Table 2.Executive Departments in the United States

Emp. 

% App. 

PAS PA NA SC Total 

Total App. 

Emp.

% App.

1789 STAT Arms Control & International Security; Civilian Security, Democracy, and Human 

Rights; Consular Affairs; Diplomatic Security; Economic Growth, Energy & the Environment; Embassies, Consulates & Missions; Bureau of Intelligence & Research; Bureau of International Narcotics & Law Enforcement Affairs; Policy Planning Staff; Political Affairs; Public Diplomacy & Public Affairs; Regional Bureaus 

30,000

0.01% 

219 6 29 101 352

274 

37,972

0.01% 

1789 DTRS Alcohol, Tobacco Tax & Trade Bureau; Bureau of Engraving & Printing; Bureau 

of the Public Debt; Financial Crimes Enforcement Network; Financial Management Service; Internal Revenue Service; Internal Revenue Service Oversight Board; Office of the Comptroller of the Currency; Office of Thrift Supervision; U.S. Mint

 106,403

0.001% 28 5 28 44 105

96 

77,318

0.001% 

1789,1947

DOD Air Force; Army; Defense Advanced Research Projects Agency; Defense 

Commissary Agency; Defense Contract Audit Agency; Defense Contract Management Agency; Defense Finance & Accounting Service; Defense Information Systems Agency; Defense Intelligence Agency; Defense Logistics Agency; Defense Security Service; Defense Technical Information Center; Defense Threat Reduction Agency; Defense Education Activity; Joint Chiefs of Staff; Missile Defense Agency; National Geospatial-Intelligence Agency; National Guard Bureau; National Reconnaissance Office; National Security Agency; Navy; Regional Commands; Tricare Mgmt. Agency

 774,244

0.0003% 49 4 69 96 218 

159

1,036,754

0.0002% 

1870 DOJ Bureau of Alcohol, Tobacco, Firearms & Explosives; Bureau of Prisons; Drug

Enforcement Administration; Executive Office for Immigration Review; Executive Office for U.S. Attorneys; Federal Bureau of Investigation; Foreign Claims Settlement Commission; Office of Justice Programs; U.S. Marshals Service; U.S. Parole Commission

 115,134

0.003% 217 6 52 68 343 

331

31,035

0.01% 

1849 INT Bureau of Indian Affairs; Bureau of Ocean Energy Management, Regulation & 

Enforcement; Bureau of Land Management; Bureau of Reclamation; Bureau of Safety & Environmental Enforcement; National Indian Gaming Commission; National Park Service; Office of Surface Reclamation & Enforcement; U.S. Fish & Wildlife Service; U.S. Geological Survey

77,225

0.001% 

17 0 41 42 100 

111

53,257

0.002% 

1862, 1889

USDA Agricultural Marketing Service; Agricultural Research Service; Animal & Plant 

Health Inspection Service; Economic Research Service; Farm Service Agency; Food & Nutrition Service; Food Safety & Inspection Service; Foreign Agricultural Service; Forest Service; Grain Inspection, Packers & Stockyards Administration; National Agricultural Statistics Service; National Institute of Food & Agriculture; Natural Resources Conservation Service; Risk Management Agency; Rural Housing Service; Rural Utilities Service

 105,126 

0.002% 13 10 43 160 219 

96 

94,904

0.001% 

Date Dept. Prominent Bureaus Political Appointees 1960

355
37

Table 2.Executive Departments in the United States, continued

Date Dept. Prominent Bureaus Political Appointees 1960

Emp.

% App. 

PAS PA NA SC Total

Total App. 

Emp.

% App.

1903,1913

COM Bureau of Economic Analysis; Bureau of Industry & Security; Economic 

Development Administration; Economic & Statistics Administration; International Trade Administration; Minority Business Development Agency; National Oceanic & Atmospheric Administration; National Telecommunications & Information Administration; National Institute of Standards & Technology; National Technical information Service Administration; U.S. Census Bureau; U.S. Patent & TrademarkOffice 

47,626

0.003% 

21 4 35 77 135 

116

33,070

0.004% 

1913 DOL Bureau of International Labor Affairs; Bureau of Labor Statistics; Employee 

Benefits Security Administration; Employment & Training Administration; Mine Safety & Health Administration; Occupational Safety & Health Administration; Office of Federal Contracts Compliance Programs; Office of Labor-Management Standards; Veterans Employment & Training Services; Wage & Hour Division; Women's Bureau

16,298

0.01% 

15 4 24 77 120 

46 

7,268

0.01% 

1965 HUD Federal Housing Administration; Government National Mortgage Corporation; 

Office of Federal Housing Enterprise Oversight; Office of Healthy Homes & Lead Hazard Control; Office of Housing; Office of Public & Indian Housing

9,758

0.01% 

13 2 16 47 78 

95 

14,940

0.01% 

1966 DOT Federal Aviation Administration; Federal Highway Administration; Federal 

Railroad Administration; National Highway Traffic Safety Administration; Federal Transit Administration; Maritime Administration; St. Lawrence Seaway Development Corporation; Pipeline & Hazardous Materials Safety Administration; Research & Innovative Technology Administration; Federal Motor Carrier Safety Administration; Surface Transportation Board

56,968

0.001% 

20 3 27 33 83 

63 

59,803

0.001% 

137
38

Note: O"ce of Personnel Management, Central Data Personnel Data File, supra note 27 (providing employment data for non-career SES (NA) and Schedule C (SC) appointees); 2008 Plum Book, supra note 12 (providing data on Senate con%rmed political appointees (PAS) and other presidential appointments not requiring Senate con%rmation (PA)). !is data was updated to account for passage of the Presidential Appointment E"ciency and Streamlining Act of 2011, which reduced the number of PAS positions requiring Senate con%rmation and made them PA positions. See Pub. L. No. 112-166, 126 Stat. 1283 (2012). !e %nal column includes data on the total number of appointees, employees, and percentage appointed in 1960, unless the department was created a&er 1960, in which case the data come from the next Plum Bookpublished a&er their creation (i.e., 1968 for HUD and DOT; 1980 for DOE, DOED, and HHS; 1992 for DVA; and 2004 for DHS). Employment data from earlier period came from U.S. Civil Service Commission/O"ce of Personnel Management, Employment and Trends, various years. See Appendix A (providing list of agency abbreviations).

Table 2.Executive Departments in the United States, continued

Date Dept. Prominent Bureaus Political Appointees 1960

Emp.

% App.

PAS PA NA SC Total

Total App. 

Emp.

% App.

1977 DOE Energy Information Administration; Federal Energy Regulatory Commission; 

National Nuclear Security Administration; Office of Electricity Delivery & Energy Reliability; Office of Energy Efficiency & Renewable Energy; Office of Environmental Management; Office of Fossil Energy; Office of Indian Energy Policy & Programs; Office of Legacy Management; Office of Nuclear Energy; Office of Science; Power Marketing Admin. 

16,381

0.01%

21 1 23 72 117 

150

21,557

0.01%

1979 DOED Federal Student Aid; Institute of Education Sciences; Office of Special Education & 

Rehabilitative Services; Office of Elementary & Secondary Education; Office of Postsecondary Education; 

4,620 

0.03%

13 5 14 115 146 

92

7,364

0.01%

1953,1980

HHS Administration on Aging; Administration for Children & Families; Agency for 

Healthcare Research & Quality; Agency for Toxic Substances Disease Registry; Centers for Disease Control & Prevention; Centers for Medicare & Medicaid Services; Food & Drug Administration; Health Resources & Services Administration; Indian Health Service; Nat. Inst. of Health; Substance Abuse & Mental Health Serv. Admin.

85,642

0.002%

16 5 60 68 148 

196

155,662

0.001%

1988 DVA Board of Veterans Appeals; National Cemetery Administration; Veterans Benefits 

Administration; Veterans Health Administration

316,480 

0.0001% 10 5 10 12 37 

32

259,406

0.0001%

2002 DHS Citizenship & Immigration Services; Customs & Border Protection; Federal 

Emergency Management Agency; Immigration & Customs Enforcement; Transportation Security Administration; U.S. Coast Guard; U.S. Secret Service

198,242

0.001% 16 5 54 89 163 

200

152845

0.001%

Note: Office of Personnel Management, Central Data Personnel Data File, supra note 27 (providing employment data for noncareer SES (NA) and Schedule C (SC) appointees); 2008 PLUM BOOK, supra note 12 (providing data on Senate confirmed political appointees (PAS) and other presidential appointments not requiring Senate confirmation (PA)). This data was updated to account for passage of the Presidential Appointment Efficiency and Streamlining Act of 2011, which reduced the number of PAS positions requiring Senate confirmation and made them PA positions. See Pub. L. No. 112-166, 126 Stat. 1283 (2012). The final column includes data on the total number of appointees, employees, and percentage appointed in 1960 unless the department was created after 1960 in which case the data come from the next Plum Book published after their creation (i.e., 1968 for HUD and DOT; 1980 for DOE, DOED, and HHS; 1992 for DVA; and 2004 for DHS). Employment data from earlier period came from U.S. Civil Service Commission/Office of Personnel Management, Employment and Trends, various years. See Appendix A (providing list of agency abbreviations).

147149164
39

1. Executive Departments and Other Executive Agencies Compared

!e primary di#erence between an executive department 

and an independent administration is symbolic. Department status 

is conferred to con%rm the importance of certain constituencies 

(farmers, business, labor, veterans) or publicly recognize the priority 

of dealing with certain key policy problems (cities, transportation, 

energy, homeland security). Secretaries of the executive departments 

are traditionally members of the Cabinet. Groups press for Cabinet 

recognition to receive a symbolic national a"rmation that they or 

their issues are centrally important. Membership in the Cabinet 

itself, however, is discretionary. !e President may designate other 

executive o"cials as having Cabinet rank. Recent presidents have 

made heads of agencies such as the Environmental Protection Agency 

and Small Business Administration members of the Cabinet. !e 

Cabinet itself is not generally a decisionmaking body. Inclusion in the 

Cabinet has little direct in$uence on presidential decisionmaking.99

!e main structural di#erence between executive 

departments and other agencies, where such di#erences exist, is 

in placement of political appointees. First, the titles and pay levels 

for political appointees in executive departments o&en di#er from 

political appointees in other agencies. For example, while the 

structure of an agency such as the Environmental Protection Agency 

is very similar to that of an executive department, equivalent o"cials 

have di#erent titles and pay levels. A departmental secretary is 

paid at executive level I (EX I) and the EPA administrator is paid 

at executive level II (EX II).100 Second, executive departments tend 

to have more political appointees than other agencies, even though 

many executive departments are signi%cantly smaller than some 

independent agencies. Two of the smaller executive departments 

99. Fenno, supra at 90; Moe Report, supra note 1.

100. !e pay levels of agency heads are hard to characterize generally. For example, 

the Commissioner of the Social Security Administration is paid at Executive Level 

I despite not heading an executive department. While most chairs of independent 

commissions are paid at Executive Level III, the chairs of the Board of Governors 

of the Federal Reserve and the Nuclear Regulatory Commission are paid at 

Executive Level II. !e Chairman of the Administrative Conference of the United 

States is to be paid “at the highest rate established by statute for the chairman of an 

independent regulatory board or commission.” 5 U.S.C. § 593 (2012).
40

are Education (DOED) and Housing and Urban Development. 

!ey employ about 4,500 and 9,900 employees, respectively. Two 

of the larger agencies that are not part of an executive department, 

the EPA and the National Aeronautics and Space Administration 

(NASA), each has over 18,000 employees, and the Social Security 

Administration (SSA) has over 67,000 employees. Despite having 

only 4,500 employees, DOED has close to 150 political appointees, 

compared to 66, 18, and 14 for EPA, NASA, and SSA, respectively. 

!e categorization of an agency as a department provides political 

justi%cation for a department-like management structure in terms of 

the number of bureaus, assistant, under, and deputy secretaries and 

other o"cials common in other executive departments, even if the 

bureaus are signi%cantly smaller. For example, once the Department 

of Defense added a deputy secretary for the %rst time in 1949, other 

departments followed suit soon therea&er.101 When presidents name 

other o"cials as members of the Cabinet, this does not change 

agency features. It only provides invitations to Cabinet meetings.

2. !e Structure of Executive Departments

From the start, a single person has been nominated by the 

President and con%rmed by the Senate to head each of the executive 

departments. !is appears to have been the clear intention of 

the Founders a&er their experience with boards during the preConstitution period.102 Today, a team of presidential appointees 

requiring Senate con%rmation, and their sta#s, manage the 

departments. Modern department leadership currently includes 

from 15 to 53 Senate-con%rmed positions,103 including the secretary, 

a deputy secretary, and a number of under and assistant secretaries. 

Under these o"cials are chiefs of sta#s and special advisors, but 

101. Paul C. Light, Thickening Government: Federal Hierarchy and the

Diffusion of Accountability 105 (1995) [hereina&er Light, Thickening].

102. See Short, supra note 90, at 35-77, 93, 111 (providing a useful administrative 

history of this period which describes the national transition from legislatively led 

boards to single-headed ministries or departments).

103. !ere are a high number of Senate-con%rmed appointees in the State 

Department due to the requirement that all ambassadors be con%rmed by the 

Senate. !e high number in Senate-con%rmed appointees in the Department of 

Justice is due to the requirement that all U.S. Attorneys, as well as U.S. Marshals, 

must be con%rmed by the Senate.
41

also deputies who are a mix of other political appointees and career 

professionals. !e hierarchy of the departments de%es overly simple 

characterization because of the proliferation in the number of titles 

over the last 40 years.104

!ese members of the administration preside over distinct 

sub-department agencies. !e modern executive departments 

are comprised of anywhere from 3 to 40 organizationally distinct 

bureaus, with most housing 10-15.105 “Bureau” is a general term that 

refers to many di#erent sub-units within larger departments that have 

di#erent names such as the Federal Bureau of Investigation, Internal 

Revenue Service, or National Highway Tra"c Safety Administration. 

Like departments, bureaus vary in size and signi%cance. In many 

departments the sub-department bureaus have signi%cant autonomy 

and authority; many departments are better characterized as holding 

companies of a number of distinct agencies rather than one large 

agency.106 !e autonomy of sub-department agencies derives from 

a number of sources. Most have legal authority delegated to the 

bureau chief directly by legislation, rather than to the department 

secretary or the President.107 Large bureaus are also generally headed 

104. Light, Thickening supra note 101.

105. !e Department of Defense is the outlier with 40 distinct sub-department 

agencies, dramatically more than any other department. !ese agencies include: 

the distinct military services (Air Force, Army, Marines, Navy); the joint 

commands (e.g., Joint Chiefs of Sta#, U.S. Northern Command); the civilian 

agencies inside the department, such as the Defense Advanced Research Projects 

Agency (DARPA); the Defense Contract Management Agency; and, the various 

military educational institutions (e.g., Joint Forces Sta# College, National Defense 

University, National War College). !ere is no uniform standard as to how one 

de%nes a distinct bureau within a larger department or agency. To a large extent, 

federal data collection agencies rely on agency self-determinations when reporting 

the number of bureaus. !e estimates in the text derive from a count of the 

number of sub-department agencies listed in the Government Manual, which is 

signi%cantly di#erent from a count based on the list of USA.gov or FOIA.gov. See, 

e.g., NARA, Gov’t Manual, supra note 10.

106. Departments referred to as “holding company” departments include 

Interior, Defense, Commerce, Health and Human Services, and Transportation. 

See Seidman, A Typology, supra note 88, at 38; Fenno, supra note 90, at 228-29; 

Moe Report, supra note 1, at 11; J. Leiper Freeman, The Political Process—

Legislative Committee Relations (1958).

107. John Preston Comer, Legislative Functions of National

Administrative Authorities (1927); Kevin Stack, !e President’s Statutory 

Powers to Administer the Laws, 106 Colum. L. Rev. 27 (2006); Fenno, supra note 

90, at 228-29. Moe Report, supra note 1, at 29.
42

by Senate-con%rmed political appointees, making bureau chiefs 

accountable to congressional committees directly rather than 

through higher departmental o"cials.108 Some, though a minority, 

are headed by political appointees who serve for %xed terms of 

varying lengths (Table 3). Accompanying %xed terms are explicit 

or implicit guarantees that political appointees cannot be removed 

except “for cause.” !is has been interpreted to mean that removals 

cannot happen simply because of policy disagreements between the 

President and political appointees.109 Of course, political appointees 

serving %xed terms may leave in any case, but %xed terms can be an 

important source of independence.

Older bureaus like the Department of the Navy, the Federal 

Aviation Administration, and the Food and Drug Administration 

have some measure of independence, power, and prestige because 

they have existed longer than the departments that house them. For 

example, the Census Bureau traces its history to the constitutional 

requirement for a decennial census.110 !e Public Health Service (in 

the Department of Health and Human Services) was created in 1798 

when Congress provided for the care of merchant seamen.111 !ese long 

histories facilitate the development of networks of political support 

among clients, groups, and congressional committees. Relationships 

between bureau o"cials and Senate and House committees and 

sta#s established through regular interaction over long periods of 

time facilitate bureau independence from administration political 

appointees and other members of Congress.112

108. Freeman, supra note 106.

109 See Humphrey’s Ex’r v. United States, 295 U.S. 602 (1935); see also infra Part 

IV. C.1 (discussing protections against removal). Similarly, because the Librarian 

of Congress is appointed by the President with the advice and consent of the 

Senate, the President also has the authority to remove the Librarian at will. See

Live365, Inc. v. Copyright Royalty Bd., 698 F.Supp.2d 25, 42-43 (D.D.C. 2010); 

Intercollegiate Broad. Sys. v. Copyright Royalty Bd., 684 F.3d 1332, 1342 (D.C. 

Cir.), reh’g en banc denied, 2012 U.S. App. LEXIS 18230 (D.C. Cir. 2012).

110. U.S. Const. art. I, § 2.

111. See U.S. Dep’t of Health and Human Serv., U.S. Public Health Service 

Commissioned Corps, Public Health Service History at USPHS Commissioned 

Corps, available at http://www.usphs.gov/aboutus/history.aspx (accessed August 

22, 2012).

112. See Freeman, supra note 106; Schick, supra note 22, at 522; Herbert

Kaufman, The Administrative Behavior of Federal Bureau Chiefs 170 

(1981). 
43

Table 3. Bureaus in Executive Departments With Fixed 

Terms for Presidentially Appointed Bureau Chiefs

Note: Agencies in bold are multi-member bodies. Provisions for a %xed term for the Director of the Census Bureau 

were included in the Presidential Appointment E"ciency and Streamlining Act of 2011. See Pub. L. No. 112-166, 

126 Stat. 1283 (2012). !is list excludes bureaus whose personnel are named by the agency head and have %xed 

terms. Henry B. Hogue et al., Cong. Research Serv., RL30959, Presidential Appointee Positions Requiring

Senate Confirmation and Committees Handling Nominations (2008). √ indicates that agency statutes include 

explicit “for cause” protections against removal.

Department Bureau Term 

Length

For Cause

Department of 

Commerce

Director, Bureau of the Census 5

Department 

of Defense

Joint Chiefs of Sta9: 

Chair

Vice chair

Chief of Sta# of the Air Force

Chief of Sta# of the Army

Chief of Naval Operations

Commandant of the Marine Corps

2

2

4

4

4

4

Department of 

Education

Director, Institute of Education Sciences

Commissioner of Education Statistics

6

6

Department 

of Energy

Federal Energy Regulatory Commission 5 √

Department 

of Health and 

Human Services

Director, Indian Health Service

Surgeon General

4

4

Dept. of Housing and 

Urban Development

Director, O"ce of Federal Housing 

 Enterprise Oversight

5

Department 

of Interior

National Indian Gaming Commission 3 √

Department of Justice Director, Community Relations Service

Director, Federal Bureau of Investigation

Foreign Claims Settlement Commission

United States Attorneys

United States Marshals

United States Parole Commission

4

10

3

4

4

6

√

Department of 

the Treasury

Comptroller of the Currency

Director of the Mint

Commissioner, Internal Revenue Service

Internal Revenue Service Oversight Board

5

5

5

5

Department of 

Transportation

Administrator, Federal Aviation Administration

Administrator, St. Lawrence Seaway 

 Development Corporation

Surface Transportation Board

5

7

5 √

Department of 

Veterans A#airs

Board of Veterans Appeals

Under Secretary for Bene%ts

Under Secretary for Health

6

4

4

√
44

When deciding to create new departments or agencies 

Congress can specify a few or many of the details of internal agency 

organization.113 In some cases, Congress leaves it up to the agency 

head to create the internal o"ces and divisions of an agency and 

empowers the secretary to reorganize older bureaus moving into the 

new agency or department.114 In other cases, Congress speci%es in 

great detail the internal organization of an agency and preserves the 

integrity of freestanding units being moved into a new department.115 

!is has been true from the earliest days of the Republic when 

Congress laid out the structure of the Department of the Treasury 

in great detail but not the departments of State or War.116 Congress 

is now specifying the internal organization of federal agencies in 

greater detail than in the past.117

Statutorily provided details about internal department and 

agency structures come from both the organic act creating the 

agency and subsequent legislative action. Congress regularly creates 

new agencies and bureaus and adds them to existing departments 

or agencies. For example, the Consumer Financial Protection 

Bureau (2010) was created by the Dodd-Frank legislation and 

added to the Federal Reserve (1913).118 Congress also, from time 

to time, mandates the creation of o"ces with a particular mission 

in all agencies government-wide. A notable example is when 

Congress mandated the creation of o"ces of inspector general in all 

executive departments in the Inspector General Act of 1978.119 Other 

113. Moe Report, supra note 1. 

114. Compare 6 U.S.C. §§ 101-63 (2012) (referencing 37 bureaus, o"ces, and 

agencies to be moved or created within the Department of Homeland Security) 

with 42 U.S.C. §§ 3501-15d (2012) (referencing only 5 bureaus, o"ces, and 

agencies within the Department of Health and Human Services).

115. See, e.g., Homeland Security Act of 2002, Pub. L. No. 107-296, 116 Stat. 2135.

116. Short, supra note 90.

117. Moe Report, supra note 1.

118. See Dodd-Frank Wall Street Reform and Consumer Protection Act, Pub. 

L. No. 11-203, 124 Stat. 1376 (2010). Almost all large bureaus in the executive 

departments have been formally authorized in legislation. Sometimes formal 

legislative authorization comes a&er an agency has been created by executive 

action.

119. According to the Council of Inspectors General on Integrity and E"ciency, 

there are now 73 statutory inspectors general with the additions mandated in 

amendments to the initial act, notably in 1988, when independent agencies were 

added. See Council of the Inspectors General on Integrity and E"ciency, available 

at http://www.ignet.gov/ (accessed July 17, 2012).
45

government-wide mandates can have a similar e#ect. Congress has

mandated the creation of four “chief o"cer” positions (%nancial, 

information, human capital, acquisition) in major agencies, and 

this can lead to the creation of new and similar o"ces in di#erent 

agencies across the executive establishment.120 Other governmentwide managerial mandates such as the Freedom of Information Act, 

faith-based and community initiatives, and laws and regulations 

relating to discrimination in federal employment lead to the 

common o"ces across departments and agencies (e.g., FOIA o"ces, 

faith-based initiatives o"ces, and equal employment opportunity or 

civil rights o"ces).121 Common agency tasks and requirements such 

as the need for legal advice and review, congressional and public 

relations, budget, and program evaluation also lead departments and 

agencies to have common features (e.g., general counsel, o"ce of 

legislative a#airs, o"ce of public a#airs, budget o"ce).122

3. Variation in the Number of Employees and Political 

Appointees

In addition to di#erences in history, mission, and structure, 

executive departments di#er in size and the depth and penetration 

of political appointees. By far the largest department is the 

Department of Defense (DOD), which employs over 650,000 federal 

civilians and oversees more than one million uniformed military 

personnel and unknown thousands of intelligence personnel and 

private contractors. !e Department includes the military services 

(Air Force, Army, Navy), which are as large as many departments 

in their own right, each with over 150,000 civilian employees. !e 

Department of Veterans A#airs and the Department of Homeland 

Security are also large employers, particularly in comparison to the 

smaller departments such as Education, Energy, and Housing and 

Urban Development. !e number of political appointees does not 

correspond to di#erences in size. Education and Labor have close 

to 150 political appointees, while Energy has closer to 110. !e 

120. Clinton T. Brass, Cong. Research Serv., RL32388, General Management

Laws: Major Themes and Management Policy Options (2004) [hereina&er 

Brass, Gen. Mgmt. Laws].

121. See id. (for a compendium of government-wide managerial mandates).

122. Moe Report, supra note 1, at 28.
46

Department of Defense and Department of Homeland Security have 

over 200 each, but Interior, Transportation, Treasury, and Veterans 

A#airs have fewer than 100 each. As a percentage of agency 

employees, Education, HUD, and Labor have the most political 

appointees.123 !ese di#erences in political appointee numbers 

in$uence agency behavior and reputation. Political appointees 

aid the President in communicating administration priorities, but 

they also provide an important source of patronage (i.e., jobs to be 

allocated as a reward for political support) and have an in$uence 

on the quality of management inside agencies, as will be discussed 

below.124

C. Independent Agencies 

From the %rst Congress, the legislature operated under the 

assumption that the proper form of administration was a permanent 

executive department headed by a single secretary.125 Starting in the 

1880s with the creation of the Interstate Commerce Commission 

(ICC), Congress began creating permanent agencies as commissions, 

o&en outside of the existing executive departments. Up to this 

point, Congress had episodically created new agencies outside of 

existing departments. It would do so because these agencies did not 

%t neatly inside existing departments. Some examples include the 

precursors to the departments of Agriculture and Labor. Generally, 

however, these agencies would have similar structures as executive 

123. David E. Lewis, The Politics of Presidential Appointments: Political

Control and Bureaucratic Performance 82 (2008) [hereina&er Lewis, 

Presidential Appt].

124. Domonic A. Bear%eld, What Is Patronage? A Critical Reexamination, 69 Pub. 

Admin. Rev. 64 (2009); G. Calvin Mackenzie, The Politics of Presidential

Appointments (1981); Martin Tolchin and Susan Tolchin, To the Victor: 

Political Patronage from the Clubhouse to the White House (1971) 

[hereina&er Tolchin and Tolchin, To the Victor]; Martin Tolchin and Susan

Tolchin, Pinstripe Patronage: Political Favoritism from the Clubhouse

to the White House and Beyond (2010) [hereina&er Tolchin and Tolchin, 

Pinstripe Patronage]. 

125. !e nation had employed boards and commissions for executive functions 

during the struggle for independence and under the Articles of Confederation. 

A number of the Founders and early members of Congress determined from that 

experience that permanent agencies with single heads were more e"cient and more 

accountable than boards. See Short, supra note 90, at 35-77, 93, 111 (providing a 

useful administrative history of this period which describes the national transition 

from legislatively led boards to single-headed ministries or departments).
47

departments, and they o&en would be consolidated into new or 

existing executive departments a&er a period of time. !e creation 

of the ICC was of a di#erent character.126 Congress sought to create 

a form of administration that would be expert and insulated from 

politics, so that the powers of the agency would not be used in a 

partisan way.

Since the ICC exercised signi%cant legislative and 

adjudicative power that would impact the larger economy and key 

interests, Congress sought to fashion an agency that was bipartisan 

and expertise-focused. In practice, this meant designing the 

agency in such a way that the President’s appointment and removal 

powers would be limited. Congress created the ICC as a 5-member 

commission with 6-year %xed and staggered terms, and provided 

that the President could remove commissioners for “ine"ciency, 

neglect of duty, or malfeasance in o"ce.”127 !e act stipulated that 

no more than 3 commissioners could be appointed from the same 

political party. 

A&er the creation of the ICC, Congress created scores of 

both minor and major agencies outside the executive departments, 

including multi-member commissions modeled a&er the ICC, 

such as the Federal Reserve (1913) and Federal Trade Commission 

126. !e ICC was originally within the executive department structure since 

the original act gave the Secretary of Interior authority to receive reports and 

approve the number and remuneration of ICC employees. Congress granted 

the agency full independence from the Interior Department in 1889. !e Civil 

Service Commission, created in 1883, was a bipartisan commission like the ICC. 

It operated independently, but was also located for administrative purposes inside 

the Department of the Interior. It would reside there until 1925. Seidman, supra

note 6, at 163. Paul P. Van Riper, History of the United States Civil Service

103-04 (1958).

127. Interstate Commerce Act of 1887, Pub. L. No. 49-41 (1887). !e phrase 

“ine"ciency, neglect of duty, or malfeasance in o"ce” is generally interpreted 

as protecting commissioners from presidential removal except “for cause.” In 

the context when it was enacted, however, the Tenure of O"ce Act was still in 

e#ect, which limited the President’s power of removal by requiring Senate assent 

to a presidential removal. !is provision can be read as providing the President 

greater power than he might otherwise have had in removal.
48

(1914).128 !e creation of independent regulatory commissions 

continued well into the twentieth century with the New Deal and early 

1970s being notable for the addition of new commissions. Congress 

added the Federal Communications Commission, Securities and 

Exchange Commission, and National Labor Relations Board in the 

1930s and Consumer Product Safety Commission, Federal Election 

Commission, and Commodity Futures Trading Commission in 

the early 1970s. Once created, these agencies have proven quite 

durable relative to agencies in the Executive O"ce of the President 

or executive departments.129

1. What is an Independent Agency?

To ask this begs the question of what de%nes agency 

independence. !ere is no general, widely accepted de%nition of an 

independent agency, but this label or de%nition is consequential for 

both law and politics.130 For some scholars, any agency created outside 

the EOP or executive departments is an independent agency.131 !is 

report has implicitly operated with this de%nition. What de%nes 

agency independence under this de%nition is the lack of a general 

requirement to report to any higher o"cial in the executive branch 

such as a department secretary. !ere is no layer of organization 

between the agency and the President. !us, the class of independent 

agencies would include all administrations, commissions, and 

corporations outside the EOP and executive departments, such 

128. As before, some agencies were created outside the executive departments 

because their functions did not %t neatly with the functions of existing 

departments. In other cases, however, Congress—in$uenced by the Progressive 

belief in science and technical expertise—sought to create court-like agencies of 

experts to scienti%cally manage speci%c policy areas. Breger and Edles, supra note 

9, at 1130-33.

129. David E. Lewis, !e Adverse Consequences of the Politics of Agency Design 

for Presidential Management in the United States: !e Relative Durability of 

Insulated Agencies, 34 Brit. J. Pol. Sci. 377 (2003) [hereina&er Lewis, Adverse 

Consequences].

130. Breger and Edles, supra note 9; Datla and Revesz, Deconstructing Independent 

Agencies, supra note 9; Jacob E. Gersen, Designing Agencies, in Research

Handbook on Public Choice and Public Law 347 (Daniel A. Farber and Anne 

Joseph O’Connell eds., 2010); Angel Manuel Moreno, Presidential Coordination of 

the Independent Regulatory Process, 8 Admin. L. J. 468 (1994).

131. Seidman, supra note 6; Lewis, Agency Design, supra note 6; David Epstein

and Sharyn O’Halloran, Delegating Powers (1999).
49

as the Environmental Protection Agency and Federal Deposit 

Insurance Corporation. It would not, however, include multimember bodies inside an executive department such as the Federal 

Energy Regulatory Commission (within the Department of Energy) 

or bureaus whose heads have %xed terms and for cause protections 

such as the Federal Aviation Administration or Commissioner of the 

Internal Revenue Service.132

For other scholars, however, independence is de%ned not by 

location inside or outside an executive department but by structural 

features, particularly for cause removal protections (i.e., political 

appointees cannot be removed except “for cause,” “ine"ciency, 

neglect of duty, or malfeasance in o"ce,” or similar language) for 

agency leaders.133 Independence in this context means independence 

from political interference, particularly removal by the President.134 

By this de%nition, the class of independent agencies would include a 

multitude of single-headed and multi-member agencies inside and 

outside the executive departments. !ere are at least 23 di#erent 

single-headed (i.e., not multi-member boards or commissions) sub132. !e statute creating the Federal Energy Regulatory Commission states: “!ere 

is established within the Department an independent regulatory commission to be 

known as the Federal Energy Regulatory Commission.” 42 U.S.C. § 7171; see also

49 U.S.C. § 106(b) (the Federal Aviation Administrator has a %xed, %ve-year term); 

26 U.S.C. § 7803(a)(1)(B) (the Commissioner of the Internal Revenue Service 

serves for a %xed, %ve-year term).

133. Most existing scholarship recognizes some clustering of design characteristics 

that together signify independence, but the most important characteristic appears 

to be protections against removal. See Kent H. Barnett, Avoiding Independent 

Agency Armageddon, 87 Notre Dame L. Rev. 1349 (2012); Rachel E. Barkow, 

Insulating Agencies: Avoiding Capture !rough Institutional Design, 89 Tex. L. Rev.

16, 31 (2010); Lisa Schultz Bressman and Robert B. !ompson, !e Future of Agency 

Independence, 63 Vand. L. Rev. 599, 610 (2010); Gersen, supra note 130, at 347; 

Elena Kagan, Presidential Administration, 114 Harv. L. Rev. 2247 (2001); see also

Note, Independence, Congressional Weakness, and the Importance of Appointment: 

the Impact of Combining Budgetary Autonomy with Removal Protection, 125 Harv. 

L. Rev. 1822, 1824 (2012) [hereina&er Note, Budgetary Autonomy and Removal 

Protection].

134. Court jurisprudence concerning independent agencies also focuses 

overwhelmingly on removal provisions. See Free Enter. Fund v. Pub. Co. Accounting 

Oversight Bd., 130 S. Ct. 3138 (2010) (addressing the removal provisions for the 

Public Company Accounting Oversight Board); Humphrey’s Ex’r v. United States, 

295 U.S. 602 (1935) (federal statutes may limit the removal of o"cials in certain 

types of agencies); Myers v. United States, 272 U.S. 52 (1926) (any statute by which 

the unrestricted power of removal is denied to the President is unconstitutional); 

Note, Budgetary Autonomy and Removal Protection, supra note 133, at 1822.
50

department bureaus whose administrators or directors are appointed 

by the President and serve for a %xed term, from the Director of the 

Federal Bureau of Investigation to the Undersecretary of Veterans 

A#airs for Bene%ts (Table 3).135 Discussions of independent agencies, 

however, usually revolve around the set of multi-member boards and 

commissions patterned a&er the ICC that have for cause protections 

against removal and o&en quasi-judicial or quasi-legislative authority. 

For example, the Paperwork Reduction Act of 1980 lists sixteen 

independent regulatory agencies. Each agency listed is a commission 

with tenure protections. It also notes, however, that other agencies 

might be classi%ed as independent by providing that the group of 

independent regulatory agencies includes, “any other similar agency 

designated by statute as a Federal independent regulatory agency 

or commission.”136 In addition to commission structures and %xed 

terms, most discussions note the importance of for cause provisions, 

staggered terms, and party-balancing limitations on appointments.137

Table 4 includes all multi-member bodies whose members 

have %xed terms. !e table lists each such agency and whether 

the agency includes other features scholars generally associate 

with independent agencies. !e table lists 66 such agencies, some 

in executive departments and others created outside the executive 

departments. !e list includes classic independent regulatory 

commissions such as the Federal Communications Commission 

and Federal Trade Commission, but also a whole host of other 

135. !ere are other agency o"cials named by the agency head that also serve for 

%xed terms. !ese include: National Appeals Division (USDA); Regional Marine 

Fishery Management Councils (USDA); Corporation for Travel Promotion 

(DOC); O"ce of Navy Reserve (DOD); O"ce of Marine Forces Reserve (DOD); 

O"ce of Air Force Reserve (DOD); Joint Sta# of the National Guard Bureau 

(DOD); Board of Actuaries (DOD); Medicare-Eligible Retiree Health Care Board 

of Actuaries (DOD); Performance-based Organization for the Delivery of Federal 

Student Financial Assistance (DOED); National Advisory Council on National 

Health Service Corps (HHS); O"ce of the Chief Actuary (CMS-HHS); O"ce of 

the Coast Guard Reserve (DHS); Foreign Service Grievance Board (STAT); and 

Air Tra"c Services Committee (DOT). See Free Enter. Fund, 130 S. Ct. at App. A 

(Breyer, J., dissenting).

136. 44 U.S.C. § 3502(5) (2012).

137. Paul R. Verkuil, !e Purposes and Limits of Independent Agencies, 1988 Duke

L.J. 259 (April/June 1988); Neal Devins, Political Will and the Unitary Executive: 

What Makes an Independent Agency Independent, 15 Cardozo L. Rev. 273 (1993) 

[hereina&er Devins, Political Will].
51

agencies.138 Interestingly, some of the classic independent regulatory 

commissions have all of the features of the ICC such as explicit for 

cause protections, explicit staggering of terms, and party balancing 

limitations on appointments, but others do not. For example, while 

the Consumer Product Safety Commission has explicit “for cause” 

protections against removal, the Commodity Futures Trading 

Commission and Securities and Exchange Commission do not.139 

!e statutes governing the National Labor Relations Board do not 

require party balancing among members.

2. Independent Administrations

Independent administrations are listed in the le& column 

of Table 5 and look structurally most like executive departments. 

A comparison of the organization charts of independent 

administrations and executive departments can look very similar 

except that where executive departments have assistant, under, 

and deputy secretaries and secretaries, administrations have 

commissioners or administrators. As suggested above, lower pay is 

usually attached to positions in these agencies outside the executive 

departments, with top o"cials being paid at executive level II or III 

rather than level I for a department secretary. !is can in$uence 

the pay of subordinate o"cials as well. If the administrator is paid at 

executive level III, this implies that lower-level o"cials will be paid 

at executive levels IV and V. 

138. !e classic independent regulatory commissions are those that are structured 

like the ICC and have important economic and regulatory impacts. Most lists 

generally include the following commissions: Federal Reserve Board of Governors; 

Federal Trade Commission; Securities and Exchange Commission; Federal 

Communications Commission; National Labor Relations Board; Consumer 

Product Safety Commission; Commodity Futures Trading Commission; Federal 

Energy Regulatory Commission; Nuclear Regulatory Commission; and U.S. 

International Trade Commission. See Moreno, supra note 130, at 475-78.

139. However, courts have recognized implicit “for cause” protections. See, e.g., 

Wiener v. United States, 357 U.S. 349 (1958) (even in the absence of “for cause” 

statutory provisions, the President cannot remove a member of an adjudicatory 

body like the War Claims Commission merely because he wants his own appointees 

to serve on such a commission); Humphrey’s Ex’r, 272 U.S. at 2 (“for cause” 

provisions are constitutional in predominately quasi-legislative or quasi-judicial 

agencies); Blinder, 855 F.2d 677 (recognizing implicit “for cause” protection in the 

SEC because the SEC is like the FTC in that both are administrative bodies created 

by Congress to carry into e#ect legislative policies). 
52

Agency Outside 

Exec 

Dept.

Explicit 

“For 

Cause” 

Protections

Explicit 

Staggering 

of Terms

Party 

Balancing

Quorum 

Rules

Administrative Conference of the U.S.

Board of Veterans Appeals (VA)

Broadcasting Board of Governors 

Chemical Safety & Hazard Invest Bd 

Commodity Futures Trading Comm. 

Consumer Product Safety Commission

Corporation for Nat’l Community Service 

Corporation for Public Broadcasting 

Defense Nuclear Facilities Safety Board 

Equal Employment Opportunity Comm. 

Export-Import Bank of the U.S.

Farm Credit Administration 

Federal Agricultural Mortgage Corp 

Federal Communications Commission 

Federal Deposit Insurance Corporation 

Federal Election Commission

Federal Energy Regulatory Com (DOE)

Federal Hospital Insurance Trust Fund Bd 

Federal Labor Relations Authority 

Federal Maritime Commission 

Federal Mine Safety & Health Rev Com 

Federal Reserve Board 

Federal Retirement !ri& Investment Bd 

Federal Supp Med Ins Trust Fund Bd 

Federal Trade Commission 

Foreign Claims Settlement Comm. (DOJ)

Harry S Truman Scholarship Foundation 

Institute of American Indian Arts 

Inter-American Foundation

IRS Oversight Board (DTRS) 

James Madison Mem Fellowship Found 

Legal Services Corporation 

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

Table 4. Characteristics of Multi-Member 

Bodies with Fixed Terms
53

Merit Systems Protection Board

Metropolitan Washington Airport Auth. 

Millennium Challenge Corporation 

Mississippi River Commission 

Morris K. Udall Scholarship Foundation 

National Consumer Cooperative Bank

National Council on Disability 

National Credit Union Administration 

National Indian Gaming Com (INT)

National Institute of Building Sciences 

National Labor Relations Board 

National Mediation Board

Nat Railroad Passenger Corp (AMTRAK) 

National Science Foundation 

National Security Education Board 

National Transportation Safety Board 

Nuclear Regulatory Commission

Occupational Safety & Health Rev Com 

Overseas Private Investment Corporation 

Postal Regulatory Commission 

Privacy and Civ. Liberties Oversight Bd

Railroad Retirement Board 

Securities Investor Protection Corporation

Securities & Exchange Commission 

Social Security Advisory Board 

State Justice Institute 

Surface Transportation Board (DOT)

Tennessee Valley Authority 

U.S. African Development Foundation

U.S. Election Assistance Commission 

U.S. Institute of Peace 

U.S. International Trade Commission 

U.S. Parole Commission (DOJ)

U.S. Postal Service

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

Agency Outside 

Exec 

Dept.

Explicit 

“For 

Cause” 

Protections

Explicit 

Staggering 

of Terms

Party 

Balancing

Quorum 

Rules

Table 4. Characteristics of Multi-Member 

Bodies with Fixed Terms, continued

Note: Multi-member bodies without %xed terms that have quorum rules include the Appalachian 

Regional Commission and the Delta Regional Authority. !e EEOC, FCC, FLRA, and TVA do not 

have explicit provisions for staggered terms in their current statute, but previous versions of their 

authorizing statutes did include provisions for such staggering. See Pub. L. 92-261, § 8(d) (1972) 

(EEOC); Pub. L. 97-259, § 103(a) (1982) (FCC); Pub. L. 98-224, § 3(b) (1984) (FLRA); Pub. L. 108-447, 

§ 604 (2004) (TVA).
54

Note: !e heads of agencies in bold are no longer required to be con%rmed by the Senate, due to the enactment of the Presidential Appointment E"ciency and Streamlining Act of 2011. See Pub. L. No. 112-166, 126 Stat. 1283 (2012). By some de%nitions, the Federal Deposit Insurance Corporation is also a government corporation, in addition to being a regulatory agency. !e Department of Justice’s O"ce of Legal Counsel has determined that the EEOC is not an independent regulatory agency. See President’s Authority To Promulgate a Reorganization Plan Involving the Equal Emp’t Opportunity Comm’n, 1 Op. O.L.C. 248 (1977).

Central Intelligence Agency Environmental Protection Agency Federal Housing Finance Agency Federal Mediation and  Conciliation Service General Services Administration National Aeronautics and 

Space Administration National Archives and 

 Records Administration National Endowment for the  Arts and Humanities

Institute for Museum and Library Services National Endowment 

 for the Arts National Endowment  for the Humanities 

O"ce of Government Ethics O8ce of Navajo and Hopi Indian Relocation O"ce of Personnel Management O"ce of Special Counsel O"ce of the Director of  National Intelligence O8ce of the Federal Coordinator  for Alaska Natural Gas  Transportation Projects Peace Corps Selective Service System Small Business Administration Social Security Administration U.S. Trade and Development Agency

Chemical Safety and Hazard Investigation Board Commoditiy Futures Trading Commission Consumer Product Safety Commission Defense Nuclear Facilities Safety Board Equal Employment Opportunity Commission Farm Credit Administration Federal Communications Commission Federal Deposit Insurance Corp Federal Election Commission Federal Labor Relations Authority Federal Maritime Commission Federal Mine Safety and Health Review Commission Federal Reserve Board Federal Trade Commission Merit Systems Protection Board National Credit Union Administration National Labor Relations Board National Mediation Board National Transportation Safety Board Nuclear Regulatory Commission Occupational Safety and Health Review Commission Postal Regulatory Commission Securities and Exchange Commission United States International  Trade Commission

Broadcasting Board of Governors Corporation for National Community Service Corporation for Public Broadcasting Federal Hospital Insurance Trust Fund Board Federal Retirement !ri&Investment Board Federal Supplementary Medication Insurance Trust Fund Board Institute of American Indian Arts Inter-American Foundation Legal Services Corporation Millennium Challenge Corporation National Science Foundation National Security Education Board Railroad Retirement Board United States African  Development Foundation United States Election  Assistance CommissionAdvisory Commissions Administrative Conference  of the United StatesNational Council on Disability Social Security Advisory Board Scholarship Agencies Barry M. Goldwater Scholarship and Excellence in Education Program Harry S Truman Scholarship Found. James Madison Memorial Fellowship Found. Morris K. Udall Scholarship Found.

Corporations/GSEs Export-Import Bank of the U.S. Federal Agricultural Mortgage Corporation Federal National Mortgage Association National Railroad Passenger Corporation (AMTRAK) Overseas Private Investment Corp Tennessee Valley Authority United States Postal Service Non-pro#ts and Cooperatives Nat. Consumer Cooperative Bank National Inst. of Building Sciences Securities Investor Protection Co. State Justice Institute United States Institute of Peace Regional Agencies Appalachian Regional Commission Delta Regional Authority Metropolitan Washington Airport Authority Mississippi River Commission 

Independent Administrations Independent Commissions (regulatory) Independent Commissions

(non-regulatory)

Government Corporations/Other

Table 5. Overview of Agencies Outside the Executive Departments
55

!e larger single-headed agencies include the Social Security 

Administration (67,000 employees), Environmental Protection 

Agency (18,700 employees), and National Aeronautics and Space 

Administration (18,600 employees). !e SSA was formerly part of 

the Department of Health and Human Services. Congress removed 

it from HHS in 1994 in order to remove it from the budgetary and 

managerial pressures of being inside HHS. Among the smaller 

independent administrations are the O"ce of Navajo and Hopi 

Indian Relocation (41 employees) and Trade and Development 

Agency (43 employees). While most administrations outside the 

executive departments look like standard hierarchically structured 

agencies with single heads, some include features that insulate them 

from political interference. For example, the heads of the Social 

Security Administration (six-year term) and O"ce of Personnel 

Management (four-year term) serve for %xed terms. Table 6 includes 

a list of single-headed agencies outside the executive departments 

administered by political appointees with %xed terms.

3. Independent Commissions

!e majority of agencies created outside the EOP and 

executive departments are multi-member bodies, many with %xed 

and staggered terms for members. In general, these agencies tend 

to be smaller than other federal agencies, varying from as many 

as 4,200 employees to just a handful.140 !e most recognizable of 

these independent commissions are the independent regulatory 

commissions, designed with the same structural features as the 

ICC--outside executive departments, multi-member body, for cause 

protections, staggered terms, party balancing requirements, and 

exercising quasi-legislative and/or quasi-judicial power.141 !ese 

agencies are involved in signi%cant ways in regulating the economy, 

from antitrust to banking to labor to communications to consumer 

products.

140. Among the smallest agencies are the James Madison Memorial Fellowship 

Foundation and Harry S Truman Scholarship Foundation with 4 and 5 employees, 

respectively, as of September 2011. See OPM,  FedScope, supra  note  27 

G<)%.(9)!+8 F#A! T 2!%85 UVWWX5 141. See generally Humphrey’s Ex’r, 295 U.S. 602.
56

Table 6. Single-headed Administrations Outside the 

Executive Departments with Fixed Term Appointments

Agency Term Length For Cause Protection Statute

Federal Housing Finance Agency 5 √ 12 U.S.C. § 4512(b)(2)

Institute for Museum and Library Sciences 4 20 U.S.C. § 9103(a)(2)

National Endowment for the Arts 4 20 U.S.C. § 954(b)(2)

National Endowment for the Humanities 4 20 U.S.C. § 956(b)(2)

O"ce of Government Ethics 5 5 U.S.C. app.4 § 401(b)

O"ce of Navajo and Hopi Indian Relocation 2 25 U.S.C. § 640d-11(b)(2)

O"ce of Personnel Management 4 5 U.S.C. § 1102(a)

O"ce of Special Counsel 5 √ 5 U.S.C. § 1211(b)

Social Security Administration 6 √ 42 U.S.C. § 902(a)(3)

!ere are a number of reasons why the independent 

commission structure was and still is appealing to policymakers. 

Beyond the allure of bipartisan or non-partisan expertise being 

applied to complicated national problems, creating new agencies as 

independent commissions also expresses the symbolic importance 

of speci%c policy areas or problems. Independent agencies can focus 

on a narrow task of national importance and not have to compete 

with other sub-department agencies for attention, budgets, or 

personnel.142 Of course, the creation of independent agencies also 

helps mitigate concerns with the delegation of policymaking or 

adjudicatory authority to executive o"cials who may be tempted 

to use this authority for partisan bene%t.143 Historically, most 

policymakers have agreed in principle to the idea of a uni%ed 

executive establishment organized under the President, but justify 

the creation of speci%c independent agencies as a necessary exception 

to this general principle.144

142. Moe Report, supra note 1, at 32.

143. Moe, Bureaucratic Structure, supra note 6; Lewis, Agency Design, supra 

note 6; McCarty, supra note 8; McCubbins et al., supra note 6.

144. Moe Report, supra note 1, at 11; Kosar, Quasi Gov’t, supra note 39.
57

Beyond the classic independent regulatory commissions, 

Table 5 (and Table 4) also includes many commissions with %xed 

terms that neither regulate nor adjudicate. !ey determine 

government media programming, give out research grants, provide 

foreign aid, or manage the retirement accounts of federal employees. 

Some of these agencies are designed simply to provide advice to 

federal policymakers (e.g., National Council on Disability, Social 

Security Advisory Board) or hand out federal scholarships. Yet, these 

agencies have the same structural features as independent regulatory 

commissions. 

!e list of agencies with the features of independent regulatory 

commissions includes independent regulatory and non-regulatory 

agencies, government corporations, scholarship agencies, and 

agencies created to facilitate regional development. !is illustrates 

the general view of scholars about the relationship between agency 

structure and function: there is no direct or necessary relationship.145 

Regulatory and adjudicative authority is delegated to single-headed 

executive agencies and independent commissions. For example, 

the Secretary of Agriculture and the Federal Trade Commission 

both regulate. !e Secretary of Veterans A#airs and the National 

Labor Relations Board both adjudicate. Government corporations 

are created outside the executive departments and are insulated 

from political interference, and they are also included in executive 

departments and headed by single administrators selected by the 

President. !e choice of structure is a political one determined 

by forces in play at the time that Congress and the President are 

deliberating over the creation of new agencies.146

!e presence of independent commissions has been 

controversial in the American political system. !e Brownlow 

Committee charged that “they do violence to the basic theory of the 

145. Peter L. Strauss, !e Place of Agencies in Government: Separation of Powers 

and the Fourth Branch, 84 Colum. L. Rev. 573 (1984); Verkuil, supra note 137, at 

263. Tables 19 and 20, infra, respectively list agencies with adjudicatory authority 

and detail federal agencies’ rulemaking activities in the last %&een years.

146. Moe, Bureaucratic Structure, supra note 6; McCubbins et al., supra note 6; 

Lewis, Agency Design supra note 6; Wood and Bohte, supra note 6; Amy Beth

Zegart, Flawed by Design: The Evolution of the CIA, JCS, and NSC (1999); 

Howell and Lewis, supra note 8. 
58

American Constitution that there should be three major branches 

of government and only three.”147 !e Brownlow Committee also 

complained about commission performance, noting, “For purposes 

of management, boards and commissions have turned out to be 

failures.”148

!e Committee’s concerns have been echoed throughout 

the twentieth century.149 Some scholars have also argued that the 

commissions are easily co-opted by the groups they are supposed to 

regulate. Inequalities in group pressure, appointment patterns that 

rotate industry o"cials into and out of agency management, and 

regular interaction between the agency and the regulated industry 

ultimately make the agency sympathetic to, or “captured” by, the 

industry.150 Many also claim that the promises of expertise and 

bipartisanship have not been realized, arguing that these agencies no 

longer attract the very best persons, and the moderate and bipartisan 

composition of boards has been undermined by the increasing 

appointment of strong partisans or ideologues.151

!e number of commissions of di#erent types and the limited 

empirical evidence across agencies makes it di"cult to generalize 

about the e#ectiveness of independent commissions except to say 

that there are tradeo#s associated with their political independence. 

Agencies designed to be insulated from political interference 

will be autonomous in ways that are useful to policymakers in 

147. President’s Comm. on Admin. Mgmt., supra note 2, at 40.

148. Id. at 32.

149. Critics of the independent agencies lament the fragmentation of policy into 

disparate agencies. For example, President Truman’s decried his own inability to 

formulate and implement a comprehensive transportation policy because this 

policy area was partly the province of the Civil Aeronautics Board, Interstate 

Commerce Commission and Federal Maritime Commission. See Lewis, Agency

Design, supra note 6, at 21-22.

150. Marver Bernstein, Regulating Business by Independent Commission

(1977); George Stigler, !e !eory of Economic Regulation, 2 Bell J. Econ. 114 

(1971).

151. !e increasing polarization of board governance is facilitated by the 

consideration of batches of nominees together, worked out as bargains between 

the President and the parties in the Senate. Neal Devins and David E. Lewis, NotSo Independent Agencies: Party Polarization and the Limits of Institutional Design, 

88 B.U. L. Rev. 459 (2008); Daniel Ho, Measuring Agency Preferences: Experts, 

Voting, and the Power of Chairs, 59 Depaul L. Rev. 333 (2010).
59

some cases and frustrating in others. !eir autonomy can be a 

means of helping them accomplish democratic purposes as with, for 

example, courts. !eir autonomy, however, also shields them from 

direct accountability. 

When agencies are involved in adjudication or making 

decisions with large consequences for markets and society, most would 

agree that agency decisions should be made importantly on the basis 

of evidence and expertise rather than partisan considerations. !e 

features of agency design that limit partisan in$uence are precisely 

those that characterize independent commissions. !e alternative 

to creating these agencies as independent commissions is allowing 

executive departments to make these decisions with either no 

particular protection from partisan in$uence or to limit and con%ne 

the authority of executive o"cials with statutory details or political 

oversight. In complex areas of law and policy, however, precise 

statutes are di"cult to cra& because of the complexity. Detailed 

statutes can be counterproductive if they limit useful $exibility and 

prevent agencies from using expertise they have acquired. In some 

cases political oversight can help limit partisan in$uence in agency 

adjudication and rulemaking, but in other cases it is the source of 

partisan in$uence.

Direct accountability to elected o"cials through 

appointments, removals, and appropriations is useful for monitoring 

agency behavior and correcting agency missteps. !e tradeo# for 

Congress and the President is that the price of insulating agencies 

from politics is a lack of this type of direct democratic accountability. 

!e barriers Congress and the President put in place to insulate 

agencies from politics also make it harder for elected o"cials to 

monitor day-to-day agency behavior. Congress and the President 

still govern independent commissions through oversight and can 

enact new legislation, but the autonomy generated by structure can 

have desirable and undesirable e#ects.
60

4. Government Corporations and Government-Sponsored 

Enterprises (GSEs) 

!e remaining class of agencies in Table 5 o&en shares many 

of the structural characteristics of independent commissions such 

as multi-member governance and %xed terms, but characterizing 

them by these aspects of their design would be insu"cient. 

Congress and the President have experimented with di#erent forms 

of organization that place these agencies on the frontiers of the 

executive establishment and raise legitimate questions as to whether 

they are properly designated as federal agencies. Among this class of 

agencies are government corporations and government-sponsored 

enterprises created outside the executive departments, federally 

empowered non-pro%ts and cooperatives, and federally sponsored 

regional development agencies whose governance is shared by states.

In the twentieth century the federal government became 

increasingly involved in business-related enterprises such as 

operating a merchant $eet, building and renting houses, and lending 

money. Congress was o&en uncomfortable with executive o"cials 

letting out contracts, purchasing property, and selling goods without 

some form of oversight.152 !ey reasonably limited executive 

$exibility to ensure %delity to the public interest in these behaviors. 

!e lost $exibility, however, made operating a business-like venture 

di"cult. One response Congress developed was to create government 

corporations, which are granted both business-like $exibility and 

insulation from political in$uence. Congress struggled with how to 

ensure public accountability and preserve management $exibility at 

the same time.153 Its answer was the Government Corporation Control 

Act of 1945, which tries to regularize government corporation 

accountability without impinging on necessary $exibilities.154

152. Seidman, supra note 6, at 188-89; Kosar, Gov’t Corp., supra note 9.

153. A. Michael Froomkin, Reinventing the Government Corporation, 1995 U. Ill. 

L. Rev. 560 (1995).

154. Not long a&er Congress enacted this statute, it began creating entities 

designated speci%cally as neither agencies nor establishments of the United States, 

and did not subject them to the control of the Corporation Control Act of 1945. 

See Lebron v. Nat’l R.R. Passenger Corp., 513 U.S. 374 (1995).
61

Government corporations are wholly or partially owned 

government instrumentalities155 that perform business-like functions 

and usually do not rely on annual appropriations for funding.156

!ey are chartered by acts of Congress and generally are boardgoverned and exempted from government-wide managerial 

mandates.157 What distinguishes government corporations from 

other federal agencies is the grouping of function, structure, and 

(sometimes) ownership.158 For example, many federal agencies that 

perform business-like functions are not government corporations. 

155. !e mixed-ownership corporations are: Central Bank for Cooperatives; Federal 

Deposit Insurance Corporation; Federal Home Loan Banks; Federal Intermediate 

Credit Banks; Federal Land Banks; National Credit Union Administration 

Central Liquidity Facility; Regional Banks for Cooperatives; Rural Telephone 

Bank (USDA); Financing Corporation; and Resolution Funding Corporation. 

31 U.S.C. § 9101(2) (2012). !e wholly-owned government corporations are: the 

Commodity Credit Corporation (USDA); Community Development Financial 

Institutions Fund (DTRS); Export-Import Bank of the United States; Federal 

Crop Insurance Corporation (USDA); Federal Prison Industries, Inc. (DOJ); 

Corporation for National and Community Service; Government National Mortgage 

Association (HUD); Overseas Private Investment Corporation; Pennsylvania 

Avenue Development Corporation; Pension Bene%t Guaranty Corporation 

(DOL); Rural Telephone Bank; St. Lawrence Seaway Development Corporation 

(DOT); Federal Housing Administration Fund (HUD); and Tennessee Valley 

Authority. Id. § 9101(3).

156. Kosar, Gov’t Corp., supra note 9. !ere are diverse de%nitions of 

government corporations, some encompassing private instrumentalities created 

by Congress or any agency called a corporation. !is report uses the narrower 

de%nition in the text. However, agencies themselves and other government 

agencies employ di#erent de%nitions. Froomkin, supra note 153, at 543; U.S. 

Gen. Accounting Office, GAO/GDD-96-14, Government Corporations: 

Profiles of Existing Government Corporations (1995) [hereina&er GAO, 

Existing Gov’t Corps.].

157. Board governance takes di#erent forms with some managed by full-time 

boards, some by part-time boards that select chief executives, and still others by 

boards comprised of government o"cials. !ere are two government corporations 

that are not governed by boards—the Government National Mortgage Association 

and the St. Lawrence Seaway Development Corporation. Both are located inside 

executive departments. Kosar, Gov’t Corp., supra note 9, at 9.

158. !e current federal corporations located inside executive departments 

are: Commodity Credit Corporation (Agriculture); Federal Crop Insurance 

Corporation (Agriculture); Federal Financing Bank (Treasury); Federal Prison 

Industries (Justice); Financing Corporation; Government National Mortgage 

Corporation (Housing and Urban Development); Pension Bene%t Guaranty 

Corporation (Labor); Presidio Trust of San Francisco (Interior); Resolution 

Funding Corporation; St. Lawrence Seaway Development Corporation 

(Transportation); and Valle Caldera Trust (Interior). !ose located outside the 

executive departments are: Export-Import Bank; Federal Deposit Insurance 

Corporation; National Railroad Passenger Corporation; Overseas Private 

Investment Corporation; Tennessee Valley Authority; and U.S. Postal Service. 

Kosar, Gov’t Corp., supra note 9, at Appendix A.
62

Similarly, many federal entities have similar features to government 

corporations but do not perform business-like functions. Congress 

has also named agencies “corporations” even though they do not 

perform business-like functions and are not self-funding.159 For 

example, the Corporation for Public Broadcasting and the Legal 

Services Corporation are called corporations, but do not perform 

business-related functions and rely on annual appropriations.160

Some government corporations such as the Federal 

Deposit Insurance Corporation (mixed ownership) and Tennessee 

Valley Authority (wholly owned by the federal government) are 

independent agencies that report directly to the President and 

Congress. Others, such as the St. Lawrence Seaway Development 

Corporation (Transportation) and the Federal Housing 

Administration (HUD), exist inside executive departments and 

report to a department secretary. Structurally, corporations have a 

legal personality separate from the United States and can therefore 

sue and be sued.161 Corporations generally have limitations 

on the President’s ability to nominate and remove top o"cials. 

Fiscally, these entities have tremendous $exibility to raise and 

spend funds. !is limits the power of OMB in reviewing agency 

budgets and the ease of congressional oversight of corporation 

activities. Rather, the expectation is that agencies should be selffunding, although Congress will intervene to supplement revenues 

or provide resource for capital improvements or new programs.162 

159. See Seidman, supra note 6, at ch. 11 for details. Congress cannot, by 

designation, determine whether an instrumentality they have created is an 

agency or instrumentality of the United States “for the purposes of determining 

the constitutional rights of citizens a#ected by its actions.” Lebron v. Nat’l R.R. 

Passenger Corp., 513 U.S. 374, 375 (1995).

160. Similarly, the Millennium Challenge Corporation is a grant-giving agency 

that relies on annual appropriations.

161. !e virtue of this feature of government corporations is that it means that 

private %rms can take the corporation to court rather than having to go through 

the arduous contract dispute process. Kosar, Gov’t Corp., supra note 9, at 7; 

Seidman, supra note 6, at 190-91.

162. Some exceptions include the Tennessee Valley Authority. In a 1995 survey, the 

U.S. Government Accountability O"ce found that most government corporations 

received some federal appropriations in Fiscal Year 1994. U.S. Gen. Accounting 

O"ce, supra note 156, at 21-22.
63

Government corporations have the ability to create their own 

personnel system outside the normal civil service system.163

Government-sponsored enterprises (GSEs) perform 

business-like functions as well but are private (yet still governmental 

entities), for-pro%t organizations created to make credit more 

available to certain sectors of the economy.164 !ey are governed by 

a board, the majority of which is selected by private actors, either 

investors or borrowers.165 !ere are currently %ve GSEs, two of 

which are independent agencies outside the executive departments 

(Federal Agricultural Mortgage Corporation and Federal National 

Mortgage Corporation).166 !ese entities are not sta#ed by federal 

employees and do not have the power to exercise governmental 

powers or commit the federal government to expenditures, but the 

markets generally perceive that there is an implicit federal guarantee 

behind these entities.

!e appeal of such organizations derives from expectations 

about e"ciency of operations. Policymakers create organizations 

freed from government-wide management laws, budgetary review, 

and personnel rules, in the belief that they will more e#ectively 

accomplish federal purposes than a traditionally structured 

government agency. Increased $exibility will lead to lower costs, 

greater risk taking, and more innovation. For elected o"cials there 

is also virtue in the fact that creating such entities is not perceived as 

increasing the size of government.

Critics of GSEs note the signi%cant market power of these 

organizations without direct accountability to the federal government. 

Given the perceived backing of the federal government, these %rms 

have market advantages that can translate into signi%cant economic 

and political power. For example, Fannie Mae and Freddie Mac 

163. See id. (%nding substantial variation across corporations and providing a 

thorough review of government corporation adherence to government-wide 

management laws).

164. Kevin R. Kosar, Cong. Research Serv., RS21663, GovernmentSponsored Enterprises (GSEs): An Institutional Overview (2009) 

[hereina&er Kosar, GSEs]. 

165. Id. at 8.

166. Kosar, Gov’t Corp., supra note 9.
64

grew dramatically between 1990 and 2008 and are among the biggest 

%nancial institutions in the country.167 !ey came under congressional 

scrutiny in 2003 and 2004 because of accounting irregularities, and 

in 2008 they had to be placed in government conservatorship to 

stabilize %nancial markets.168 GSEs spent heavily on congressional 

lobbying, and numerous journalistic accounts questioned their 

in$uence in the regulatory regime that contributed to the %nancial 

crisis.169 Both Fannie Mae and Freddie Mac were among the top 20 

lobbying spenders between 1998 and 2008.170

5. Other Forms of Government Agency: Non-pro"ts and 

Regional Agencies

Starting in the 1960s and accelerating in the 1980s, 

Congress also created other organizational forms that possessed 

the characteristics of both government agencies and the private 

sector.171 Notably, Congress has overseen the creation of non-pro%t 

organizations to help pursue public purposes. !e structure and 

connection of these non-pro%ts to the federal government varies. 

!e non-pro%ts included in Table 5 have boards that contain 

presidential appointments that require Senate con%rmation. Nonpro%t organizations are also used as tools for policy implementation 

in many di#erent federal agencies.172 !e non-governmental status of 

these non-pro%ts helps insulate from political direction. !ey do not 

employ federal personnel or come under the jurisdiction of general 

executive branch management powers. For example, the Securities 

Investor Protection Corporation is a non-pro%t chartered under 

167. Kosar, GSEs, supra note 164, at 4.

168. Id.

169. Lisa Lerer, Fannie, Freddie Spent $200 M to Buy In%uence, Politico, July 

16, 2008, available at http://www.politico.com/news/stories/0708/11781.html 

(accessed August 7, 2012); Tom Raum and Jim Drinkard, Fannie Mae, Freddie Mac 

Spent Millions on Lobbying, USA Today, July 17, 2008, available at http://www.

usatoday.com/money/companies/2008-07-17-fannie-freddie-lobbying_N.htm 

(accessed August 7, 2012); Tim Reid, Margaret Chadbourn & Mark Hosenball, 

Fannie, Freddie Tentacles Embraced Many in Washington, Reuters, November 17, 

2011, available at (http://www.reuters.com/article/2011/11/18/us-usa-campaignfreddie-idUSTRE7AH02A20111118 (accessed August 7, 2012).

170. Raum and Drinkard, supra note 169; Tim Reid et al, supra note 169.

171. Kosar, Gov’t Corp., supra note 9, at 1, 4.

172. Id.
65

Washington, DC law and operates as an adjunct of the Securities 

and Exchange Commission. It is governed by a board whose 

members are selected by the Secretary of the Treasury, members of 

the Board of Governors of the Federal Reserve, and the President.173

Its function is to aid persons in retrieving funds from bankrupt or 

troubled brokerage %rms. Congress created the State Justice Institute 

in 1984 as a non-pro%t to distribute federal grants to improve the 

quality of state courts. !e Institute is governed by an 11-member 

board whose members are nominated by the President and con%rmed 

by the Senate. !e United States Institute of Peace was created the 

same year to aid in the goal of resolving international con$ict without 

violence, largely through research and programming. Like the State 

Justice Institute, it is funded through federal monies and managed 

by a board containing presidential appointees, but otherwise is not 

structured like a federal agency. 

Since the 1800s, Congress has also been interested in 

facilitating regional development and has created a number of agencies 

to achieve this goal. !e agencies created to accomplish this goal 

are distinguished by the fact that their governance is shared between 

the federal government and representatives of the states or regions 

concerned. For example, the Appalachian Regional Commission is 

a grant-giving agency created to foster economic development in 

the Appalachian Region. It is governed by a board comprised of 

the governors of 13 states and a federal co-chair. !e Delta Regional 

Authority follows a similar form. Members of its board are drawn 

from the 8 states of the Delta region. !e Metropolitan Washington 

Airport Authority runs the two Washington, DC airports. Its board 

includes 7 members appointed by the governor of Virginia, 4 by the 

Mayor of the District of Columbia, 3 by the Governor of Maryland, 

and 3 members nominated by the President and con%rmed by the 

Senate.174

173. For details, see www.sipc.org. !e board members nominated by the 

President originally required Senate con%rmation. However, the requirement of 

Senate con%rmation was removed by the Presidential Appointment E"ciency Act 

of 2011. See Pub. L. No. 112-166, 126 Stat. 1283 (2012).

174. Another regional agency is the Mississippi River Commission. !e 

commission is comprised of three members selected from the Engineer Corps of 

the Army, one from the National Ocean Survey, and three civilians, two of whom 

have to be civil engineers. 
66

D. Federal Personnel System

!e Constitution provides scant detail about federal 

personnel.175 It includes only a few references to o"cers, consuls, 

and ministers. It speci%es that principal o"cers of the government 

departments are to be nominated by the President and con%rmed 

by the Senate, and that the President may request information from 

them in writing.176 !e Constitution grants to Congress the power 

to determine the means of appointing inferior o"cers.177 Congress 

has used this power in a series of statutes that provide the outlines of 

the personnel system. Presidents and federal agencies have further 

de%ned and augmented the system Congress created through a series 

of executive orders and agency rules.

1. History and Trends 

!e key statute that de%ned the federal personnel system 

was the Civil Service Act of 1883.178 Prior to the enactment of this 

legislation, the federal government had an all-appointee personnel 

system. !e Pendleton Act, as it was known, speci%ed that a small 

portion of federal civilian jobs (about 10.5%) would be %lled on the 

basis of merit proven through examinations. !e act created for 

the %rst time a divided personnel system. F rom this point forward, 

some federal jobs would be %lled on the basis of merit and others 

%lled at the discretion of the President, the President’s subordinates, 

175. William Franklin Willoughby, An Introduction to the Study of The

Government of Modern States 242 (1919); Short, nat’l admin. org., supra 

note 90, at 15, 22, 26; Fairlie, supra note 90, at 55; Moe Report, supra note 1, at 3.

176. !e Constitution provides that the President “shall  nominate,  and  by  and 

C387 87! E":3,! *+" F(+/!+8 (' 87! 2!+*8!@ /7*.. *%%(3+8 E)A*//*"(&/@ (87!&

%#A.3, Y3+3/8!&/ *+" F(+/#./@ Z#";!/ (' 87! 2#%&!)! F(#&8@ *+" *.. (87!& >'-,!&/

(' 87! [+38!" 28*8!/@ C7(/! E%%(3+8)!+8/ *&! +(8 7!&!3+ (87!&C3/! %&(:3"!" '(&@

and which shall be established by Law: but the Congress may by Law vest the 

E%%(3+8)!+8 (' /#,7 3+'!&3(& >'-,!&/@ */ 87!9 873+P %&(%!&@ 3+ 87! ?&!/3"!+8 *.(+!@

in the Courts of Law, or in the Heads of Departments.”  U.S. CONST5 *&85 KK@ \ U. 

177. !e question of what counts as an inferior o"cer is the subject of legal debate, 

but includes the vast majority of federal o"cials.

178. Pendleton Act, 22 Stat. 403 (1883).
67

or other actors Congress had identi%ed.179 Over the next 70 years, 

Congress and the President expanded the coverage and scope of the 

system, o&en under duress from reformers and federal employee 

unions.180 By the middle of the twentieth century, close to 90% of 

federal jobs were covered by civil service laws and regulations.181 

!ese regulations had expanded to include protections against 

removal without cause, the right to unionize, prohibitions against 

political activity, and regularized pay grades and job de%nitions 

(Figure 1).

a) !ickening Government

Since the mid-twentieth century, four trends have shaped the 

federal personnel system. First, there has been an increase in layers of 

management between top agency o"cials and front-line employees. 

!ere has been an increase in both top-level executives and middlelevel managers and supervisors and the ratio of managers to frontline employees has increased. !e number of agency executives such 

as deputy secretaries, under secretaries, and assistant secretaries has 

increased, and with them has come an increase in deputies, chiefs 

179. In general terms, this is still the structure of the personnel system in every 

federal agency. Presidents (or their subordinates) select appointees, usually from 

outside the civil service, to serve at the top of the agency hierarchy. !e other 

employees in the agency, however, are usually selected through procedures 

governed by civil service law and regulation.

180. Ronald N. Johnson and Gary D. Libecap, The Federal Civil

Service System and the Problem of Bureaucracy (1994); Stephen

Skowronek, Building a New American State: The Expansion of National

Administrative Capacities, 1877-1920 (1982); Van Riper, supra note 126; U.S. 

O"ce of Pers. Mgmt, Biography of an Ideal: A History of the Federal Civil Service 

(2003).

181. Protections against dismissal for partisan reasons were added in the late 

1890s, and federal workers gained the right to unionize a&er a decade of pressure 

in 1912. In the 1920s, Congress added pay equity and retirement provisions to the 

civil service system. !e Hatch Act, enacted in 1939, prohibited partisan political 

activity by civil servants. See Lewis, Presidential Appt, supra note 123, at 11-50; 

Martin West, Bargaining with Authority: !e Political Origins of Public-Sector 

Collective Bargaining (2006) (unpublished manuscript, on %le with Harvard 

University). !is %gure overestimates the number of jobs open to presidential or 

agency-head selection. Most of the jobs outside the traditional merit system were 

in agencies like the Tennessee Valley Authority with their own merit systems or 

were jobs overseas where political selection was unlikely. In fact, by the middle 

of the twentieth century, some authors were declaring the era of patronage over. 

Don K. Price, A Response to Mr. Laski, 4 Pub. Admin. Rev. 360-3 (1944); Frank 

J. Sorauf, !e Silent Revolution in Patronage, 20 Pub. Admin. Rev 28-34 (1960).
68

of sta#, assistants, and advisors.182 Paul Light refers to these as “title 

riding” positions—positions whose title depends upon the status 

of another position. Whereas, there were 1.4 title-riding positions 

attached to assistant secretaries on average in 1960, in 1992 the 

number had increased to 5.8 positions. Whereas departments once 

had under and assistant secretaries, they now have deputy under 

secretaries and deputy assistant secretaries. !ey also have principal

deputy under secretaries and principal deputy assistant secretaries. 

Each of these new titled o"cials also frequently have chiefs of sta#, 

special assistants, advisors, or counselors.

182. Light, Thickening, supra note 101.
69

Figure 1. Expansion of Federal Merit System Coverage: 

Percentage of Federal Jobs in Federal Merit System, 1883-1952

1883: Start of the Merit-Based Civil Service System

1953: End of the Truman Administration

 

A number of factors contribute to the thickening. First, 

promotions and titles are a tool used by agency executives to help 

recruit and retain executives in a competitive workplace where 

talented employees have viable private sector options. Since federal 

executives have limited $exibility to use pay to counter private sector 

Additional features:

1. Protections 

against removal 

without cause

2. Right to unionize

3. Prohibitions 

against political 

activity

4. Regularized pay 

grades and job 

de%nitions
70

options, agency o"cials use promotions and titles as a means of 

securing their best talent. Second, the nature of federal work and 

employment is changing from mostly clerical and administrative 

work to professional work (e.g., law, accounting, engineering, science) 

and the administration of contracts and grants. Professionals enter 

public service at the middle to top levels of the federal hierarchy, 

making it thicker. !e federal government has also increased the use 

of grants and contracts to achieve its public policy goals. !is means 

that more federal work is done by state and local employees who 

receive grants and by contractors that are awarded federal contracts. 

!is change in the nature of how the federal government does its 

work means that there will be more managers and fewer front-line 

workers. Finally, as will be discussed in more detail below, federal 

agencies have added management layers as a result of political e#orts 

to secure control over federal agencies. Government work has grown 

in scope, volume, and complexity, and Congress and the President 

have responded by adding layers of political appointees to help direct 

federal agencies. !ey have also added o"cials that monitor agency 

compliance with government-wide management laws and ensure 

ethical behavior. !e number of employees in o"ces of inspectors 

general and general counsels’ o"ces has increased. Together, these 

e#orts have led to a personnel system with fewer persons at the lower 

levels, a thicker middle, and a taller hierarchy.

b) Increase in Political Appointees

A second trend in the federal personnel system is that 

the number and percentage of political appointees has almost 

doubled since 1960 (Figure 2).183 Part of the expansion in political 

appointees comes naturally from an increase in the number of 

federal programs and agencies.184 Political actors have also driven 

the increase in political appointees in an e#ort to gain control over 

federal policymaking. Presidents, particularly, have sought to 

increase the number of political appointees to enhance their control 

over federal agencies. Congress has at times sought to increase 

183. David E. Lewis, Presidential Appointments and Personnel, 14 Ann. Rev. Pol. 

Sci. 47-66 (2011) [hereina&er Lewis, Appt and Personnel].

184. Light, Thickening, supra note 101.
71

the number of o"cials subject to Senate con%rmation to in$uence 

key policymaking positions, but these incidents re$ect only a 

small fraction of the new positions created since mid-twentieth 

century. !e bene%ts of increased political appointees are greater 

for presidents now than in the past, since presidents have asserted 

more control over the selection of political appointees.185 Presidents 

have dramatically expanded White House capacity to vet potential 

nominees by building up sta#s dedicated to personnel.186 Increased 

presidential control over personnel, coupled with increased White 

House capacity, has led presidents since Ronald Reagan to assert 

control of appointees down to the lowest levels. !e Presidential 

Personnel O"ce plays a role in the selection of all four types of 

appointees (PAS, NA, SC, and PA). !ey do so in cooperation with 

top-level agency o"cials, facilitated by an expansion in White House 

liaison positions in the departments and agencies.187

!e number of political appointees has increased most a&er 

party changes in the White House and during periods when the same 

party has controlled the White House and Congress. In the former 

case, presidents feel the need to get control of agencies directed by 

the other party for 4, 8, or 12 years. Congress is more willing to go 

along with these e#orts when the President is from their party, since 

increasing political appointees allows presidents a greater ability to 

get agencies to do what the President and the congressional majority 

both prefer. Increases in political appointees also provide patronage 

opportunities that bene%t the majority party. 

185. Presidents have extended their control of personnel selection down to the 

lowest level appointees. Lewis, Presidential Appt., supra note 123; James P. 

Pfiffner, The Strategic Presidency: Hitting the Ground Running (2nd 

ed. 1996); Thomas J. Weko, The Politicizing Presidency: The White House

Personnel Office, 1948-1994 (1995). 

186. See Dom Bonafede, !e White House Personnel O$ce from Roosevelt to 

Reagan, in The In-and-Outers: Presidential Appointments and Transient

Government (G. Calvin Mackenzie ed.,1987); National Academy of Public

Administration, America’s Unelected Government: Appointing the

President’s Team 21-44 (1983); Mackenzie, supra note 124; Pfiffner, supra 

note 185; Weko, supra note 185. President Truman was the %rst President to 

have a sta# person assigned full time to handle personnel issues. In the Kennedy 

Administration this number increased to 3 persons. !ere was a big jump to 30 

persons in the Nixon Administration and now the personnel operation can swell 

to over 100 persons during the period around the transition. 

187. Pfiffner, supra note 185; Weko, supra note 185.
72

!e increase in political appointees has not been even across 

the executive establishment. Some positions and agencies have been 

targeted more than others. Most of the increase within agencies has 

been in policy-related positions in Washington rather than regional 

posts.188 Political appointees have increased in o"ces that control 

policy, but management directorates, budget o"ces, and general 

counsels’ o"ces have seen an increase in political appointees as well.189 

Across agencies, presidents have notably added political appointees 

to agencies that play a role in presidential management such as the 

O"ce of Management and Budget (budgets, regulatory review), 

the O"ce of Personnel Management (personnel), and the General 

Services Administration (procurement, administrative services).190 

Presidents also have targeted agencies with policy views dissimilar to 

their own.191 !is is particularly the case if these agencies implement 

a policy central to the President’s political agenda.192

!e presence of a signi%cant number of political appointees 

can in$uence agencies di#erently depending upon the types of 

persons selected to %ll positions as well as the ability of the agency 

itself to accommodate large numbers of political appointees. In some 

agencies, political appointees are chosen on the basis of competence 

188. !e number of appointed regional posts has actually declined. Weko, supra 

note 185, at 25.

189. Hugh Heclo, A Government of Strangers: Executive Politics in

Washington (1977). Heclo describes how assistant secretaries for management 

shi&ed from career professionals to political appointees.

190. For details of the increase in appointees in the Bureau of the Budget/O"ce 

of Management and Budget, see Hugh Heclo, OMB and the Presidency—!e 

Problem of “Neutral Competence,” 38 Pub. Int. 80 (1975); Lewis, Presidential

Appt., supra note 123. See also David E. Lewis and Terry M. Moe, Struggling 

Over Bureaucracy: !e Levers of Control, in The Presidency and the Political

System (Michael Nelson ed., 9th ed. 2009) (for details of the increase in the Civil 

Service Commission’s O"ce of Personnel Management).

191. !ere is a signi%cant amount of work that details how Republican presidents 

have targeted social welfare and regulatory agencies. Robert F. Durant, The

Administrative Presidency Revisited: Public Lands, the BLM, and the

Reagan Revolution (1992); Edie N. Goldenberg, !e Permanent Government 

in an Era of Retrenchment and Redirection, in The Reagan Presidency and the

Governing of America (Lester M. Salamon and Michael S. Lund eds.,1984); 

Richard P. Nathan, The Administrative Presidency (1983); Bernard Rosen, 

E"ective Continuity of U.S. Government Operations in Jeopardy, 43 Pub. Admin. 

Rev. 383 (1983).

192. Historically, Democratic presidents have targeted more traditionally 

conservative agencies. Lewis, Presidential Appt., supra note 123.
73

and %delity to the President’s program in order to advance the 

President’s agenda. In other agencies, political appointees are selected 

as a form of patronage to reward campaign or political supporters. 

Appointed positions can be distributed as a form of political capital 

to build support for the President’s program, tie party factions 

together, or engender future good will. !e di#erence in types of 

political appointees can be consequential for management.193

Figure 2. Total Number of Federal Government 

Appointees and Percentage Appointed, 1960-2008

A number of scholars and commissions have noted with 

alarm the increasing number of political appointees in the federal 

executive establishment and argued that having too many political

193. Bear%eld, supra note 124; Mackenzie, supra note 124; Tolchin and

Tolchin, To the Victor, supra  note  124;  TOLCHIN AND TOLCHIN,  PINSTRIPE

PATRONAGE, supra note 124.

Note: Includes salaried PAS, Schedule C, Noncareer SES, and NEA appointments (NEA refers to an earlier form of 

mid-level appointee). Excludes ambassadors, U.S. Marshals, and U.S. Attorneys. Source: 2008 Plum Book, supra 

note 12; David E. Lewis, 2010, Modern Presidents and the Transformation of the Federal Personnel System, 7 The

Forum Article 6. Percentages of entire workforce based upon federal civilian employment data from the O"ce of 

Personnel Management. (See Note to Table 2 for an explanation of appointee abbreviations.)
74

appointees hurts federal management performance.194 Scholars 

generally point to the signi%cantly larger number of political 

appointees in the U.S. government relative to other developed 

democracies and the lack of expertise and short tenures of political 

appointees relative to their careerist counterparts. Observers also 

worry that increases in political appointees decrease morale in the 

civil service, since the jobs with the highest pay and greatest in$uence 

are increasingly taken by political appointees, who o&en know little 

about the agencies or their work. !is makes it di"cult to recruit 

the best and brightest to stay in government service.195 Presidents 

have been among those defending the large number of political 

appointees as necessary to bring responsiveness and energy to the 

federal bureaucracy.196

c) Increase in Agency-Speci#c Personnel Systems

A second trend that characterizes the federal personnel 

system since the mid-twentieth century is that the nation is moving 

away from one central personnel system created by the Pendleton 

Act and de%ned by Title 5 of the U.S. Code, to a more diverse 

system de%ned by multiple distinct personnel systems, speci%c 

to single agencies or classes of employees. !e increased reliance 

on government corporations explains part of the change since 

corporations are usually not subject to the requirements of Title 5. 

In other cases, Congress has explicitly excluded agencies from the 

194. National Commission on the Public Service, Leadership for America: 

Rebuilding the Public Service (1989); National Commission on the Public

Service, Urgent Business for America: Revitalizing the Federal

Government for the 21st Century (2003); but see Robert Maranto, Why the 

President Should Ignore Calls to Reduce the Number of Political Appointees, in The

Heritage Foundation Backgrounder 1413 (2001).

195. Sean Gailmard and John W. Patty, Slackers and Zealots: Civil Service, Policy 

Discretion, and Bureaucratic Expertise, 51 Am. J. Pol. Sci. 873 (2007); Heclo, 

supra note 189; Lewis, Presidential Appt., supra note 123; Ezra Suleiman, 

Dismantling Democratic States (2003).

196. Transcript of Interview at 11, A Discussion with Gerald R. Ford: !e American 

Presidency, March 25, 1977 (American Enterprise Institute).
75

requirements of Title 5.197 !e largest change came in 1970 when the 

Postal Service (736,000 employees) was given authority to create its 

own personnel system. Other agencies followed, such as the Federal 

Deposit Insurance Corporation (1989), O"ce of the Comptroller 

of the Currency (1989), O"ce of !ri& Supervision (1989), Federal 

Aviation Administration (1996), and Internal Revenue Service (1998). 

Table 7 includes a list of all executive departments and independent 

agencies that are authorized to have their own personnel systems, as 

well as those where caps have been placed on the number of persons 

that can be hired with special hiring authorities.

197. See, e.g., 20 U.S.C. § 5608(a)(1) (2012) (the Morris K. Udall Scholarship 

Foundation may appoint personnel without regard to civil service provisions 

of Title 5); 12 U.S.C. § 4515(a) (2012) (o"cers and employees of the Federal 

Housing Finance Agency may be paid without regard to civil service laws); 

20 U.S.C. § 9105(b) (2012) (the Director of the Institute for 

Museum and Library Services may appoint technical and 

professional employees without regard to civil service laws).
76

Table 7. Agency-Speci:c Personnel Systems

Allowing Agency-Speci:c Personnel Authority Restricting Agency 

Authority

Agencies 

whose 

employees 

are excluded 

from the 

de%nition of 

“employee” 

for the 

purposes 

of Title 5.

Entities not 

considered 

agencies or 

establishments 

of the 

United States 

Governmenta

Agencies whose statutes 

permit the agency to 

use an agency-speci%c 

employment systemb

Agencies w/statutory 

limitations on the # of 

employees compensated 

w/o regard to civil 

service provisionsc

AMTRAK

CIA

CNCS

CPB

EXIM

FDIC

LSC

MCC

OPIC

SIPC

TVA

FAMC

NCCB

NIBS

SJI

ARCd

CFTC

CNCS

CPB

DRA

EAC

FCA

FHFA

FED

IAIA

MKUSF

NCCB

NCUA

NIGC

ODNI

OFCANGTP

OMB

SEC

SIPC

SSAB

SJI

USPS

USTDA

ADF

CEA

CEQ

DOE

DHS

DOJ

DOT

DTRS

FCC

FMCS

FRTIB

IMLS

NASA

NARA

NSF

ONDCP

OPIC

SBA

SSA

USTR

Note: Data in column 1 comes from 5 U.S.C. § 5102 (2012). Inclusion or exclusion of agencies in the 

other three columns is based upon agency authorizing statutes. !e table only includes information 

about agencies rather than classes of employees, such as Foreign Service O"cers. It also excludes subdepartment bureaus such as the Federal Aviation Administration, Internal Revenue Service, or the 

O"ce of the Comptroller of the Currency.

a Some agency statutes specify that the agency is not considered an agency or establishment of the U.S. 

Government. By implication, these agencies do not have to follow the civil service provisions that 

apply to government agencies.

b Typically, these provisions are characterized in the statute by language such as “members, o"cers, 

and employees of the agency are not federal employees for any purpose” or “rates of basic pay for all 

employees may be set and adjusted by the agency without regard to civil service provisions.” Some 

agencies’ statutes leave room for the agency to work outside of civil service provisions. For example, 

the O"ce of the Director of National Intelligence may “provide incentives for personnel . . . to serve 

on the sta# of the Director of National Intelligence, on the sta# of the national intelligence centers, on 

the sta# of the National Counterterrorism Center, and in other positions in support of the intelligence 

community management functions of the Director. Incentives may include %nancial incentives, 

bonuses, and other such awards and incentives as the Director considers appropriate.” Because these 

sort of provisions are not accompanied by limitations on the type or number of employees covered, 

these agencies are coded the same as those that categorically exempt all employees.

c While agencies have general (i.e., exists under Title 5) or agency-speci%c authority to take personnel 

actions outside the normal personnel process to account for speci%c agency needs or circumstances, 
77

Table 7. Note, continued

some agencies’ $exibility under such provisions is limited by speci%c statutory provisions. For 

example, some statutes place limitations on the number of employees compensated without regard to 

civil service provisions. Other limitations relate to speci%c job descriptions. For example, technical 

and professional employees, employees performing a speci%c service, or certain managerial employees 

may be compensated under agency-designated salaries. O&en these statutes place limitations on the 

number of exempt (i.e., appointed outside Title 5) employees, whether those limitations are in absolute 

terms (e.g., “no more than 200 employees”) or in percentages (e.g., “no more than 20 percent of all 

agency employees”).

d For the Appalachian Regional Commission (ARC), the Federal Co-chairman, the alternate to the 

Federal Co-chairman, and the sta# of the Federal Co-chairman, are all federal employees.

During the George W. Bush Administration, the President 

worked aggressively to ensure that the new Department of Homeland 

Security had its own personnel system.198 !e President argued that 

a new, more $exible personnel system was necessary for managers 

to ful%ll the department’s mission and to deliver the results elected 

o"cials and the public demanded. !e administration also sought 

to transition the Department of Defense to a new National Security 

Personnel System.199 !ese moves were contentious, and in 2008 the 

Department of Defense announced that it had scrapped plans for the 

new personnel system a&er Congress refused funding for the new 

system.200 If President Bush had been successful at moving defense 

personnel to a new personnel system, fewer than 30 percent of federal 

employees would have remained under the traditional merit system, 

down from 90 percent at the end of the Truman Administration.

Agency executives have increasingly asked Congress for 

authority to create their own human resources policies to allow more 

$exibility in pay and management. Rigid pay restrictions can prevent 

federal managers from being able to recruit and retain the workers 

essential for program management. While there is an ongoing 

198. See David E. Lewis, !e Presidency and the Bureaucracy: Management 

Imperatives in a Separation of Powers System, in The Presidency and the

Political System (Michael Nelson ed., 8th ed. 2005) (providing a full discussion 

of the politics surrounding the creation of the Department of Homeland Security).

199. Christopher Lee and Vernon Loeb, Pentagon Assails Work Rules: Senate Panel 

to Hear Rumsfeld Request for Freedom from Civil Service Laws, Wash. Post, June 

4, 2003, at A25.

200. Brittany R. Ballenstedt, Homeland Security Scraps Plans for Personnel System, 

Gov’t Executive, October 2, 2008, available at http://www.govexec.com/

dailyfed/1008/100208b1.htm (last accessed December 15, 2009).
78

debate about pay di#erential generally, there is general agreement 

that federal pay does not keep up with private sector pay for some 

key occupations, particularly at the top levels.201 Cumbersome hiring 

processes make it hard to attract interested employees. Rules that 

protect federal workers from adverse actions or job changes make 

it di"cult for managers to nimbly restructure or reorganize. !ese 

di"culties make more $exible personnel systems attractive to federal 

managers. 

!e move away from a one-size-%ts-all personnel system 

to a more decentralized system is one response to reasonable 

dissatisfaction with the modern personnel system. !e proliferation 

of distinct personnel systems, however, also makes centralized 

human resource management di"cult. When employees work 

under numerous di#erent personnel systems and rules, it is di"cult 

to centrally monitor employment practices to ensure fairness, %delity 

to merit system principles, and equal pay for equal work. Some 

managers use increased $exibility to more easily accomplish agency 

goals. Others use the $exibility to do precisely what the rules of the 

Title 5 system were created to prevent. When one set of rules governed 

federal employment, it was easier not only to monitor agency work 

but also to centrally manage. If the President or Congress wants to 

direct agency policy in multiple agencies at the same time through 

changes in personnel or personnel policy, there is now no easy way 

for them to do this because expertise about personnel systems has 

devolved to the agencies themselves rather than one central human 

resources agency like the O"ce of Personnel Management. In the 

past there were a number of persons with su"cient expertise in civil 

service laws and regulations to work on behalf of the President or 

Congress, to tell them what was working well or working poorly and 

how to improve performance. Now, with multiple di#erent systems, 

no single person knows enough about federal personnel policy to 

%ll the same role. !e decentralization of the federal personnel 

system has allowed agencies to move productively toward modern 

personnel systems that are more responsive to managers and market 

201. U. S. Gov’t Accountability Office, GAO-12-564, Federal Workers: 

Resultsof Studieson Federal Pay Varied Dueto Differing Methodologies

(2012).
79

pressures, but it has also led to confusion. Speci%c congressional 

committees and their sta#s or private or not-for-pro%t groups may 

be familiar with individual systems, but few people have expertise on 

the entire federal personnel system.

d) Increased Role of Government Contractors

To characterize the employment needs of the federal 

government simply by reference to persons on the federal payroll 

misses another dramatic shi& in the federal workforce over the last 

30 years: the increasing reliance on private contract workers. While 

federal civilian employment has stayed relatively stable, between 

2.7 and 3.0 million over the last 60 years, the number of contractors 

working for the federal government relative to civil servants has 

increased dramatically.202 !e federal government relies on contract 

employees to perform a variety of government jobs from janitorial 

and clerical work to writing regulations and providing security in 

Iraq. Estimates suggest that a signi%cant proportion of the increase 

has come in service jobs. Although no exact count of contract 

employees exists,203 recent estimates suggest that between 7.5 million 

and 10 million contract employees work alongside federal civilian 

employees, up from 4.5 million in 1999.204 By most accounts the 

number of contract employees is increasing.205

202. Paul C. Light, A Government Ill Executed 193 (2008) [hereina&er 

Light, Ill Executed].

203. Two recent statutes require federal agencies to count the number of contract 

employees working for the agency and report such %gures to the O"ce of 

Management and Budget (OMB). !e Omnibus Appropriations Act of 2009 

requires that agencies report to OMB the size of their workforce as of December 

31, 2008, including contract employees. See Pub. L. No. 111-8, 123 Stat. 524 

(2009). !e Consolidated Appropriations Act of 2010 similarly requires that 

each executive agency (except DOD) provide a report to OMB that includes “the 

number and work location of contractor and subcontractor employees, expressed 

as full-time equivalents for direct labor, compensated under the contract.” See Pub. 

L. No. 111-117, 123 Stat. 3034 (2009); Copeland, Federal Workforce, supra 

note 28, at 4.

204. Light, New True Size of Gov’t, supra note 30; Copeland, Federal

Workforce, supra note 28. !e lower estimate comes from Copeland and the 

higher estimate was cited by Rep. Stephen Lynch (D-Mass.) in a recent hearing 

of the House Oversight and Government Reform Committee. See Alyah Khan, 

Include Contract Workers in Federal Workforce Debates, Lawmakers Urged, Fed. 

Computer Wk., May 26, 2011, available at http://fcw.com/articles/2011/05/26/

7(#/!B7!*&3+;B"!A*8!B/34!B('B'!"!&*.BC(&P'(&,!5*/%= (accessed July 24, 2012).

205. Light, Ill Executed, supra note 202, at 197; U.S. Gov’t Accountability
80

!ere are a number of reasons for the increased reliance on 

contracting. First, the virtues of privatization were consistent with 

the dominant managerial philosophy of the era, the New Public 

Management (NPM). !e NPM was the basis of Vice President 

Gore’s National Performance Review, which sought to provide “a 

government that works better and costs less.”206 !e NPM emphasized 

the bene%ts of competition in order to provide managerial $exibility, 

purchase expertise, and reduce costs.207 In practice, competition could 

be encouraged inside government or between government actors and 

the private sector. A second reason for the increase in contracting 

was that it allowed federal managers to work around limitations 

in their own agency environment. Hiring contract employees was 

attractive in some cases because it allowed federal managers to 

circumvent cumbersome hiring practices in the civil service and buy 

capacity and expertise that agencies lacked. !is e#ort was supported 

by the general belief that the federal government should rely on the 

market where it could for the provision of government services.208 

!e hope of proponents of contracting was that the private sector 

would compete for government contracts and this competition 

would make private sector contractors and government employees 

more e#ective and cheaper. !ird, both Republican and Democratic 

elected o"cials in the last 20 years have preferred to keep federal 

employment small. !e hiring of contract employees allows federal 

workforce numbers to decrease or remain steady, yet provides the 

necessary capacity to carry out federal programs.209

!e federal government’s increasing propensity to use 

contract employees is not without its critics. Critics charge that the 

increased role of federal contractors is due in part to the political 

Office, GAO-07-235R, Suggested Areas for Oversight in the 110th

Congress 8 (2006) (report issued by Comptroller General, based on GAO work, 

o#ered three sets of recommendations to “Congressional Leadership”) [hereina&er 

GAO, Areas for Oversight].

206. Kosar, Quasi Gov’t, supra note 39, at 5.

207. Whether or not the use of contractors reduces costs relative to federal civilian 

personnel is di"cult to determine, partly because there are no hard headcounts of 

the number of contract employees.

208. !is general policy dates back to the 1950s when the Bureau of the Budget laid 

out this view in a series of bulletins. L. Elaine Halchin, Cong. Research Serv., 

R42342, Sourcing Policy: Deflected Developments and Issues (2012);

209; Light, Ill Executed, supra note 202, at 190, 192.
81

power of the %rms themselves and that contract employees do not 

necessarily improve performance or reduce costs.210 Supporters of 

the civil service system argue that the increased reliance on contract 

employees undermines national capacity by turning attention away 

from the need to recruit and retain the best and the brightest in the 

civil service. !e Government Accountability O"ce has regularly 

named contract management as one of its high priority issues, citing 

no-bid contracts, understa#ed contract management o"ces, lax 

oversight, poor contracting practices, and cost overruns.211 Federal 

contracts can be large and complicated, and only one or a few 

bidders have the capacity to carry out the contract. !is can lead to 

higher prices, poor oversight, and little accountability. Finally, some 

critics charge that some functions are inherently governmental and 

should not be delegated to private actors, particularly since contract 

employees operate with a pro%t motive rather than public service 

ethic.212 !is issue captured the public’s attention during the war in 

Iraq. Contractors provided essential services including logistics, 

transportation, and private security. !ey trained Iraqi police and 

sta#ed prisons and conducted interrogations in military prisons 

such as Abu Ghraib.213

2. Modern Personnel System

Today, federal civilian jobs are primarily de%ned by a pay 

system and appointment authority. !ere are four main pay systems. 

!e Federal Wage System (FWS) covers blue collar work (trade, 

cra&, skilled, and unskilled laborers).214 !e General Schedule 

(GS) is the pay system for administrative, technical, clerical, and 

professional jobs.215 !e Senior Level and Scienti%c and Professional 

(SL/ST) system establishes pay for high-level non-executive 

210. Kettl, supra note 85. 

211. GAO, Areas For Oversight, supra note 205, at 8; U.S. Gov’t

Accountability Office, GAO-10-883, Opportunities Exist to Increase

Competition and Assess Reasons When Only One Offer Is Received (2010). 

212. Paul R. Verkuil, Outsourcing Sovereignty: Why Privatization of

Government Functions Threatens Democracy and What We Can Do

About It 1 (2007); James P. P%#ner, !e Public Service Ethic in the New Public 

Personnel Systems, 29 Pub. Personnel Mgmt. 54 (1999).

213. Kettl, supra note 85, at 421.

214 See 5 U.S.C. §§ 5341-44 (2012).

215. Id. § 5332.
82

positions above the highest GS pay level.216 Senior management 

positions are de%ned in the Executive Schedule (EX) and the Senior 

Executive Service (ES) pay schedule.217 !e Executive Schedule is 

generally reserved for positions requiring presidential nomination 

and Senate con%rmation, and the ES pay system for managers in 

the Senior Executive Service (SES), right below Senate-con%rmed 

political appointees. Each pay system includes a number of distinct 

pay categories. For example, the GS system includes %&een grades. 

!e grades are attached to positions based upon the responsibility, 

quali%cations, or experience required for the position. Each pay 

grade also includes sub-categories that provide additional $exibility 

for di#erentiating among employees who perform similar work but 

have di#erent quali%cations, experience, or performance levels. In 

the GS system these are called steps.

!e pay system should not be confused with appointment 

authority. Appointment authority comes from the laws, executive 

orders, or rules that authorize a person’s joining the federal service 

and governs the terms of their employment. Pay category and 

appointment authority are distinct but o&en correlated. Top-level 

positions, for example, are %lled through political appointment 

rather than procedures governed by civil service law and regulation 

(appointment authority), and political appointees tend to receive 

the highest salaries (pay category).218 In general terms, the federal 

civil service still is comprised of two types of employees, political 

appointees and civil servants. !e former are selected by the 

President (directly or indirectly through agency heads), usually 

from outside the civil service. !e President has broad authority 

216. Id. § 3104.

217. See id. §§ 5311-18.

218. !is is not true across the board. Some civil servants, particularly those 

with high private sector wages (e.g. doctors, lawyers, engineers), earn more than 

appointees and some positions %lled by political appointment receive relatively 

low salaries if they are positions of a policy or con%dential nature, but are sta#

positions (e.g., con%dential assistants or chau#eurs of top o"cials). Compare, 

e.g., O"ce of Personnel Management, 2012 Pay Tables for Executive and Senior 

Level Employees, http://www.opm.gov/oca/12tables/indexSES.asp (pay tables for 

senior-level federal civilian employees) [hereina&er OPM, 2012 Pay Tables] with

2008 Plum Book, supra note 12 (identifying positions in legislative and executive 

branches subject to noncompetitive appointment and listing applicable federal 

salary schedule or pay system). 
83

to direct the activity of these o"cials, and in most cases they serve 

at the President’s pleasure, with one main exception of %xed terms 

described above and elaborated below. !e latter work under some 

type of merit system, and the ways that the President’s or agency 

head’s ability to hire, %re, promote, and demote these persons is 

restricted by law and regulation.

a) Political Appointees in the Federal Executive Establishment

!ere are four main types of political appointees.219 !e 

most visible political appointments are those nominated by the 

President and con%rmed by the Senate. !e Constitution requires 

that all “ambassadors, other public ministers and consuls, judges 

of the Supreme Court, and all other o"cers of the United States” 

be appointed in this manner.220 Among the most important 

positions nominated by the President and con%rmed by the Senate 

are department secretaries, agency administrators and federal 

commissioners. In 2012 there were approximately 1,130 positions in

the federal executive establishment requiring Senate con%rmation.221

Of these, 186 are U.S. Attorneys and U.S. Marshals, about 190 

are ambassadors, and hundreds are members of small boards or

commissions, o&en serving on a part-time basis.222 !e Senatecon%rmed positions in the departments include deputy, under, and 

assistant secretaries, as well as general counsels and an inspector 

219. For a full description, see Lewis, Presidential Appt., supra note 123, at 22-

25; Lewis, Appt and Personnel, supra note 183, at 52; 2008 Plum Book, supra note 

12, at 197-202.

220. U.S. Const. art. II, § 2, cl. 2.

221. !ere are also 18 persons in the legislative branch agencies such as the 

Library of Congress, Government Printing O"ce, Architect of the Capitol, and 

Government Accountability O"ce nominated by the President and con%rmed 

by the Senate. 2008 Plum Book, supra note 12. !is does not include Senatecon%rmed appointments to judgeships or multi-lateral agencies such as the United 

Nations. In 2012, Congress enacted the Presidential Appointment E"ciency and 

Streamlining Act of 2011, which reduced the number of positions requiring Senate 

con%rmation by 220 positions. See Pub. L. No. 112-166, 126 Stat. 1283 (2012). 

Positions that once required Senate con%rmation can now be %lled by presidential 

appointment without Senate con%rmation.

222. For example, there are 26 Senate-con%rmed appointees on the board of the 

National Foundation on the Arts and Humanities and 16 on the National Science 

Board. All serve in a part-time capacity as members of the board and are paid on 

a per diem basis.
84

general.223 As indicated above, most large sub-department bureaus 

are headed by Senate-con%rmed political appointees. !e heads 

of independent administrations (e.g., Environmental Protection 

Agency, General Services Administration, National Aeronautics 

and Space Administration) and the commissioners of all large 

commissions are positions requiring Senate con%rmation. 

Between Senate-con%rmed political appointees at the top of 

federal agencies and the civil service is a middle level of management 

comprised of a mix of career professionals and political appointees. 

!e Senior Executive Service (SES) is a corps of managers created 

by the Civil Service Reform Act of 1978.224 !e SES is comprised 

of about 7,000 managers distributed across the federal executive 

establishment.225 Career civil servants and other eligible individuals 

may apply to be members of the SES. !e O"ce of Personnel 

Management (OPM) allocates a %xed number of SES positions to 

each agency. !e agency leadership determines which jobs in the 

agency will be %lled by members of the SES.226 !e administration 

can %ll positions designated as SES-eligible general (as opposed to 

career-reserved) positions, either with an existing career member of 

the Senior Executive Service or a political appointee selected from 

outside the SES.227 No more than ten percent of the Senior 

223. !e Department of Defense is something of an outlier since it has 53 positions 

subject to Senate con%rmation. Each of the military services has 7-8 Senatecon%rmed positions, as well as more than 30 additional positions in other parts of 

the Department of Defense. 2008 Plum Book, supra note 12.

224. Pub. L. No. 95-454, 92. Stat. 1191 (1978) (establishing the SES in response 

to a perceived need to provide $exibility in recruiting and retaining quali%ed 

executives).

225. According to data from the O"ce of Personnel Management, as of March 

2012, there were 7,146 career members of the SES, including 681 non-career 

(appointee) members and 122 limited term or emergency appointments. See

O"ce of Personnel Management, FedScope Employment Cubes (March 2012), 

http://www.fedscope.opm.gov/employment.asp.

226. Some positions are designated by agencies as career-reserved and into these 

positions agency heads can only place career members of the SES. See 5 U.S.C. 

§§ 214.401-.403.

227. !e SES was created partly to give presidents more control over managerial 

personnel. Presidents have more ability to move members of the SES as compared 

to other civil servants. For example, presidents can reassign career members of 

the SES “provided the president and the new agency head have been in o"ce 

for at least 120 days and the executive has been given 15 days notice.” Lewis, Presidential Appt., supra note 123, at 23; Lewis and Moe, supra note 190.
85

Executive Service as a whole or twenty-%ve percent of the allocated 

SES positions in an agency may be %lled by political appointees.228 

Some examples of such SES positions include the Director of the 

Johnson Space Center, the General Counsel of the National Archives 

and Records Administration, the Chief of Sta# at the U.S. Agency 

for International Development, and a number of deputy assistant 

secretaries in the executive departments.

!e third category of political appointee is a Schedule C 

appointee. Schedule C positions are those with policy-determining 

responsibilities or positions that require a con%dential relationship 

with a top agency o"cial. !ey are usually lower-level agency 

positions and sta# positions.229 Schedule C appointees serve at the 

pleasure of the agency head, but modern presidents have become 

directly involved in the selection of Schedule C appointees.230 

Persons appointed to Schedule C positions are generally paid less 

than Senate-con%rmed or SES appointees. Most are paid on the GS 

scale from GS 15 down, depending upon the quali%cations of the 

job and their experience. In the spring of 2012 there were 1,443 

Schedule C appointees.231 Some examples of higher-level Schedule 

C positions include Director of Advance for the Administrator of 

the Environmental Protection Agency, the Director of the O"ce of 

Public A#airs for the Chairman of the Federal Trade Commission, 

and the White House Liaison in the Department of the Interior. 

228. 5 U.S.C. § 3134 (2012).

229. Schedule C positions are non-permanent positions. Technically, once a 

person leaves a Schedule C position, the position no longer exists. In any case, 

when an agency wants to appoint a person under Schedule C, it must provide a 

justi%cation to the O"ce of Personnel Management for the position, a description 

of its con%dential and/or policy determining nature, and the pay level. As a 

practical matter, new presidents assume o"ce with a map of where the appointed 

positions were in the previous administration (including SES and Schedule 

C) and start from that point. During a transition, agency heads may appoint a 

limited number of Schedule C appointees under authority delegated by OPM. 

Transitional Schedule C appointees can serve for 120 days and have their tenure 

extended another 120 days. !e agency ultimately must approach OPM about 

formally converting a temporary transitional appointment to a regular Schedule 

C appointment. U.S. O"ce of Personnel Mgmt., Presidential Transition Guide to 

Federal Human Resources Management 12 (2008), available at http://www.chcoc.

gov/Transmittals/Attachments/trans1300.pdf [hereina&er OPM, Presidential 

Transition].

230. Weko, supra note 185; OPM, Presidential Transition, supra note 229, at 12.

231. OPM, FedScope, supra note 27 (Employment Cube - March 2012).
86

!e most common jobs for Schedule C appointees are as special 

assistants, con%dential assistants, speechwriters, press secretaries, 

and special advisors to higher-level political appointees.

!e %nal category of political appointees is comprised of 

positions that, like SES appointees and Schedule C appointees, do 

not require Senate con%rmation. In 2008 there were 314 of these 

persons, the bulk of whom served either in the White House O"ce 

or on minor advisory commissions such as the Advisory Council on 

Historic Preservation, American Battle Monuments Commission, 

or the Christopher Columbus Fellowship Foundation. In 2012, 

however, Congress enacted the Presidential Appointment E"ciency 

and Streamlining Act (Pub. L. No. 112-166), which reduced 

the number of positions requiring Senate con%rmation by 170 

positions. !e a#ected positions include a number of managerial 

positions such as chief %nancial o"cers and assistant secretaries for 

administration. !e act also a#ects a number of appointments to 

minor boards and commissions. Positions that once required Senate 

con%rmation can now be %lled by presidential appointment without 

Senate con%rmation.

!e vast majority of civilian employees, however, are included 

in some form of merit-based civil service system.232 Federal civilian 

work is de%ned by a series of statutes and regulations governing 

how persons are to be hired, %red, promoted, and demoted. !e 

overriding principle is that a person’s treatment in the civil service be 

governed by merit. Persons establish their merit through appropriate 

background quali%cations or competitive examination. Employees 

are granted a series of rights, most notably rights to noti%cation and 

appeal in cases of adverse personnel actions such as demotion or 

removal. While most of the attention federal agencies receive focuses 

on Washington, DC, where most key policymaking employees work, 

only about 12 percent of federal employees work in Washington, DC. 

232. Congress has also granted a number of federal agencies authority to create 

their own personnel systems that de%ne both pay and personnel rules. In general, 

while they provide executives more managerial $exibility, these personnel systems 

have most of the features of the Title 5-based civil service system created originally 

by the Civil Service Act of 1883, Pub. L. No. 16, 22 Stat. 403 (1883).
87

!e remainder work in a network of regional and %eld o"ces, from 

military bases to local Social Security o"ces.
88

Note: Figure excludes PA appointments for work primarily in the White House and on advisory commissions. !e estimate of 600 key policymaking positions excludes ambassadors, U.S. attorneys, and U.S. marshals, as well as part time, non-salaried, and advisory commission posts that require Senate con%rmation.

Agency-Speci%c Personnel

Figure 3. Simpli:ed Depiction of Current Federal Civilian Personnel System

Increasing Pay Increasing Responsibility

Traditional Merit System

Positions vary in pay from GS 7 to GS 15

1,150 Positions7,000 Positions1,500 Positions

Among PAS about 600 are key policymaking positionsTen percent of the SES are political appointees

Schedule C
89

Figure 3 provides a simpli%ed graphical representation of the 

modern personnel system.233 !e triangle re$ects the structure of 

the federal hierarchy with positions at the top higher in both pay and 

responsibility. At the top of the federal hierarchy are presidential 

appointees requiring Senate con%rmation. Of the close to 1,150 

of these positions, about 600 are key policymaking positions such 

as department secretaries, commissioners, and deputy, under, and 

assistant secretaries. Below this class of political appointees in most 

federal agencies is a middle-level of management comprised of the 

Senior Executive Service. Not all agencies have SES employees, 

particularly if they have their own personnel systems. !is is why 

SES managers do not extend all the way across the hierarchy in the 

%gure. In agencies with their own personnel system, managers sta#

these positions governed by personnel rules speci%c to those agencies. 

In agencies such as the Department of Defense or the Department of 

State, uniformed military personnel or foreign service o"cers also 

%ll positions at this level. !e vertical bar that extends down into the 

personnel system represents Schedule C appointees that take policy 

and con%dential jobs from the GS 7 level to the GS 15 level.

!e extent of political penetration varies across the federal 

executive establishment. Some agencies have many political 

appointees penetrating deeply into agencies, and others have few 

political appointees. !e extent of political appointee penetration 

in$uences the “politicization” of di#erent agencies. Agencies with 

more political appointees are more likely to be responsive to the 

White House, have their day-to-day business infused with partisan 

politics, and make promotion decisions in the agency on the basis 

of partisan or political views.234 As a general matter, agencies in the 

EOP and executive departments or agencies structured like executive 

233. !is %gure excludes some classes of excepted personnel, including 

appointments under other hiring authorities such as Schedules A and B relating 

to positions for which standard quali%cation requirements are impractical 

(e.g., chaplains, positions in isolated locations), and for positions where there 

are threshold quali%cation requirements but comparisons among applicants is 

impractical (e.g., new agencies, federal work-study, positions reserved for persons 

with speci%c types of disabilities).

234. David E. Lewis, Presidential Politicization of the Executive Branch in the 

United States, in Executive Politics in Times of Crisis (Martin Lodge and Kai 

Wegrich eds., 2012).
90

departments tend to have the highest percentage of political 

appointees. Among the agencies with the highest percentage of 

political appointees are the O"ce of Management and Budget (EOP, 

7%), Department of Education (executive department, 3.5%), and 

Small Business Administration (independent, 1.35%). Independent 

commissions can have high percentages of political appointees since 

commissioners are usually political appointees and commissioners 

o&en each have a sta# member. !e presence of political appointees 

in these agencies can politicize agencies, but the additional political 

appointees in these agencies are not usually a conduit for White 

House in$uence since commissions have party-balancing limitations 

on presidential nominations.
91

Part IV

The Creation and Design of Federal Agencies

!e number of federal agencies has changed over time 

because new agencies get added to the federal establishment and 

existing agencies get reorganized or eliminated. New agencies 

are usually created to carry out new or substantially recon%gured 

government responsibilities. Agencies are created by statute or some 

form of executive action—executive order, departmental order, or 

reorganization plan.235 In some cases statutes delegate to agencies 

new tasks or responsibilities, and administration o"cials respond 

by creating bureaus, divisions, or o"ces to implement these new 

assignments. !ey generally do so with congressional support. 

However, in some cases the President or administration o"cials 

create new agencies through an executive or departmental order 

that takes Congress by surprise or could not have been enacted 

statutorially. Some prominent examples include the series of civil 

rights agencies created by presidents from Roosevelt to Kennedy 

and the Peace Corps.236 !ese decisions are consequential because 

agencies created by executive action are signi%cantly more likely 

to have features that allow presidents more in$uence over agency 

activities.237

235. Agencies historically have been created by reorganization plan, executive 

order, and departmental order. Starting in the 1930s, Congress routinely granted 

reorganization authority to the President. Under such authority, the President 

was empowered to submit reorganization plans to Congress. !ese plans for 

reorganizing the government (i.e., creation, reorganization, and elimination 

of agencies) would go into e#ect a&er a certain period of time unless Congress 

explicitly disapproved. See, e.g., Peri E. Arnold, Making the Managerial

Presidency: Comprehensive Reorganization Planning, 1905-1996 (2d ed. 

Revised 1998); Arnold, supra note 6; Lewis, Agency Design, supra note 6. !is 

form of reorganization authority lapsed in the 1970s and was not renewed, partly 

because the Supreme Court ruled the legislative veto unconstitutional in 1983, and 

this was the vehicle of congressional involvement. See I.N.S. v. Chadha, 462 U.S. 

919 (1983).

236. Some other recent examples include the Council on Competitiveness and the 

National Biological Survey within the Department of the Interior. Hugh Davis

Graham, Civil Rights and the Presidency: Race and Gender in American

Politics, 1960-1972 (1992); William G. Howell, Power without Persuasion

(2003); Howell and Lewis, supra note 8; Lewis, Agency Design, supra note 6.

237. Howell and Lewis, supra note 8.
92

Instances where administration o"cials have created 

agencies Congress would not have created are not the norm. !e 

President and Congress usually must cooperate on agency creation, 

and the obstacles to executive agency creation are high when the 

President and Congress disagree. New agencies created by executive 

action must not contravene existing law, and their creation must be 

traceable to constitutional or statutory authority as the legal basis for 

the new agency. Of course, the meaning of constitutional provisions 

and statutes is not always clear, and presidents and Congress spar 

over what the law allows. Administration o"cials must secure 

appropriations for the new agencies a&er they have been created, 

but agencies do not have to be formally authorized or given a line 

of their own in the budget.238 !ey can satisfy the requirement for 

authorization by describing the new units in budget documents.239

From the President’s perspective, executive action can 

occasionally be an e#ective form of agency creation when presidents 

can secure appropriations but not authorization for an agency. 

Appropriations are not subject to Senate %libusters, and funds 

for new agencies can be buried in the large appropriations bills. 

238. Speci%cally, the statute provides, in relevant part: 

(a)An agency in existence for more than one year may not use amounts 

(87!&C3/! *:*3.*A.! '(& (A.3;*83(+ 8( %*9 38/ !=%!+/!/ C387(#8 * /%!,3-,

*%%&(%&3*83(+ (& /%!,3-, *#87(&34*83(+ A9 .*C5 K' 87! %&3+,3%*. "#83!/

and powers of the agency are substantially the same as or similar to 

the duties and powers of an agency established by executive order, the 

agency established later is deemed to have been in existence from the 

date the agency established by the order came into existence.(b) Except 

*/ /%!,3-,*..9 *#87(&34!" A9 .*C@ *+(87!& *;!+,9 )*9 +(8 #/! *)(#+8/

available for obligation to pay expenses to carry out duties and powers 

substantially the same as or similar to the principal duties and powers 

of an agency that is prohibited from using amounts under this section. 

31 U.S.C. § 1347 (2012).

239. !e Comptroller General testi%ed in hearings before the House of 

Representatives in 1970 that “as a practical matter, if the expenses of the groups 

are justi%ed in the budget presentations, this is regarded as being adequate for 

this purpose. When they say speci%c authorization by Congress, authorization is 

usually meant to be approved through the appropriations process if not through 

the regular legislative authorization process. In other words, it does not have to be 

speci%cally authorized by separate statute.” Lewis, Agency Design, supra note 6, 

at 192, n. 8 (quoting the 1970 hearings). 
93

Presidents can also create agencies and present them to Congress 

as a fait accompli. For example, President Kennedy created the 

Peace Corps by executive order in 1961,240 an action decried by 

Republicans in Congress. By the time Congress had a chance to 

pass on appropriations for the agency, however, the agency had 

362 Washington employees and hundreds of volunteers working in 

eight di#erent countries overseas, and the Democratic majority in 

Congress defeated Republican e#orts to defund the agency.241

A. Why a New Agency Rather 5an Existing Agencies?

A political decision to create a new agency begs the question 

of why Congress does not delegate new federal responsibilities to 

existing agencies. Generally, Congress creates new agencies to carry 

out federal responsibilities when it does not believe existing agencies 

will e#ectively implement new policies. Existing agencies may not 

have the expertise to carry out new policies. Or, existing agencies 

may resist the delegation of authority because the new policy deviates 

from what the agency perceives as its primary mission.242 Of course, 

agencies themselves have ideological leanings on the basis of their 

mission, history, and the ideology of their employees. !ese leanings 

in$uence delegation decisions.243 !ere is substantial variation across 

240. Exec. Order No. 10,924, 3 C.F.R. § 85-86 (Supp. 1961).

241. Id. at 84; Government Agencies (Donald Robert Whitnah ed., 1983). 

242. James Q.Wilson, Bureaucracy: What Government Agencies Do and

Why They Do It (1989). 

243. Joshua D. Clinton and David E. Lewis, Expert Opinion, Agency Characteristics, 

and Agency Preferences, 16 Pol. Analysis 3 (2008); Epstein and O’Halloran, 

supra note 131; George Krause and Ann O’M. Bowman, Adverse Selection, Political 

Parties, and Policy Delegation in the American Federal System, 21 J.L. Econ. & Org. 359 (2005).
94

the government in the ideology of federal employees.244 Federal 

employees self-select into agencies whose missions they support. 

Democrats are more likely to work in the Department of Labor or 

the Environmental Protection Agency and Republicans are more 

likely to work in the Department of Defense or the Federal Bureau 

of Investigation.245 !is fact in$uences the choices of whether to 

delegate new authority to existing agencies or create a new agency to 

carry out new programs.246 For example, President Roosevelt created 

scores of new agencies during the New Deal rather than delegate this 

responsibility to existing agencies because he feared the conservative 

bureaucracy he inherited from his Republican predecessors would 

not successfully and wholeheartedly implement his programs.247 He 

was also aware of the patronage bene%ts of creating new agencies 

that he could sta#. 

In other cases, new agencies are the result of the larger 

struggle over the new policy. Proponents or opponents of new 

policies demand that new policies will be carried out by agencies 

with speci%c structural features in exchange for their support. !e 

structural features they demand shape the ability of political actors to 

get access to agency decisionmaking. For example, some structures 

insulate the agency from the in$uence of the President or Congress. 

Others provide privileged access to agency decisionmaking for some 

groups and interests. In many cases, there would be no agency 

created at all unless the new agency included certain features that 

244. Joshua D. Clinton, Anthony Bertelli, Christian Grose, David E. Lewis & 

David C. Nixon, Separated Powers in the United States, 56 Am. J. Pol. Sci. 341 

(2012); Robert Maranto and Karen M. Hult, Right Turn? Political Ideology in the 

Higher Civil Service, 1987-1994, 34 Am. Rev. Pub. Admin. 199 (2004); Joel D. 

Aberbach and Bert A. Rockman, In the Web of Politics: Three Decades

of the U.S. Federal Executive (2000); Joel D. Aberbach and Bert A. Rockman, 

!e Political Views of U.S. Senior Federal Executives, 1970-1992, 57 J. Pol. 838 

(1995); Robert Maranto, Still Clashing a&er All !ese Years: Ideological Con%ict in 

the Reagan Executive, 37 Am. J. Pol. Sci. 681 (1993); Joel D. Aberbach, Robert

D. Putnam & B. A. Rockman, Bureaucrats and Politicians in Western

Democracies (1981); Joel D. Aberbach and Bert A. Rockman, Clashing Beliefs 

Within the Executive Branch: !e Nixon Administration Bureaucracy, 70 Am. Pol. 

Sci. Rev. 456 (1976). 

245. Clinton et al., supra note 244.

246. Epstein and O’Halloran, supra note 131; Clinton et al., supra note 244.

247. Seidman, A Typology, supra note 88, at 43.
95

allow broad representation and regular review by Congress.248

B. Agency Reorganization and Termination

Once created, federal agencies are durable but not 

immortal.249 Historically, periods of national upheaval such as wars, 

economic crises, and public scandals have also been periods of 

agency reorganization and termination. National leaders restructure 

the administration to mobilize for war or respond to crises. 

When agencies are held responsible for visible blunders, agency 

reorganization and termination is a natural result. Both the savings 

and loan scandal of the late 1980s and the economic crisis of 2008 led 

to signi%cant changes in the %nancial regulatory agencies. Political 

turnover also leads to agency reorganization and termination. 

When new administrations enter o"ce, agency termination and 

reorganization are not uncommon. !is can re$ect a general desire 

to economize or restructure government. For example, President 

Carter ran for o"ce pledging to reduce the number of government 

agencies from 1,900 to 200 agencies.250 President Reagan sought to 

shrink government and proposed the abolition of several executive 

departments. New administrations also naturally reshuQe 

and reorganize existing agencies in order to accomplish their 

priorities. President Clinton’s successful push for the creation of the 

Corporation for National and Community Service moved a number 

of existing volunteer service programs into this new unit along with 

the new AmeriCorps program. !e creation of the new Department 

of Homeland Security during the Bush Administration led to the 

fundamental restructuring of a number of departments and agencies. 

248. Moe, Bureaucratic Structure, supra note 6; McCubbins et al., supra note 6.

249. In one study of agencies created since 1946, 62 percent had been terminated 

or substantially reorganized by 1997. David E. Lewis, !e Politics of Agency 

Termination: Confronting the Myth of Agency Immortality, 64 J. Pol. 89 (2002); see 

also Daniel P. Carpenter, Stochastic Prediction and Estimation of Nonlinear Political 

Durations: An Application to the Lifetime of Bureaus, in Political Complexity: 

Nonlinear Modelsof Politics (Diana Richards ed., 2000); Herbert Kaufman, 

Are Government Organizations Immortal? (1976).

250. Moe Report, supra note 1, at 15.
96

!is included the dismantling of the U.S. Customs Service and 

Immigration and Naturalization Service into two and three di#erent 

agencies, respectively.251

Political turnover can also generate agency reorganization 

and termination when longstanding opponents of existing programs 

and agencies assume power and seek to eliminate the agencies and 

programs the opposite party previously created. For example, when 

Republicans gained control of the House of Representatives in 1995, 

the House Budget Committee listed 372 agencies, programs and 

authorities for termination.252 !ey succeeded in eliminating the 

National Biological Service, the O"ce of Technology Assessment, 

and Interstate Commerce Commission. !ey also succeeded 

in shuttering the Administrative Conference of the United 

States, although this agency was restarted during the Obama 

Administration. Mitt Romney, the Republican nominee for the 

2012 election, pledged to eliminate the Department of Housing and 

Urban Development and to shrink the Department of Education.253 

Previous e#orts to eliminate large departments or agencies have 

been di"cult, however, since agencies targeted for elimination were 

created because they garnered the support of majorities at one point 

in time and continue to receive substantial support from a#ected 

parties and o&en signi%cant numbers of Congress members and/or 

the administration.

Among the most durable agencies are the independent 

agencies, those outside the executive departments, with features 

such as party-balancing limitations, %xed terms, and OMB-bypass 

authority. !ey seem to be able to withstand periods of upheaval 

and political turnover more e#ectively than other agencies. !ere 

are a number of reasons why this might be the case. Independent 

agencies may produce more moderate policies than executive 

251. See Department of Homeland Security, Who Jointed DHS, available at http://

www.dhs.gov/who-joined-dhs (accessed August 13, 2012).

252. Guy Gugliotta, On the List: Survivors and Newcomers, At Agencies Slated for 

Termination, O$cials Remain Hopeful but Mindful of Pressure, Wash. Post, May 

11, 1995, at A6.

253. Ryan Lizza, Why Romney’s No Reagan, New Yorker, April 17, 2012, available 

at http://www.newyorker.com/online/blogs/newsdesk/2012/04/why-romneysno-reagan.html (accessed August 11, 2012).
97

departments since the median voter on a commission hews more 

closely to the middle of the political spectrum. !ere are also fewer 

opportunities to eliminate these agencies since they o&en bypass 

OMB budget review, and they historically were o&en excluded from 

the President’s reorganization authority.254

While agencies themselves as distinct entities are vulnerable, 

the programs and laws they implement are signi%cantly more 

durable. Congress has been reluctant to give up a task or program 

once it has been created. For example, Congress eliminated the 

Interstate Commerce Commission in 1995, but its functions 

persisted in the Surface Transportation Board in the Department of 

Transportation.255

C. Why do Federal Agency Designs Di9er?

Part of what distinguishes the agencies in the categories 

described above--EOP, executive departments, independent, 

government corporations/other--are speci%c structural features that 

determine agency responsiveness to elected o"cials and agency 

powers. !e previous section of the report described general 

di#erences across agencies based upon their position in the federal 

executive establishment. !is section examines more closely the 

structural features that di#erentiate federal agencies, focusing 

on features that make agencies more or less responsive to elected 

o"cials. It details features that insulate from the President, Congress, 

and both Congress and the President. It also includes aspects of the 

agencies themselves that in$uence their responsiveness, from their 

history to internal structure and rules. It is based largely upon the 

data collection described earlier in the report.

Since the Constitution provides few details about the 

departments and agencies of government, it empowers Congress 

and, to a lesser extent, the President to design the administrative 

apparatus of government. !is has led to tremendous diversity in 

the design of government agencies. Individual choices about agency 

254. Lewis, Adverse Consequence, supra note 129.

255. ICC Termination Act of 1995, Pub. L. No. 104-88, 109 Stat. 803 (1995).
98

design over time are made separately, subject to the interests and 

politics of the moment, not by some grand notion of e"ciency or 

e#ectiveness. Common, but episodic, concerns about the President 

or Congress having too much power have shaped agency design. 

So, too, have concerns about too much concentration of power, due 

process, and representation.

!e default structure in the federal government (i.e., 

what is created if Congress or the President does not specify its 

structure in more detail) is the hierarchically organized agency 

located somewhere within an executive department. !is type of 

agency is subject to the control and direction of the President and 

Congress. At times, Congress and the President have chosen to 

deviate from this design and insulate agencies from the President 

and/or Congress. Sometimes one or the other branch will agree to 

give up some in$uence over the agency a&er creation, in exchange 

for a concession in another part of the authorizing legislation.256 In 

other cases, one branch, backed by public pressure, will more or less 

force the other branch to accept the creation of an agency insulated 

from presidential or congressional interference.257 On occasion, both 

branches realize the wisdom of limiting their own in$uence over 

agencies. For example, with the creation of the Federal Reserve, the 

President and Congress admitted the necessity of an independent 

central bank that would manage monetary policy without regard to 

electoral or political pressures.258 !eir belief was that a central bank 

immune from political pressures to in$ate or de$ate the currency 

would lead to better economic policymaking in the long run.

1. Insulating Agencies from the President

Beyond the Constitution’s vesting of executive power in 

the President, the President’s primary means of in$uence over 

government agencies are through the nomination and removal of 

political appointees, and the President’s assertion of control, via the 

256. McCarty, supra note 8; McCubbins et al. supra note 6.

257. Lewis, Agency Design, supra note 6; Moe, Bureaucratic Structure, supra

note 6.

258. See Federal Reserve Act, Pub. L. No. 63-43 (1913).
99

O"ce of Management and Budget, over agency budget submissions, 

rules, and agency legislative proposals and testimony. Presidents 

also have claimed control over agencies through centralized 

control over litigation.259 !e primary means by which agencies are 

insulated from presidential or congressional control is to include 

features in agency statutes that mitigate one or more of these means 

of presidential in$uence. Of course, presidents themselves are also 

constrained by their constitutional duty to see the laws faithfully 

executed and by the content of statutes.

a) Multi-member Bodies

Limiting presidential in$uence over personnel can be done 

in a number of ways. First, agencies can be created as commissions 

rather than administrations. Commissions limit the President’s 

in$uence by increasing the number of actors the President (or 

Congress) must in$uence to direct agency policy. !e creation 

of the Federal Reserve in 1913 is a good example. Congressional 

architects of the new agency purposefully chose a board, reasoning 

that it would be easier to protect a board from political pressure than 

a single individual.260 Statutes provide di#erent amounts of detail 

concerning the functioning of commissions with regard to quorums 

and dealing with ties.261

b) Limitations on Appointments

Congress can also provide for few or many political appointees 

within the agency, or can in$uence the types of persons the President 

may select. As discussed above, there is substantial variation across 

the executive establishment in the depth and penetration of political 

appointees. F eatures of the agency, such as limitations on the types 

259. Presidents can also in$uence agencies in less direct ways such as controlling 

o"ce space, procurement, civil service and personnel rules, and assistance in 

dealing with other agencies. Strauss, supra note 145, at 573; Moreno, supra note 

130, at 500.

260. Robert Eugene Cushman, The Independent Regulatory Commissions

(1972); Lewis, Agency Design, supra note 6.

261. Agencies whose statutes do not include quorum provisions determine such 

rules in by-laws or by administrative rules and practice. A list of agencies with 

quorum provisions is included in Table 4.
100

of persons eligible to serve, limit White House in$uence by shrinking 

the President’s pool of potential nominees and decrease the chances 

that the President will be able to select exactly the person of his 

choice for a position. As an extreme example, consider the following 

language from a bill in 1916:

Provided further, !at of the vacancies created in 

the Judge Advocate’s Department by this act, one 

such vacancy, not below the rank of Major, shall be 

%lled by the appointment of a person from civil life, 

not less than forty-%ve nor more than %&y years of 

age, who shall have been for ten years a Judge of the 

Supreme Court of the Philippine Islands, shall have 

served for two years as a Captain in the regular or 

volunteer army, and shall be pro%cient in the Spanish 

language and laws.262

According to the New York Times, there was only one person 

that %t this description and he lived in the district of James Hay, 

the Chairman of the House Committee on Military A#airs, who 

also served on the conference committee reconciling House and 

Senate di#erences on the bill.263 !e statute more or less selects 

the person for the post for the President. While this example is of 

dubious constitutionality, it illustrates how limitations on political 

appointees can limit the President’s power.264 In 1976 the Supreme 

262. 39 Stat. 169. 

263. Army Bill Joker Aims to Rob Wood of Honor Medal, N.Y. Times, May 19, 1916.

264. At some point, Congress’s delineation of quali%cations is e#ectively a selection 

that would infringe on the President’s power to nominate persons to the principal 

o"ces of government. In Myers v. United States, the majority opinion stated: 

It is argued that the denial of the legislative power to regulate 

removals in some way involves the denial of power to prescribe 

quali%cations for o"ce, or reasonable classi%cation for promotion, 

and yet that has been o&en exercised. We see no con$ict between 

the latter power and that of appointment and removal, provided, of 

course, that the quali%cations do not so limit selection and so trench 

upon executive choice as to be, in e#ect, legislative designation.

272 U.S. 52, 128 (1926). Congress and the President disagree about when 

congressional prescription of quali%cations unduly interferes with legitimate 

executive choice. !ese disagreements have been articulated in signing statements 

by Presidents George H.W. Bush, Bill Clinton, and George W. Bush. Henry B. 
101

Court invalidated a 1974 statute creating the Federal Election 

Commission that included a provision specifying that Congress 

appoint four members of the Commission.265 !e Court stipulated 

that the commission’s “administrative functions may ... be exercised 

only by persons who are ‘O"cers of the United States’ ” and 

appointed in a manner consistent with their constitutional position 

(i.e., nomination by the President and con%rmation by the Senate).266 

Limitations on who can be nominated or named to appointed 

positions come in a variety of forms. Some of the quali%cation 

requirements are quite general. For example, appointments to be 

the Archivist of the United States are to be made “without regard 

to political a"liations and solely on the basis of professional 

quali%cations required to perform the duties and responsibilities of 

the o"ce of the Archivist.”267 On the other hand, the Director of the 

Federal Housing Finance Agency must have extensive understanding 

of %nancial management, capital markets, mortgage securities, and 

housing %nance and “may not ... have served as an executive o"cer 

or director of any regulated entity or entity-a"liated party at any 

time during the 3-year period preceding the date of appointment.”268 

!e Secretary of Defense must be appointed from civilian life and 

be at least 7 years removed from active duty.269 !e best known 

limitation is the requirement for party-balancing on some multimember bodies. Statutes creating these agencies state that “no 

more than x members of the commission can be from one political 

party.”270 Other limitations require speci%c backgrounds, expertise, 

or demographic characteristics. Table 8 includes a list of agencies 

Hogue, Cong. Research Serv., RL33886, Statutory Qualifications for

Executive Branch Positions (2010).

265. Buckley v. Valeo, 424 U.S. 1 (1976).

266. Id. at 141.

267. 44 U.S.C. § 2103(a) (2012).

268. 12 U.S.C. §§ 4512(b)(1), (g) (2012); Hogue, supra note 264.

269. 10 U.S.C. § 113(a) (2012).

270. On at least one occasion, Congress has attached party-balancing requirements 

to non-commissions. In 1968, Congress created the Law Enforcement Assistance 

Administration and stipulated in the legislation that the agency would be headed 

by an administrator and two associate administrators, but that no more than two 

of these three o"cials could be from the same political party. See Omnibus Crime 

Control and Safe Streets Act of 1968, Pub. L. No. 90-351, 82 Stat. 197 (1968).
102

whose authorizing statutes contain explicit provisions detailing the 

background or quali%cations of agency heads.

Among the most binding of restrictions on appointments 

are cases where the statute either speci%es that speci%c government 

o"cials serve on the board or that other actors such as a state governor 

may select a portion of the members. For example, the board of the 

Millennium Challenge Corporation (MCC) includes the Secretary 

of State, Secretary of the Treasury, U.S. Trade Representative, 

Administrator of the U.S. Agency for International Development, 

the CEO of the MCC, and four members selected by the President 

and con%rmed by the Senate from lists provided by congressional 

leaders.271 !e Mississippi River Commission is governed by a board 

that includes three persons from the Army Corps of Engineers, 

one from the National Oceanic and Atmospheric Administration, 

and three other persons, two of whom must be civil engineers.272 

Mixed ownership corporations have persons selected by investors 

or shareholders, and presidential appointees are a minority of board 

members. Table 9 includes a list of agencies with these types of 

restrictions.

271. 22 U.S.C. § 7703(c)(3)(A) (2012)

272. 33 U.S.C. § 642 (2012)
103

(1) 

Citizen 

of the 

United 

States

(2) 

Civilian

(3) 

Geographic

(4) 

Demographic

(5)

 Expertise

(6) 

Con$ict of Interest

(7) 

Congressional 

Input

(8) 

Party Balancing

AMTRAKBBGCPBDNFSBFCAFCCFHFANRCTVAUSITC

DNFSBDODMRCNASASBA

AMTRAKARCCPBDRAFEDMWAANIBSNSFSIPCTVA

CNCSIAIANCDNSFNIGC*

ACUSADFAMTRAKBBGCEACEQCSHIBCFTCCPSCCNCSCPBDNFSBEACEXIMFCAFDICFECFHFAFMSHRCFEDFRTIBHSTSFIMLSIAIAIAFJMMFFLSCIRSOB*

MSPBMCCMRCMKUSFNARANCCBNCDNCUANIBSNSFNSEBNTSBOSHRCOSCODNIOPICPCLOBPRCRRBSIPCSBASSABSJITVAUSIPUSITCUSPSSTB*

AMTRAKARCCFTCCPSCDNFSBDODDTRSFCAFAMCFCCFDICFHFA

MWAANCUANIBSNMBPRCRRBSECSIPCUSPSUSTRBVA*NIGC*STB*

AMTRAKEACFRTIBHSTSFJMMFFMCCMKUSFPCLOBSSABUSPS

ADFAMTRAKBBGCFTCCPSCCNCSCPBDNFSBEEOCEXIMFCAFAMCFCCFDICFECFHITFBFLRAFMCFSMITFBFTC

HSTSFIAFJMMFFLSCMSPBMWAAMKUSFNCUANMBNTSBNRCPCLOBPRCSECSSABSJIUSIPUSITCUSPSFERC*NIGC*STB*

Table 8. Statutory Limitations on the Types of Persons Who Can Be Nominated 

as Department or Independent Agency Heads by the President

Note: !is list includes only executive departments, not the sub-department agencies, except commissions with %xed terms inside an executive department which are indicated with an asterisk (*) and italics. (1) Statute mandates that board members or commissioners or the agency head must be citizens of the United States. (2) Statute mandates that board members or commissioners or the agency head must be civilians. (3) Statute places a geographic limitation on the nomination/selection of board members or commissioners or the agency head. (4) Statute places a demographic limitation on the nomination/selection of board members or commissioners or the agency head. For example, some statutes require the President to appoint members so that a Board will be diverse according to race, ethnicity, age, gender, or other characteristics “to the maximum extent possible,” “as nearly as practicable.” (5) Statute places an expertise or experience limitation on the nomination/selection of members or commissioners or the agency head. (6) Statute places a con$ict of interest limitation on the nomination/selection of members. (7) Statute provides some mechanism for congressional input in the nomination process aside from con%rmation. For example, a statute may require that a person be “appointed by the President a&er taking into consideration the recommendation made by the Speaker of the House.” (8) If the agency is a commission or has a board of directors, the statute limits the number of members who may serve from the same party.
104

Board Includes Speci:c Government O8cials Other Actors Get to Select Some Board Members

ARC Governor of each participating state BGSEEP Congressional selection of some membersBBG Secretary of State FAMC Holders of common stock get to select some membersDRA Governor of each state that participates JMMFF President selects members of Congress & judges based upon 

recommendations of congressional leadership & Chief Justice 

FDIC Comptroller of the Currency, Director of CFPB MWAA Governors of VA & MD select members as does Mayor of DC. FHITF Commissioner of Social Security; Secretary of the Treasury; 

Secretary of Labor; Secretary of Health & Human Services

MCC President selects some members from list provided by leadership 

in Congress 

FSMITFB Commissioner of Social Security; Secretary of Treasury; 

Secretary of Labor; Secretary of Health & Human Services

RRB President selects from lists provided by employees, employers.

HSTSF Secretary of Education or his designee SIPC Sec of Treasury selects one & Fed Board selects another. 

Table 9. Boards or Commissions Whose Membership the President Does Not Fully Select
105

IAF !ree from agencies concerned with inter-American a#airs, U.S. 

Exec Director or Alt Exec Director of the Inter-Amer Devel Bank

SSAB Congressional selection of some members

MCC Sec of State; Sec of Treasury; Admin of the U.S. Agency for Int 

Development; CEO of the Corp; U.S. Trade Representative

SJI 11 PAS members, 6 state judges & one state court admin appointed from 

a list submitted by the Conference of Chief Justices

MKUSF Sec of Interior or designee; Sec of Education or designeeMRC 7 PAS members, three from Engineer Corps of the Army, one from 

the National Oceanic and Atmospheric Administration

AMTRAK Secretary of TransportationOPIC

Admin of USAID, U.S. Trade Rep, one o"cer of DOL

USIP

Sec of State or designate approved by the Senate; Sec of Defense or designate approved by the Senate; President or VP of the NDU

NSEB

Sec of Defense; Sec of Education; Sec of Commerce; Sec of State; Dir of Central Intelligence; Chair of the NEH

ADF

Two members are appointed from among o"cers & employees of agencies of the U.S. concerned with African a#airs

Board Includes Speci:c Government O8cials Other Actors Get to Select Some Board Members

Table 9. Boards or Commissions Whose Membership the President Does Not Fully Select, continued
106

!ere are ways Congress and the President can circumvent 

such restrictions. Congress has granted waivers in law to 

quali%cations requirements in cases where it has seen %t to do so.273 

In addition, Congress may impose any quali%cation requirements it 

prefers on nominees through the con%rmation process, even if it does 

not write them into law. Presidents may use recess appointments to 

circumvent quali%cation requirements in cases where a nominee’s 

quali%cations have been called into question. Finally, few 

quali%cations requirements are speci%c enough to limit substantially 

the President’s discretion. For example, in the a&ermath of Hurricane 

Katrina, Congress amended the quali%cations requirements for 

the FEMA Administrator to read: “!e Administrator shall be 

appointed from among individuals who have—(A) a demonstrated 

ability in and knowledge of emergency management and homeland 

security; and (B) not less than 5 years of executive leadership and 

management experience in the public or private sector.”274 Even by 

this standard, Michael Brown, the FEMA Administrator at the helm 

of FEMA at the time of Katrina, arguably would have quali%ed. In 

the case of party-balancing requirements, presidents have been able 

to %nd members of the opposite party or independents who share 

the President’s ideology to serve on commissions. 

c) Protections Against Removal

Arguably the most important limitations on the President’s 

personnel powers are limits on the President’s ability to remove 

agency o"cials (Table 10).275 As discussed above, many statutes 

provide agency o"cials with %xed-term appointments and indicate 

273. For a full discussion, see Hogue, supra note 264, at 9-11.

274. Post-Katrina Emergency Management Reform Act of 2006, Pub. L. No. 109-

295, §§ 503(c)(2)(A)-(B), 120 Stat. 1355, 1397 (2006) (codi%ed at 6 U.S.C. § 313).

275. In some cases, Congress has vested authority for removal in themselves or 

other executive o"cials. For example, the statute creating the Tennessee Valley 

Authority provides that members of the board can be “removed from o"ce at any 

time by concurrent resolution of the Senate and House of Representatives.” !is 

provision has not been challenged, but is of dubious constitutionality. Tennessee 

Valley Authority Act of 1933, 48 Stat. 58 (1933) (codi%ed as amended at 16 U.S.C. 

§ 831). Board members of the Legal Services Corporation may be removed “by a 

vote of seven members” for certain reasons. 42 U.S.C. § 2996c(e) (2012).
107

that the President cannot remove the o"cial except “for cause.”276 

!e act creating the ICC, for example, prohibited removal except 

for “ine"ciency, neglect of duty, or malfeasance in o"ce.”277 Term 

lengths vary from as short as one year to as long as fourteen years 

for members of the Board of Governors of the Federal Reserve.278 In 

some multi-member agencies, the terms of members are staggered 

so that positions do not all come open at once, preventing a President 

from dramatically changing commission policy quickly through 

appointment. Provisions creating staggered terms include language 

that %xes the original terms of board or commission members so that 

nominations in future years will be staggered. O&en one member 

can be nominated for a term ending a&er one year, another for a 

term ending a&er two years, etc. All subsequent nominees to those 

positions can serve full terms. 

!e issue of %xed terms for political appointees and for cause 

protections has been highlighted in the Supreme Court’s decision 

in Free Enterprise Fund v. Public Company Accounting Oversight 

Board, where the Court invalidated an agency that had double 

“for cause” protections against removal.279 Because the agency’s 

principal o"cers had for cause protections and a commission inside 

the agency also had for cause protections, the Court ruled that this 

unconstitutionally infringed on the executive’s power. Table 11 

includes a list of agencies with double for cause removal protections 

from the decision.

276. More generally, throughout the nation’s history, Congress has attempted to 

reserve the right to weigh in on removals of Senate-con%rmed appointees. !e 

speci%c language communicating “for cause” protection varies. Some statutes 

prohibit removal except for “good cause” or “cause.” Others prohibit removal 

except for cases of “ine"ciency, neglect of duty, or malfeasance in o"ce.” Barnett, 

supra note 133, at 1372, 1383.

277. Interstate Commerce Act of 1887, Pub. L. No. 49-104, § 11, 24 Stat. 379 (1887). 

Interestingly, some scholars argue that this provision actually made it easier for the 

President to remove a commissioner under the laws in place at the time the act was 

enacted. !e Tenure of O"ce Act of 1867 prohibited the President from removing 

Senate-con%rmed o"cials without Senate approval. See id., March 2, 1867, c. 154, 

14 Stat. 431 (1867). !is provision allowed the President removal power without 

Senate involvement. Seidman, supra note 6, at 184.

278. !e head of the Government Accountability O"ce, an agency in the legislative 

branch, serves a term of 15 years. 31 U.S.C. § 703.

279. 130 S. Ct. 3138 (2010).
108

 (1)

Fixed Term (FT)

(2)

Explicit Provisions for Staggered Terms (ST)

(3)

Explicit “For Cause” Protections (FC)

(4)

Provisions for Continuation of Service (C)

One YearFAMCTwo YearsONHIR!ree YearsACUS*BBGLSCMCCNCCBNCDNIBSNMBOPICSIPCSJIFour YearsEACEXIMFHITFBFRTIBFSMITFBIMLSNEANEHNSEBOPMUSIPFive YearsAMTRAKCHSIBCFTCCNCSDNFSBEEOCFCCFHFA

FLRAFMCNLRBNTSBNRCOGEOSCRRBSECTVASix YearsADFBGSEEPCPBFCAFDICFECFMSHRCHSTSFIAIAIAFJMMFFMWAAMKUSFNCUANSFOSHRCPCLOBPRCSSASSABSeven YearsCPSCFTCMSPBUSPSNine+ YearsFED (14)MRC (9)USITC (9)

ADFBGSEEPBBGCFTCCPSCDNFSBEACEXIMFCAFECFMCFMSHRCFEDFRTIBFTCHSTSFIAIAIAFJMMFFMWAAMKUSFNCDNCUANIBSNLRBNRCOSHRCOPICPRCSECSIPCSSABSJIUSIPUSITCUSPS

CHSIBCPSCCPBFHFAFLRAFMCFMSHRCFEDFTCIAIALSCMSPBMWAANCCBNLRBNMBNTSBNRCOSHRCOSCPRCSSASJIUSIPUSPS

ACUS**ADFAMTRAKBGSEEPBBGCFTCCPSCCNCSCPBDNFSBEACEEOCEXIMFCAFAMCFCCFDIC**FECFHITFBFHFAFLRAFMCFEDFRTIBFSMITFBFTCIAIAIAF

JMMFFLSCMSPBMKUSFNCCBNCDNCUANEANEHNIBSNMBNTSBONHIROSCOPICPCLOBPRCRRBSECSIPCSSASJITVAUSIPUSITCUSPS

Table 10. Limitations on the President’s Removal Power in Independent Agencies

Note: (1) Statute speci%es the term of members, commissioners, or agency heads. (2) Some statutes for commissions have provisions specifying the initial original term lengths so that terms will be staggered. (3) Statute states that members of the commission or board or the agency head may only be removed for “neglect of duty,” “malfeasance in o"ce,” “ine"ciency,” or similar language. (4) If an agency member, commissioner, or agency head has a %xed term, this column indicates whether statute provides that, when such person’s term has expired, he or she may serve until a successor has been appointed and quali%ed or some other point should no replacement be found. *!e Chairman of ACUS is appointed for a 5-year term by the President, by and with the advice and consent of the Senate. Members of the Council serve three-year terms and members of the Assembly serve two-year terms. **Statutes for ACUS and FDIC explicitly provide that their respective Chairman may serve until a successor is appointed. !e following commissions have limitations on the President’s removal power over commissioners, but are sub-department within executive departments and, therefore, not listed in the table above: BVA (6 years, FC, C); FERC (5 years, ST, FC, C); FCSC (3 years, ST, FC, C); IRSOB (5 years, ST); NIGC (3 years, ST, FC, C); STB (5 years, ST, FC, C); USPC (6 years, C). Of note, as well, the head of OFCANGTP may serve until one year a&er the pipeline is complete. NSEB members may serve up to four years, but the President determines the actual term length. Lastly, the statute for the MWAA states that members may not serve a&er the expiration of their term. 
109

Table 11. Agencies with Explicit Double “For Cause” Protections

Traditional Double “For Cause” “For Cause” and Career 

SES Employees

“For Cause” and 

Administrative Law Judges

Agency Second 

Level

Statutory Provision

FLRA FSLRB “!e Chairperson [of the FLRA, who also chairs the Board] may remove any other Board member . . . for 

corruption, neglect of duty, malfeasance, or demonstrated incapacity to perform his or her functions . . . .” 22 U. S. C. § 4106(e) 

BVA (DVA)CSHIBCPSCDOED/PBObFERC (DOE)FLRAFMCFMSHRCFTCMSPBNLRBNMBNRCNTSBOSCPRCSSASTB (DOT)USCCRc

CFTCUSDADOEDDOEFERCHHSDHSHUDDOIDOJDOLDOTEPAFCCFLRAFMCFMSHRCFTCNLRBOSHRCSECSSAUSITCUSPS

GSA CBCA “Members of the Civilian Board shall be subject to removal in the same manner as administrative law judges” 41 

U. S. C. § 438(b)(2)a

SSA OCA “!e Chief Actuary may be removed only for cause.” 42 U. S. C. § 902(c)(1)USPS IG “!e Inspector General may at any time be removed upon the written concurrence of at least 7 Governors, but only 

for cause.” 39 U. S. C. § 202(e)(3)

Source: Free Enter. Fund, 130 S. Ct. at 3184-215 (Appendix A) (Breyer, J., dissenting). Agencies in the second column are Foreign Service Labor Relations Board (FSLRB), Civilian Board of Contract Appeals (CBCA), O"ce of the Chief Actuary (OCA), and Inspector General (IG).a Since the members of the Civilian Board of Contract Appeals are to be treated as administrative law judges, their removal is governed by the Merit Systems Protection Board, whose members are protected by “for cause” provisions. Justice Breyer also included in his dissent agencies with “for cause” protections and SES career professionals and administrative law judges. Id. b Refers to the Performance-based Organization for Student Financial Assistance, a “discrete management unit” within the Department of Education. See 20 U.S.C. § 1018(a).c So listed in Appendix A to Justice Breyer’s dissent, see Free Enter. Fund, 130 S. Ct. at 3184-215 (Appendix A) (Breyer, J., dissenting), though the Civil Rights Commission has no political appointees requiring Senate con%rmation. 
110

Selection Retention

(1)

Chair selected by 

President with 

Senate con%rmation

(2)

Chair selected by President 

without Senate con%rmation

(3)

Chair elected by 

members

(4)

Chair designated as o"cial 

who serves in another position 

in the administration

(5)

Fixed term for chair

(6)

For cause protections 

for chair

(7)

Statute explicitly states 

that chair serves at 

pleasure of President

ACUSARCBBGCHSIBCFTCDRAEXIMFDICFEDMSPBNCUANTSBPCLOBRRBBVA*FCSC*NIGC*

ADFDNFSBEEOCCEACEQFCAFAMCFCCFLRAFMCFMSHRCFRTIBFTCIAFMRCNCDNLRBNRCOSHRCOPICPRCSIPCSSABUSITCFERC*STB*USPC*

AMTRAKARCCNCSCPBDRAEAC

**

!

FECIAIAJMMFFLSCMWAANCCBNIBSNMB

**

NSFSJITVA

**

USIPUSPSIRSOB*

FHITFBFSMITFBMCCNSEB

PAS ChairACUSEXIMFDICFEDNTSBUSITCBVA*FCSC*NIGC*PA ChairSSABUSITCElectedCPBIAIALSCNCCBNMBNSFSJIUSIP

CSHIBBVA*NIGC*

CFTCEXIMFAMCNRCPRCSSAB

Table 12. Chair Selection and Retention Rules for Multi-Member Bodies

Note: *Agency is a commission inside an executive department rather than a commission outside the executive departments. **Agency statute uses term other than “elect.” !ese agencies are: National Mediation Board (“designate”); Tennessee Valley Authority (“select”); and U.S. Election Assistance Commission (“select”). (1) Statute speci%es that the President, with advice and consent of Senate, appoints the agency head and the agency head is not an o"cial from another agency. !e Appalachian Regional Commission and Delta Regional Authority have co-chairs, one appointed by the President and con%rmed by the Senate and one elected by the state members of the board. (2) Statute speci%es that President designates the agency head but does not provide for Senate advice and consent. (3) Statute provides that the head of the agency is elected from among members or commissioners of the agency. (4) Statute speci%es that the head of the agency is an o"cial who also serves in a position in the administration that is outside of the agency. For example, the Secretary of the Treasury is the Managing Trustee of the Federal Supplementary Medication Insurance Trust Fund Board. (5) Statute speci%es a term of o"ce for the chair of the agency. (6) Statute speci%es that the chair may only be removed for ine"ciency, neglect of duty, or malfeasance in o"ce. (7) Statute speci%es that the chair serves at the pleasure of the President, may be replaced at any time by the President, or other similar language. If a commission is not listed, its statute did not include the provisions above for the selection or removal of chairs.
111

Statutes specify di#erent rules regarding the selection of 

commission chairs and whether %xed term political appointees may 

stay in their positions a&er their term has expired. In some agencies, 

the President is empowered to select the chair, either with or without 

Senate con%rmation. In other agencies, the chair is designated by 

the board itself (o&en by election) or designated by statute to be a 

speci%c government o"cial. Once a chair is selected, the rules for 

removal are the subject of some debate.280 In some cases, the statute 

provides that the chair serves for a %xed term, although only one 

agency’s statute explicitly provides for cause provisions for the chair. 

In a handful of other agencies, the statute explicitly provides that 

the chair may be removed at the President’s discretion. Table 12 lists 

the di#erent agencies whose statutes have di#erent rules for chair 

selection and removal.

In addition to specifying %xed terms, the statutes creating 

many agencies provide rules concerning what to do in the case of 

a vacancy. In some agencies, political appointees whose terms have 

expired may continue to serve until a successor has been appointed 

and quali%ed.2816 6 H(& !=*)%.!@ 87! /8*8#8! ;(:!&+3+; 87! 2(,3*.

2!,#&389 E")3+3/8&*83(+ /8*8!/] NIn any case in which a successor 

does not take o"ce at the end of a Commissioner’s term of o"ce, 

such Commissioner may continue in o"ce until the entry upon o"ce 

of such a successor.”282 Similarly, while some statutes are silent about 

who assumes responsibility in the case of a vacancy, other statutes 

stipulate how vacancies are to be %lled, either by giving discretion to 

the agency head or identifying a speci%c o"cial to %ll the position in 

280. Statutory provisions governing continuation of service generally refer only 

to c.ommissioners or members, and most say “all” commissioners or members. 

!is suggests that chairs are included in continuation provisions. !ere are two 

agencies—ACUS and FDIC—whose authorizing statutes explicitly provide for 

chairs to continue serving until a successor has been appointed. See Table 10.

281. See Table 10 for a list of boards and commissions with continuation provisions.

282. 42 U.S.C. § 902(a)(3) (2012). Some statutes put a more de%nite limit on the 

continuation of service. For example, one provision in the Federal Communications 

Commission’s underlying statute states: “Commissioners shall continue until their 

successors are appointed and have been con%rmed and taken the oath of o"ce, 

except that they shall not continue to serve beyond the expiration of the next 

session of Congress subsequent to the expiration of said %xed term of o"ce.” 47 

U.S.C. § 154(c) (2012).
112

 

the event of a vacancy.283 For example, in the Department of Labor, 

the deputy secretary is to “perform the duties of the secretary until a 

successor is appointed, and (2) in case of the absence or sickness of 

the Secretary, perform the duties of the Secretary until such absence 

or sickness shall terminate.”284 In the case where the statute is silent, 

agency vacancies are governed by general government-wide laws 

such as the Vacancies Act and, in some cases, agency succession 

rules.

d) OMB Review of Budgets, Regulations, and Communications

Another device modern presidents use to direct administrative 

agencies is centralized review of budgets, regulatory activity, and 

agency communications with Congress. Congress has delegated, 

and presidents have assumed, substantial control over the formation 

of agency budgets. !e Budget and Accounting Act of 1921 %rst 

gave the President responsibility for collecting agency estimates and 

formulating a uni%ed national budget.285 Presidents use this power 

to control agencies through budget proposals to Congress. While 

Congress is responsible for enacting appropriations, the President’s 

proposals carry weight because of presidential knowledge of agency 

programs and activities and the President’s veto power, which can be 

used as leverage in negotiating over contents of appropriations bills. 

283. Anne Joseph O’Connell, Vacant O$ces: Delays in Sta$ng Top Agency Positions, 

82 S. Cal. L. Rev. 913 (2008). !e President has the statutory authority to designate 

an o"cial to %ll vacancies in the Department of Veterans A#airs, General Services 

Administration, and Social Security Administration. !e agencies whose statutes 

provide explicit details about the o"cial that assumes responsibility in the case 

of vacancy are: Federal Reserve Board; Administrative Conference of the United 

States; Appalachian Regional Commission; Corporation for National Community 

Service; Defense Nuclear Facilities Safety Board; Department of Education; 

Department of Energy; Department of Justice; Department of Labor; Department 

of Transportation; Department of the Treasury; Environmental Protection Agency; 

Federal Communications Commission; Federal Deposit Insurance Corporation; 

Federal Election Commission; Federal Housing Finance Agency; Merit Systems 

Protection Board; National Aeronautics and Space Administration; National 

Archives and Records Administration; National Railroad Passenger Corporation 

(AMTRAK); National Science Foundation; National Transportation Safety Board; 

Nuclear Regulatory Commission; O"ce of Personnel Management; O"ce of the 

Director of National Intelligence; Postal Regulatory Commission; Small Business 

Administration; and United States International Trade Commission.

284. 29 U.S.C. § 552 (2012).

285. Pub. L. No. 67-13, 42 Stat. 20 (1921).
113

In 1981 President Reagan issued Executive Order 12,291, 

which established centralized OMB review of proposed agency 

rules.286 Agencies are required to subject proposed rules to costbene%t analysis and submit rules to OMB for review.287 While this 

executive order has been amended to limit this requirement to 

economically signi%cant regulations, all subsequent presidents have 

maintained this requirement for review.288 OMB Circular A-19 

requires agencies to submit proposed legislation and their views on 

legislation to OMB for review prior to communicating these views to 

Congress.289

Table 13 lists the agencies that are able to bypass OMB review 

of budget submissions, regulatory actions, and communications 

with Congress. Budgetary bypass comes in two forms. In one form, 

the President must submit the agency’s budget request without 

revision along with the President’s own proposals. In the other form, 

the agency submits its budget request directly to Congress without 

OMB review. An agency’s ability to bypass OMB review of budgets, 

regulations, and communications is determined partly by statute, 

286. Exec. Order No. 12,291, 28 C.F.R. § 127 (1982).

287. In 1985, President Reagan issued Executive Order 12,498, which required 

each agency to submit a regulatory plan to OMB for review each year. Exec. Order 

No. 12,498, 50 Fed. Reg. 1036 (Jan. 8, 1985).

288. Exec. Order No. 12,866, 58 Fed. Reg. 51,735 (Oct. 4, 1993). In January 2007, 

President Bush issued Executive Order 13,422, which made %ve changes to the 

regulatory review process. 72 Fed. Reg. 2763 (Jan. 23, 2007). !ese changes 

imposed several requirements on agencies (i.e., identifying a market failure or 

problem that justi%es the regulation, identifying an appointee who will serve 

as regulatory policy o"cer in the agency to control rulemaking, and providing 

estimates of the cumulative costs and bene%ts of rules they expect to promulgate 

in each calendar year), expanded OIRA review of guidance documents, and 

urged agencies to consider more formal rulemaking procedures. See Curtis

W. Copeland, Cong. Research Serv., RL33862, Changes to the OMB 

Regulatory Review Process by Executive Order 13422 (Feb. 5, 2007). 

President Obama revoked this executive order on January 30, 2009. Exec. Order 

No. 13,497, 74 Fed. Reg. 6113 (Feb. 4, 2009).

289. Office of Mgmt & Budget, Executive Office of the President, OMB 

Circular No. A-19 (1979); Memorandum from Jim Jukes, Assistant Director 

for Legislative Reference, O"ce of Management and Budget, on Agencies with 

Legislative and Budget “Bypass” Authorities (Feb. 20, 2001), available at http://

www.citizen.org/documents/OMBDocument1.pdf (accessed August 11, 2012). 

Presidents also possess signi%cant residual authority to instruct agencies to %ll in 

details omitted in statutes. !is authority has existed from the earliest congresses. 

Terry M. Moe & Scott A. Wilson, Presidents and the Politics of Structure 57 Law &

Contemp. Probs. 1 (Spring 1994).
114

Budget Rulemaking Legislation and Testimony

(1)

Statute requires that 

President submit 

agency budget 

request without 

revision along 

with President’s 

own proposals

(2)

Agency must submit 

budget directly to 

Congress without 

OMB review. OMB 

either does not get it 

or receives it at the 

same time as Congress. 

OMB may then present 

di#erent estimates 

than the agency 

(3)

Agency exempted from 

submitting proposed 

and %nal rules to OIRA

(4)

Statute exempts agency 

from submitting its 

communications to 

OMB for coordination 

& clearance prior to 

transmittal to Congress

(5)

!e agency asserts 

“informal” legislative 

bypass authority without 

any explicit statutory 

authority even though 

OMB Circular A-19 

covers the agency

SSA

USITC

USPS CSHIB

CFTC

CPSC

DNFCB

FAMC

FEC

FED

FRTIB

LSC

MSPB

NTSB

RRB

SEC

SJI

USIP

CFTC

CPSC

FCC

FDIC

FHFA

FMC

FED

FTC

MSHRC

NLRB

NRC

OSHRC

PRC

SEC

USITC

CSHIB

CFTC

CPSC

FCA

FDIC

FEC

FHFA

FED

FRTIB

MSPB

NCUA

NTSB

OSC

RRB

SEC

SBA/OA*

USITC

AMTRAK

CPB

FCC

FMC

FTC

LSC

NRC

SJI

TVA

USIP

but also importantly by informal agreement, with independent 

agencies claiming exceptions based upon the legal status of being 

independent.

Table 13. Agencies Excluded from OMB Review 

of Budgets, Rulemaking, and Legislation

Note: Table includes list of agencies whose statutes are generally recognized as excluding them from centralized budgetary, regulatory, and legislative 

review by OMB. *Exemption applies only to the O"ce of Advocacy within the Small Business Administration, rather than the entire agency.

OMB Budget Review: (1) Statutory law requires the President to submit the agency’s budget requests to Congress without revision, together with 

the President’s own budget proposals. (2) Statutory law requires the agency to submit its budget directly to Congress without OMB review. See 

generally Appendix of statutory provisions (on %le with authors and the Administrative Conference); Office of Mgmt & Budget, Executive

office of the President, OMB Circular No. A-11 (2011); Memorandum from Jim Jukes, Assistant Director for Legislative Reference, O"ce of 

Management and Budget, Agencies with Legislative and Budget “Bypass” Authorities (Feb. 20, 2001), available at: http://www.citizen.org/documents/

OMBDocument1.pdf. 

OMB Rule Review: (3) !e agency is exempted from submitting all regulatory actions to the administrator of the O"ce of Information and Regulatory 

A#airs. See Exec. Order No. 12,866, 58 Fed. Reg. 51,735 (Sept. 30, 1993); 44 U.S.C. § 3502 (2012). Some sub-agency bureaus may also bypass rule 

review, including the Federal Energy Regulatory Commission, Consumer Financial Protection Bureau, O"ce of Financial Research (DTRS), and 

O"ce of the Comptroller of the Currency (DTRS). 

OMB Legislation and Communications Review: (4) Statutory law exempts the agency from submitting its congressional communications to OMB 

for coordination and clearance prior to transmittal to Congress. !e O"ce of Advocacy within the SBA is exempted, but other parts of the agency are 

not. (5) !e agency asserts “informal” legislative bypass authority without any explicit authority, statutory or otherwise, even though OMB Circular 

A-19 does cover the agency. See generally Appendix of statutory provisions (on %le with author and the Administrative Conference); O"ce of Mgmt 

& Budget, Circular No. A-11 (2011); Memorandum from Jim Jukes, Assistant Director for Legislative Reference, O"ce of Management and Budget, 

Agencies with Legislative and Budget “Bypass” Authorities (Feb. 20, 2001), available at: http://www.citizen.org/documents/OMBDocument1.pdf. 

Note that Breger and Edles suggest that the NRC does not acknowledge legislative clearance authority by OMB. However, because the authors do not 

provide a source citation, and OMB Circular No. A-11 and the OMB memo do not suggest bypass authority, the NRC was not considered for coding 

purposes to have an exemption from OMB legislation and communications review. See Breger and Edles, supra note 9. 

Department Bureaus: Among executive departments, some bureaus or sub-department agencies may also bypass OMB budget review. !ese include, 

for column 1, the Internal Revenue Service Oversight Board (Treasury) and for column 2, the Federal Aviation Administration (Transportation) 

and Surface Transportation Board (Transportation). Others may bypass OMB review for legislative proposals, testimony, and communications 

with Congress. !ese include the Federal Aviation Administration (Transportation), Surface Transportation Board (Transportation), O"ce of the 

Comptroller of the Currency (Treasury), O"ce of !ri& Supervision (Treasury), Federal Energy Regulatory Commission (Energy), O"ce of Federal 

Housing Enterprise Oversight (Housing and Urban Development), and O"ce of the National Taxpayer Advocate (Treasury).
115

e) Control Over Agency Litigation

Another source of centralized presidential control over 

the executive establishment is the President’s control over agency 

litigation.290 Congress has vested control of federal litigation to 

the Department of Justice in order to promote coherence and 

consistency in the enforcement of federal law. !e relevant statute 

stipulates that: “Except as otherwise authorized by law, the conduct 

of litigation in which the United States, an agency, or o"cer thereof is 

a party, or is interested, and securing evidence therefore, is reserved 

to o"cers of the Department of Justice, under the direction of the 

Attorney General.”291 As the statute notes, however, some agencies 

are authorized to litigate on their own, although more are authorized 

to litigate independently in lower courts than in appeals, particularly 

before the Supreme Court.292 For example, the statutes creating 

di#erent agencies include language such as “the agency shall appoint 

such other attorneys as may be necessary to represent the agency in 

courts of law whenever appropriate”293 or “the agency is authorized 

to sue and be sued, to complain and to defend in any court of 

competent jurisdiction, to represent or contract for representation in 

290. Devins, Political Will, supra note 137; Elliott Karr, Independent Litigation 

Authority and Calls for the Views of the Solicitor General, 77 Geo. Wash. L. Rev.

1080 (2009); Neal Devins and Michael Herz, !e Uneasy Case for Department of 

Justice Control of Federal Litigation, 5 J. Const. L. 558 (2003).

291. 28 U.S.C. § 516 (2012).

292. !e law provides that: 

“(a) Except when the Attorney General in a particular case directs 

otherwise, the Attorney General and the Solicitor General shall 

conduct and argue suits and appeals in the Supreme Court and suits in 

the United States Court of Federal Claims or in the United States Court 

of Appeals for the Federal Circuit and in the Court of International 

Trade in which the United States is interested. (b) When the Attorney 

General considers it in the interests of the United States, he may 

personally conduct and argue any case in a court of the United States 

in which the United States is interested, or he may direct the Solicitor 

General or any o"cer of the Department of Justice to do so.”

28 U.S.C. § 518(a) (2012).

293. !e statute authorizing the Federal Energy Regulatory Commission states: 

“Except as provided in section 518  of title 28, relating to litigation before the 

Supreme Court, attorneys designated by the Chairman of the Commission 

may appear for, and represent the Commission in, any civil action brought in 

connection with any function carried out by the Commission pursuant to this 

chapter or as otherwise authorized by law.” 42 U.S.C. § 7171(i) (2012).
116

all legal proceedings.”294 !e Solicitor General generally conducts all 

litigation before the Supreme Court, even representing independent 

agencies. !e extent of litigating authority varies not just by level of 

court but also by issue. Some agencies have authority to litigate on 

all agency issues, and some have authority to litigate on only some 

issues. !e extent of control over speci%c issues and courts varies 

across and even within agencies. For example, some agencies control 

litigation on some issues before all courts and other issues before only 

some courts.295 Whether or not an agency has been granted litigating 

authority, and how much, is an important determinant of agency 

independence since it determines how much in$uence the White 

House has to determine agency actions, statements, and policies and 

whether these are consistent with those of the President.296

2. Insulating Agencies from Congress

Congress exerts in$uence on the bureaucracy through its 

power to create, reorganize, and eliminate programs and agencies. 

Congress determines how inferior o"cers will be appointed and the 

Senate con%rms nominees.297 Article I of the Constitution provides 

294. For example, the statute authorizing the Export-Import Bank of the United 

States empowers the Bank “to sue and to be sued, to complain and to defend 

in any court of competent jurisdiction; to represent itself or to contract for 

representation in all legal and arbitral proceedings outside the United States.” 

12 U.S.C. § 635(a)(1) (2012).

295. Devins, Political Will, supra note 137, at 277-78.

296. Agencies whose current authorizing statutes contain provisions concerning 

independent litigating authority include: Commodity Futures Trading 

Commission; Consumer Product Safety Commission; Corporation for National 

Community Service; Department of Justice; Equal Employment Opportunity 

Commission; Export-Import Bank; Farm Credit Administration; Federal 

Agricultural Mortgage Corporation; Federal Deposit Insurance Corporation; 

Federal Election Commission; Federal Energy Regulatory Commission (Energy); 

Federal Housing Finance Agency; Federal Labor Relations Authority; Federal 

Reserve Board; Federal Trade Commission; Institute of American Indian 

Arts; Inter-American Foundation; Legal Services Corporation; Merit Systems 

Protection Board; National Consumer Cooperative Bank; National Credit Union 

Administration; National Labor Relations Board; National Transportation Safety 

Board; Overseas Private Investment Corporation; Railroad Retirement Board; 

Securities and Exchange Commission; Securities Investor Protection Corporation; 

Small Business Administration; State Justice Institute; Surface Transportation 

Board (Transportation); Tennessee Valley Authority; U.S. African Development 

Foundation; U.S. Institute of Peace; U.S. International Trade Commission; and 

U.S. Postal Service.

297. Article II, sec. 2 provides that “but the Congress may by law vest the 
117

Congress the power to give and withhold appropriations to set 

national priorities and compel agency action.298 Congress has other 

means of agency in$uence as well, including hearings and oversight. 

!e fear of public exposure and the implied threat of legislative or 

budgetary change behind oversight is a powerful tool that compels 

agencies to heed congressional directions. By virtue of these formal 

powers, both branches have substantial in$uence over federal 

agencies.

a) Appropriations and Agency Self-funding

Arguably, the most important vehicle by which Congress 

controls administrative agencies is appropriations. Article I, section 

9 of the Constitution provides that: “No money shall be drawn 

from the Treasury, but in Consequence of appropriations made 

by Law...”299 As a result, no federal agency may spend revenues or 

funds except if Congress has appropriated them. When agencies 

receive fees for services, whether an application fee or a fee to enter a 

national park or an assessment on a %nancial institution, these funds 

must be returned to the Treasury. Agencies cannot spend these 

revenues unless explicitly allowed to do so by statute. Congress uses 

funding levels to set priorities and as an instrument to reward and 

punish agencies in order to induce agencies to do what Congress 

wants. Congress historically has directed agency spending through 

earmarks, which can be communicated informally, in legislative 

reports accompanying appropriations bills, or in the text of bills 

themselves. Congress also increasingly relies on limitation riders 

in appropriations bills to direct agency activity.300 !ese limitations 

take the form of “none of the funds appropriated under this act 

may be used to pay for action X,” and provide an e#ective means of 

appointment of such inferior o"cers, as they think proper, in the President alone, 

in the courts of law, or in the heads of departments.” U.S. Const., art. 2, § 2. See 

generally Kate Stith, Congress’s Power of the Purse, 97 Yale L.J. 1343 (1987).

298. U.S. Const., art. I, § 9, cl. 7.

299. Id.

300. Jason A. MacDonald, Limitation Riders and Congressional In%uence over Bur.

eaucratic Policy Decisions, 104 Am. Pol. Sci. Rev. 766 (Nov. 2010); Neal E. Devins, 

Regulation of Government Agencies !rough Limitation Riders, 36 Duke L.J. 456 

(1987).
118

limiting agency discretion.301 More generally, Congress’s statutory 

or non-statutory instructions to agencies are made credible by an 

implied threat to withhold appropriations if the agency does not 

follow congressional wishes.

At times, Congress and the President have limited their 

own in$uence over agencies by allowing agencies to collect and 

spend revenues outside the appropriations process. !is does not 

limit Congress’s ability to set spending caps and few agencies are 

entirely self-funding, but the greater the degree of self-funding, the 

more independent the agency is from Congress.302 Table 14 lists 

the agencies that have been authorized by Congress to collect and 

spend funds outside the appropriations process. !ese exceptions 

come in a variety of forms that are grouped into distinct categories. 

Many agencies have been authorized to receive gi&s and donations. 

Some have been given the ability to charge reasonable fees and use 

the revenue for speci%c purposes. A smaller set of agencies may 

become involved in real estate transactions or banking activities. 

!e second to last column includes agencies whose external funding 

represents a notable portion of their yearly outlays, and Table 15 

includes a list of completely self-funded agencies and bureaus. !is 

list is comprised mainly of %nancial regulatory agencies that receive 

fees and assessments and government corporations.303

301. For example, the FY 2006 appropriations bill for the Department of Health 

and Human Services speci%es that “none of the funds made available for injury 

prevention and control at the Centers for Disease Control and Prevention may 

be used, in whole or in part, to advocate or promote gun control.” Departments 

of Labor, Health and Human Services, and Education, and Related Agencies 

Appropriations Act, Pub. L. No. 109-149, title II, 119 Stat. 2833, 2846 (2006).

302. Note, Budgetary Autonomy and Removal Protection, supra note 133, at 1824.

303. Table 15 breaks down the listed regulatory entities by bureaus and programs. 
119

Table 14. Agency Statutes Providing Sources 

of Funding Other than Appropriations

 (1)

Gi&s and 

Donations

(2)

Reasonable 

Admin. Fees

(3)

Deal in 

Property (lease, 

purchase, 

hold, etc.)

(4)

Invest or 

Reinvest in 

Property

(5)

Authorizes 

Working 

Capital Fund

(6)

Business 

or banking 

activities 

authorized

(7)

Fees & charges 

cover substantial 

portion of 

operating expenses

(8)

Other outside 

funding authorized

ACUS

ADF

ARC

BGSEEP

CIA

CNCS

DHS

DOE

DOED

DOI

DOJ

DOL

DOT

DTRS

FHFA

FHITFB

GSA

HTSF

HUD

IAF

IAIA

IMLS

LSC

MCC

MKUSF

NARA

NASA

NCD

NCUA

NEA

NEH

NSF

NTSB

OGE

ONDCP

PCRP

RRB

SBA

SIPC

SSS

STAT

USDA

USITC

USPS

USTR

CEA

DHS

DOC

DOE

DOI

DOT

EEOC

EXIM

FCA

FTC

GSA

HUD

NARA

NCCB

NIBS

NTSB

RRB

SBA

SEC

STAT

USDA

USIP

ADF

BGSEEP

CIA

DOE

DOED

DOL

FAMC

FCA

HUD

IAF

NARA

NASA

NCCB

NCUA

NSF

OPIC

RRB

SBA

SIPC

STAT

TVA

USPS

CIA

DOT

DTRS

FDIC

FHFA

HTSF

MKUSF

NCCB

NCD

NCUA

OPIC

RRB

USIP

CFTC

CIA

DOE

DOED

DOI

DOJ

DOT

DTRS

FCA

FDIC

GSA

HUD

MKUSF

NARA

NCUA

OPIC

PCRP

SBA

SEC

STAT

USPS

ADF

EXIM

FAMC

FDIC

FED

NCCB

NCUA

SBA

AMTRAK

ARC

CFTC

FAMC

FDIC

FED

FHFA

MWAA

NCCB

NCUA

NRC

OFCANGTP

OPIC

SEC

SIPC

USPS

FERC*

NIGC*

STB*

AMTRAK

CIA

CPB

FAMC

FDIC

FHITFB

FNMA

FSMITFB

IAIA

MWAA

NCCB

OPIC

RRB

SIPC

STAT

TVA

USIP

USPS

Note: *Agency is a commission whose members serve for %xed terms inside an executive department, rather than a commission outside 

the executive departments. Federal statutes include a number of di#erent types of provisions that allow agencies freedom from the 

requirement that their funding come directly from appropriations. !is table lists the departments and agencies whose establishment 

provisions in the U.S. Code include language allowing them funding outside the appropriations process. (1) Statute authorizes the agency 

to accept, use, and dispose of gi&s, donations, or property (real, personal, or mixed) in furtherance of the agency’s purposes. (2) Statute 

authorizes the agency to charge and collect reasonable administrative fees for, among other things, products, services, and access to 

data. (3) Statute authorizes the agency to lease, purchase, acquire, own, hold, improve, or otherwise deal in property (real, personal, or 

mixed). (4) Statute authorizes the agency to invest or reinvest any property (real, personal, or mixed) or monies. (5) Statute establishes 

a working capital fund or other similar fund to be available to the agency without %scal year limitation for one or more purposes. (6) 

Statute authorizes the agency to participate in activities generally associated with the business of banking, such as the authority to receive 

deposits, to insure credit risks of loss, to borrow and lend money, to purchase, sell, and guarantee securities, or other similar functions. 

(7) Statute authorizes agency to assess and collect fees or charges for the purpose of covering a substantial portion of the cost of operating 

expenses incurred by the agency. (8) Statute authorizes agency to accept a source of funding outside of appropriated monies that is not 

in the coding scheme.
120

Table 15. Agencies and Bureaus Completely 

Exempt from Appropriations

Farm Credit Administration

Farm Credit System Insurance Corporation

Federal Deposit Insurance Corporation

Federal Home Loan Mortgage Corporation

Federal Housing Finance Agency

Federal Reserve System

Federal Prison Industries, Inc. (DOJ)

National Credit Union Administration

Public Company Accounting Oversight Board (SEC)

Comptroller of the Currency (DTRS)

Bureau of Engraving and Printing (DTRS)

Note: Identi%cation of agencies and bureaus in this table based on Note, Independence, Congressional 

Weakness, and the Importance of Appointment: !e Impact of Combining Budgetary Autonomy with 

Removal Protection, 125 Harv. L. Rev. 1822, 1824 (2012). Other bureaus not listed may have some 

other sources of funding, but still require appropriations.

b) Agency Reporting Relationships

!e relationship between Congress and federal agencies is 

in$uenced importantly by the committee and reporting relationships 

of each agency. !e number of committees and subcommittees 

actively involved in con%rming agency political appointees and 

monitoring agencies varies from one or two committees to scores 

of committees. In theory, every agency is overseen by at least four 

committees, two authorizing committees (one in the House and 

one in the Senate) and two appropriations committees. Of course, 

the extent of active oversight varies depending upon the agenda 

of the committees themselves and the politics of the day. Despite 

the prohibitions against legislative vetoes, committees and agencies 

continue to operate under agreements that require agency o"cials 

to seek approval of committees prior to taking action.304 !e amount 

of oversight also varies depending upon the character of the work 

of the agency. Some agencies implement laws in a speci%c limited 

304. For details, see Louis Fisher, Cong. Research Serv., RL33151, Committee

Controls of Agency Decisions (Nov. 16, 2005).
121

policy area, and the work of other agencies involves numerous policy 

areas. 

!e structure of congressional oversight matters for agency 

behavior. In some cases, having more committees involved in active 

oversight is helpful since committees have expertise in di#erent 

policy areas, and redundancy in oversight can ensure that agencies 

comply with congressional intent. In other cases, however, having 

too many committees hurts agency performance. In the Final Report 

of the National Commission on Terrorist Attacks Upon the United 

States, the 9/11 Commission urged: “Congress should create a single, 

principal point of oversight and review for homeland security ... 

[We] believe that Congress does have the obligation to choose one 

in the House and one in the Senate, and that this committee should 

be a permanent standing committee with a nonpartisan sta#.”305 

At the time of the report there were 108 di#erent committees and 

subcommittees responsible for overseeing the Department of 

Homeland Security.3066 607! ,(+,!&+ C387 8(( )*+9 ,())388!!/ 3/

that  agencies  are  pulled in  different  directions,  and  any  efforts to 

"3&!,8 (& &!'(&) IJ2 )#/8 A! *;&!!" #%(+ A9 /,(&!/ (' ,())388!!/5

Empirical research on the question suggests that Congress has less 

3+^#!+,! (:!& *;!+,3!/ (:!&/!!+ A9 * ;&!*8!& +#)A!& (' ,())388!!/

relative to the President.307

Congress has also written into agency statutes rules and 

requirements that help facilitate oversight. Congress frequently 

asks agencies to provide regular reports to speci%c committees 

or the chambers as a whole. Congress also empowers advisory 

commissions to work with agencies to provide advice to agencies 

305. Nat’l Comm’n on Terrorist Attacks Upon the United States, The

9-11 Commission Report 421 (2004), available at http://www.911commission.

gov/report/911Report.pdf.

306. See Who Oversees Homeland Security? Um, Who Doesn’t?, Nat’l Pub. 

Radio, July 10, 2010, available at http://www.npr.org/templates/story/story.

php?storyId=128642876 (accessed January 31, 2011).

307. Joshua D. Clinton, David E. Lewis & Jennifer L. Selin, Influencing

the Bureaucracy: The Irony of Congressional Oversight (2012) 

(working paper) (on %le with the Center for the Study of Democratic Institutions, 

Vanderbilt University), available at http://www.vanderbilt.edu/csdi/research/cls_

csdiwp_5_2012.pdf. For a list of committees responsible for con%rming nominees 

to federal agencies, see Appendix B.
122

and help Congress monitor the agency. !is can come in the form of 

speci%c mandates creating such commissions or simply authorization 

to create such commissions. For example, the statute authorizing the 

Commodity Futures Trading Commission mandates the creation of 

the Energy and Environmental Markets Advisory Committee.308 On 

the other hand, the Secretary of Energy “is authorized to establish in 

accordance with the Federal Advisory Committee Act such advisory 

committees as he may deem appropriate to assist in the performance 

of his functions.”309 As with other aspects of design, these reporting 

and commission requirements vary from agency to agency, with 

some agencies having few such requirements and others having 

many.

3. Other Key Structural Features

Of course, how responsive an agency is to presidential 

or congressional direction also depends on adherence to 

government-wide mandates and features of departments and 

agencies themselves, including history, details of their statutes, 

internal organization, personnel, and rules of operation. Congress 

has enacted a number of government-wide management and 

transparency laws to facilitate political control of federal agencies, 

to improve performance and to root out waste, fraud, and abuse 

(Table 16).310 !e Chief Financial O"cers Act of 1990 was intended 

to improve the %nancial management practices of federal entities.311 

It required the designation of a chief %nancial o"cer (CFO) with 

appropriate managerial and %nancial management background 

in all large agencies.312 !e statute speci%ed that there shall be a 

CFO appointed by the President and con%rmed by the Senate in 

larger agencies speci%ed in statute,313 although the requirement 

for CFO con%rmation has been removed by the Presidential 

Appointment E"ciency and Streamlining Act of 2011. !e statute 

308. 7 U.S.C. § 2(a)(15)(A) (2012).

309. 42 U.S.C. § 7234 (2012).

310. Brass, Gen. Mgmt. Laws, supra note 120.

311. Chief Financial O"cers Act of 1990, Pub. L. No. 101-576, 104 Stat. 2838 

(1990).

312. 31 U.S.C. § 901(a)(3) (2012).

313. Id. § 901(b)(1).
123

also mandates that a CFO be installed in other agencies not in the 

%rst list, but in these agencies CFOs are appointed by the agency 

head and are career political appointees either from the competitive 

service or the Senior Executive Service.314

!e Information Technology Management Reform Act, Pub. 

L. No. 104-106, title LI, 110 Stat. 203, 680-89 (1996) (commonly 

referred to as the Clinger-Cohen Act), mandated the designation 

of a chief information o"cer (CIO) in federal agencies. !e CIO 

would be responsible for (1) providing advice to ensure that each 

agency acquires information technology and manages information 

resources e#ectively; (2) developing, maintaining and facilitating 

an information technology architecture for each agency; and (3) 

promoting e#ective and e"cient design and operation of all major 

information resources management processes for each agency.315 

!e statute’s information technology requirements apply broadly 

to “executive agencies,” as de%ned in 41 U.S.C. § 133: any executive 

department, military department, independent establishment, or

wholly owned Government corporation.316

Finally, Congress enacted the Inspector General Act of 1978 

to help root out waste, fraud, and abuse in federal management.317 

!e act and its amendments mandated the creation of O"ces of 

Inspector General in various large agencies across the executive 

branch.318 Each Inspector General (IG) is appointed by the President 

314. Id. § 901(b)(2).

315. 40 U.S.C. § 11315 (2012).

316. !e statue expressly applies to those agencies requiring CFOs under the 

Chief Financial O"cers Act of 1990. See 40 U.S.C. § 1425 (specifying duties and 

quali%cations of CIOs by cross-reference to agencies with CFOs as mandated by 

31 U.S.C. § 901(b)). However, there are 90 other agencies that also have Chief 

Information O"cers and are part of the Small Agency CIO Council.

317. !ere are several exceptions made with respect to IG audits or investigations 

in agencies dealing with national security. In the Departments of Defense, 

Homeland Security, Justice, and Treasury, the head of the agency may prohibit 

the IG from initiating, carrying out, or completing any audit or investigation, or 

from issuing any subpoena if such prohibition is necessary to preserve national 

security. Should an agency head exercise this power, he and the IG must submit a 

statement to appropriate congressional committees. See 5 U.S.C. app. 3 §§ 8 - 8F 

(2012). Similar provisions are made for elements of the intelligence community: 

Defense Intelligence Agency, National Geospatial-Intelligence Agency, National 

Reconnaissance O"ce, and National Security Agency. See id. app. 3 § 8G(d).

318. Each IG is nominated by the President and con%rmed by the Senate. IGs 
124

and con%rmed by the Senate solely on the basis of “integrity and 

demonstrated ability in accounting, auditing, %nancial analysis, law, 

management analysis, public administration, or investigations.”319 

An IG may be removed from o"ce by the President. If the President 

removes or transfers an IG, the President must send a written 

notice to both houses of Congress not later than 30 days before 

such removal or transfer explaining the reasons. !e act adds a 

layer of accountability, as each IG must prepare semiannual reports 

summarizing the activities of his o"ce. !ese reports are sent to 

the head of the agency, which then sends the IG report, together 

with the agency head’s response, to the appropriate committees or 

subcommittees of Congress.

While the statute speci%cally creates an O"ce of Inspector 

General in each agency designated as an “establishment,” the statute 

also mandates that the Director of OMB publish in the Federal 

Register a list of federal “entities” that fall under the jurisdiction of 

the Inspector General Act.320 OMB’s “designated federal entities” 

are required to establish O"ces of Inspector General headed by an 

Inspector General appointed by the head of the agency. An agency 

that is a “federal entity” must have an audit o"ce that conducts annual 

agency audits and report the results and any other investigative 

activities to both chambers of Congress and the director of OMB. 

!e last list published in the Federal Register was in 2009.321

may be removed from o"ce by the President; however, the President must notify 

both houses of Congress not less than 30 days before any removal or transfer and 

explain the reasons for such action. 5 U.S.C. app. 3 § 3(b) (2012).

319. Id. app. 3 § 3(a).

320. Id. app. 3 §§ 2, 8G.

321. See O"ce of Management and Budget, 2008 and 2009 List of Designated 

Federal Entities and Federal Entities, 74 Fed. Reg. 3656, 3657 (Jan. 21, 2009) 

(providing updated list of designated federal entities and federal entities); see also

5 U.S.C. app. 3 § 8G(a)(2) (1978) (original statute de%ning “designated Federal 

entity” to mean 36 speci%ed agencies).
125

Relatedly, in 1976, Congress enacted the Government in 

the Sunshine Act, which requires most multi-member bodies to 

conduct their business in a manner that facilitates public scrutiny 

and involvement.322 Speci%cally, it requires that agencies provide 

advance notice of meetings and make those meetings accessible. 

Table 17 includes the list of agencies subject to the law.

322. !e Sunshine Act applies to multi-member bodies that have more than half 

of their members nominated by the President and con%rmed by the Senate. See 5 

U.S.C. § 552b(a) (2012).
126

Table 16. Government-Wide Position Mandates (CFO, CIO, IG)

Chief Financial 

O8cer

Chief Information O8cer Inspector General

!e Chief Financial 

O"cers Act of 1990 

sought to enhance the 

%nancial management 

practices of the 

federal government. 

One of the Act’s 

stated purposes 

was to designate 

a Chief Financial 

O"cer (CFO) in 

each executive 

department and major 

executive agency.

!e Clinger-Cohen 

Act, designed to reform 

information technology 

management in the federal 

government, established 

agency Chief Information 

O"cers responsible 

(40 U.S.C. § 11315).

!e Inspector General Act of 1978 established O"ces 

of Inspector General in various agencies across the 

executive branch. !ese o"ces were to provide a means 

for keeping the head of the agency and Congress fully 

informed about problems relating to the administration of 

agency programs and operations. (5 U.S.C. app. 3 § 3(a).

!e statute speci%es 

that there shall be a 

CFO appointed by 

the President and 

con%rmed by the 

Senate in the agencies 

in the %rst column (31 

U.S.C. § 901(b)(1)). !e 

statute speci%es that a 

CFO be installed in the 

agencies in the second 

column, although the 

CFOs in these agencies 

are appointed by the 

head of the agency and 

are career appointees 

either from competitive 

service or the Senior 

Executive Service (31 

U.S.C. § 901(b)(2)).

!e statute’s IT 

requirements apply broadly 

to “executive agencies” 

as de%ned in 41 U.S.C. § 

133: any exec. department, 

military department, 

independent establishment, 

or wholly owned 

Government corporation. 

At a minimum, the statute 

lists speci%c duties and 

quali%cations for those 

agencies that are also 

listed as requiring CFOs 

in the Chief Financial 

O"cers Act of 1990.a

!e agency 

is statutorily 

de%ned as an 

“establishment” 

under the 

Inspectors 

General Act and 

has an O"ce 

of Inspector 

General that 

is headed by 

an Inspector 

General who is 

appointed by the 

President by and 

with the advice 

and consent of 

the Senate.

!e agency is 

statutorily de%ned 

as a “designated 

federal entity” 

and has an O"ce 

of Inspector 

General that is 

headed by an 

Inspector General 

who is appointed 

by the head of 

the agency.

!e agency 

is de%ned by 

the O"ce of 

Management and 

Budget as a “federal 

entity” and has 

an audit o"ce 

that conducts an 

annual audit of 

agency activities 

and reports that 

audit and any 

other investigative 

activities to each 

house of Congress 

and the Director 

of OMB.

USDA

DOC

DOD

DOED

DOE

HHS

DHS

HUD

DOI

DOJ

DOL

STAT

DOT

DTRS

DVA

EPA

NASA

USAID

GSA

NSF

NRC

OPM

SBA

SSA

USDA

DOC

DOD

DOED

DOE

HHS

DHS

HUD

DOI

DOJ

DOL

STAT

DOT

DTRS

DVA

EPA

NASA

USAID

GSA

NSF

NRC

OPM

SBA

SSA

CIA

CNCS

COM

DHS

DOD

DOE

DOED

DOJ

DOL

DOT

DTRS

DVA

EPA

EXIM

FDIC

FHFA

GSA

HHS

HUD

INT

NASA

NRC

ODNI

OPM

RRB

SBA

SSA

STAT

TVA

USAID

USDA

AMTRAK

ARC

BBG

CFTC

CPSC

CPB

EAC

EEOC

FCA

FCC

FEC

FED

FLRA

FMC

FTC

LSC

NARA

NCUA

NEA

NEH

NLRB

NSF

PCRP

PRC

SEC

USITC

USPS

ACUS

ADF

CSHIB

DNFSB

DRA

FMCS

FMSHRC

FRTIB

HSTSF

IMLS

IAIA

IAF

JMMFF

MCC

MKUSF

MSPB

NCD

NMB

NTSB

OFCA

ONHIR

OGE

OPIC

OSC

OSHRC

SSS

USIP

a

!ere are 90 other agencies that also have Chief Information O"cers and are part of the Small Agency 

CIO Council. See discussion supra note 316. !ere is no statutory mandate requiring these positions 

in small agencies.
127

Table 17. Agencies Subject to the Sunshine Act

Note: !e Comptroller General ruled in 1979 that AMTRAK was subject to the Sunshine Act. See Nat’l 

Railroad Passenger Corp. - Applicability of Freedom of Information, Privacy and Sunshine Acts, 57 

Comp. Gen. 773 (1979). !ere are 90 other agencies that also have Chief Information O"cers and are 

part of the Small Agency CIO Council. See discussion supra note 316. !ere is no statutory mandate 

requiring these positions in small agencies.

a) Internal Agency Decisions and Processes

Agencies’ responsiveness can be in$uenced by the design 

of their procedures. For example, commissions can take longer to 

make determinations as a feature of their being commissions. So, 

while elected o"cials may want quick and decisive action, an agency 

may not be able to do what elected o"cials ask. One way Congress 

restricts agency freedom is to require that agencies get approval 

from outside bodies before taking authoritative action (Table 18).323 

For example, the National Endowment for the Arts may not make 

determinations on grant applications without approval from an 

external council, the National Council on the Arts.324 Similarly, 

no grants may be made from the National Institutes of Health 

without the approval of a National Advisory Council attached to 

the agency.325 !e Chief Executive O"cer of the Corporation for 

National Community Service cannot issue regulations establishing a 

selection and compensation system for the Corporation’s employees 

without %rst obtaining the approval of the Director of the O"ce of 

Personnel Management.326 Some statutes still require legislative 

323. !e list of agencies in Table 18 is based on information from their respective 

current authorizing statutes. 

324. 20 U.S.C. § 955 (2012).

325. Seidman, supra note 6, at 182-83.

326. 42 U.S.C. § 12651d(c)(7) (2012).

ADF

AMTRAK

BBG

BGSEEP

CFTC

CNCS

CPB

CPSC

CSHIB

DNFSB

EAC

EEOC

EXIM

FCA

FCC

FCSC

FDIC

FEC

FED

FERC

FHFA

FLRA

FMC

FMSHRC

FTC

HSTSF

IAIA

IAF

IRSOB

LSC

MKUSF

MRC

MSPB

NCD

NCUA

NIBS

NLRB

NMB

NRC

NSF

NTSB

OPIC

OSHRC

PCLOB

PRC

RRB

SEC

SIPC

SJI

STB

TVA

USIP

USITC

USPC

USPS
128

approval despite the Supreme Court’s invalidation of this tool in 

INS v. Chadha.

327 For example, the Commodity Futures Trading 

Commission cannot implement any plan to charge and collect fees 

until that plan is approved by the House Agriculture Committee and 

the Senate Agriculture, Nutrition, and Forestry Committee.328

327. 462 U.S. at 956-59.

328. 7 U.S.C. § 16a(a) (2012).
129

Table 18. Agencies With Authorizing Statutes 5at Require Prior 

Approval by Other Agency or Congress for Certain Actions 

Commodity Futures Trading Commission*

Corporation for National Community Service

Defense Nuclear Facilities Safety Board

Department of Education

Department of Energy*

Department of Transportation

Department of the Treasury

Export-Import Bank of the United States*

Morris K. Udall Scholarship Foundation

National Aeronautics and Space Administration*

National Archives and Records Administration

National Railroad Passenger Corporation (AMTRAK)

O"ce of the Director of National Intelligence*

O"ce of the Federal Coordinator for Alaska Natural Gas Transportation Projects

Privacy and Civil Liberties Oversight Board

Securities Investor Protection Corporation

Small Business Administration

United States International Trade Commission

United States Postal Service 

Note: !is list includes executive departments, but not the sub-department agencies. *Outside approval 

is required by Congress in the form of a legislative veto. 

!e internal process of agency decisionmaking also varies. 

In some agencies, key decisions are made primarily through the 

adjudication of cases and in others through rulemaking, and this can 

in$uence agency responsiveness. A large number of agencies set policy 

through both. Table 19 includes a list of all agencies authorized to or 

engaged in adjudication. !e %rst and second columns include lists 

of agencies whose authorizing statutes give the agency or a sub-part 

of the agency authority to conduct or hold hearings or adjudications 

and take testimony, receive evidence, employ administrative law 

judges, or perform other similar adjudicatory functions.329 !e %nal 

two columns list agencies that employ administrative law judges.

329 Agencies listed in Table 19 include those agencies whose authorizing statutes 

giv.es the agency, or a sub-part of the agency, authority to conduct hearings 

or adjudications, and otherwise provides evidence that the agency employs 

administrative law judges (ALJs).
130

Table 19. Agencies with Adjudicatory Authority

Agency

Main Authorizing 

Statute Includes 

Provisions 

Authorizing 

Adjudicationa

Main Authorizing 

Statute Includes 

Reference to 

Adjudicatory 

Portion of APA (5 

U.S.C. § 554)b

Agency Employs 

Administrative 

Law Judges 

(Association of 

Administrative 

Law Judges)c

Agency Employs 

Administrative 

Law Judges 

(Breyer)d

ARC X

CFTC X X X

CHSIB X

CPSC X X

USDA X X X X

DNFSB X

DRA X

DOC X X

DOED X X

DOE X X X X

FERC X X

HHS X X X

DHS X X X X

HUD X X X

DOI X X X

DOJ X X X X

DOL X X X

DOT X X X X

DVA X

EPA X X X

EEOC X X X

FCA X

FCC X X X X

FDIC X X

FEC X

FED X

FHFA X

FLRA X X X

FMC X X X

FMSHRC X X X X

FTC X X X

MSPB X X

NCD X

NCUA X

NLRB X X X
131

Agency

Main Authorizing 

Statute Includes 

Provisions 

Authorizing 

Adjudicationa

Main Authorizing 

Statute Includes 

Reference to 

Adjudicatory 

Portion of APA (5 

U.S.C. § 554)b

Agency Employs 

Administrative 

Law Judges 

(Association of 

Administrative 

Law Judges)c

Agency Employs 

Administrative 

Law Judges 

(Breyer)d

NSF X

NMB X

NTSB X X

NRC X X X

OMB X

OSHRC X X X X

PRC X

SEC X X X

SBA X X

SSA X X X

USEAC X

USITC X X X

USPS X X X

Note: !is table does not list speci%c bureaus, o"ces, or divisions within departments or agencies authorized to adjudicate or employing 

administrative law judges. !is information is available with statutory citation in the dataset accompanying this report. See Appendix of 

statutory provisions (on %le with authors and the Administrative Conference).

a

 Agencies included in this list have authorizing statutes that give the agency or a sub-part of the agency authority to conduct or hold 

hearings or adjudications and take testimony, receive evidence, employ administrative law judges, or perform other similar adjudicatory 

functions. Alternatively, the statute indicates that the agency employs administrative law judges. !is list relies exclusively on primary 

authorizing statutes. It should be noted that some agencies have adjudicatory authority granted outside of the primary authorizing statute. 

For example, the U.S. Patent and Trademark O"ce is located within the Department of Commerce and does adjudicate, but the PTO is 

not covered in Commerce’s statute. Some examples of statutory provisions that grant adjudicatory authority include: 

Chemical Safety and Hazard Investigation Board: !e Board, or upon the authority of the Board, any member thereof, any 

administrative law judge employed by or assigned to the Board, or any o"cer or employee duly designated by the Board 

may for the purpose of carrying out duties hold such hearings, sit and act at such times and places, administer such oaths, 

and require by subpoena or otherwise attendance and testimony of such witnesses and the production of evidence. 42 

U.S.C. § 7412(r)(6)(L)(i) (2012).

Department of Agriculture: !e Secretary shall have the power to subpoena the attendance and testimony of any witness, 

and the production of all documentary evidence relating to the enforcement of civil penalties or any matter under 

investigation in connection with o"cial inspections. !e attendance of any witness and the production of documentary 

evidence may be required from any place in the United States at any designated place of hearing. See 7 U.S.C. §§ 2279f(a)-

(b) (2012).

b !e list in this column was compiled by examining the United States Code Annotated’s cross references for the provision of the APA 

relating to adjudication (5 U.S.C. § 554). !is list includes the agencies with citations that directly reference the procedures as outlined 

in that section. Each reference was read to be certain that the provision included, rather than excluded, APA-based adjudicatory 

proceedings. 

c !e list in this column was created by referring to “Agencies Employing Administrative Law Judges” posted on the Association of 

Administrative Law Judges’ website. See http://www.aalj.org/agencies-employing-administrative-law-judges (accessed August 29, 2012).

d !e agency list in this column is based on Appendix C of the dissenting opinion of Justice Breyer in Free Enterprise Fund. 130 S. Ct. at 

3213. Justice Breyer’s dissent notes that he relied on data from the O"ce of Personnel Management to compile Appendix C. Id.

Table 19. Agencies with Adjudicatory Authority, continued
132

Table 20. Details of Federal Agencies’ Rulemaking Activities

Agency has promulgated 

an economically signi:cant 

rule in the last 15 years

Agency has promulgated a 

rule through a process that 

included a formal hearing 

in the last 15 years

Agency has not promulgated 

a rule in the last 15 years 

(EOP agencies, executive 

departments, agencies outside 

executive departments)

USDA USDA ADF

DOC DOC ARC

DOD DOE BGSEEP

DOED HHS BVA (DVA)

HHS DHS CEA

DHS DOI CPB

HUD DOJ DRA

DOI DOL EXIM

DOJ EPA FAMC

DOL NRC FHITFB

STAT PRC FSMITFB

DOT SBA IAIA

DTRS USAID IRSOB

DVA USPS MWAA

EPA MRC

EEOC NCCB

OMB NIBS

OPM NSEB

RRB OA (EOP)

SBA ONDCP (EOP)

SSA OSTP (EOP)

OFCANGTP

SIPC

SSAB

SJI

USIP

USTDA

Note: !is table does not list speci%c bureaus, o"ces, or divisions within departments or agencies. Data on economically signi%cant 

rules does not include those from independent regulatory commissions. See O"ce of Information and Regulatory A#airs, O"ce 

of Management and Budget, Historical Reports, available at http://www.reginfo.gov/public/do/eoHistoricReport (information on 

economically signi%cant rules); Federal Register, available at https://www.federalregister.gov (information on both formal and informal 

rulemaking). Among the larger departments, the speci%c bureaus promulgating rules through formal rulemaking include: Agricultural 

Marketing Service (USDA); U.S. Forest Service (USDA); National Oceanic and Atmospheric Administration (DOC); Centers for 

Medicare and Medicaid Services (HHS); Coast Guard (DHS); National Indian Gaming Commission (DOI); U.S. Fish and Wildlife 

Service (DOI); Drug Enforcement Administration (DOJ); and O"ce of Federal Contract Compliance (DOL).
133

Most agency authorizing statutes also include language 

that explicitly authorizes the agency to promulgate rules and/or 

regulations. !ose agencies that may promulgate rules, however, do 

not necessarily do so, and those that do promulgate rules sometimes 

do so only for minor administrative matters rather than to regulate 

or set general policy. Table 20 lists the agencies engaged and not 

engaged in rulemaking of di#erent forms. Speci%cally, it lists all 

agencies that have promulgated an economically signi%cant rule, or 

a rule with over $100 million in impact, in the last 15 years. It also 

includes agencies that have promulgated rules that included a formal 

hearing (i.e., hybrid or formal rulemaking).

In total, there a number of features of di#erent agencies 

that determine their responsiveness to the President, Congress, and 

di#erent groups. Some features of agency design are speci%cally 

chosen to limit political in$uence. Other features of agency design are 

chosen to enhance responsiveness. Beyond these features, however, 

are a host of agency-speci%c factors that in$uence responsiveness 

but are hard to characterize generally. Agency choices are in$uenced 

by constituency groups, professional norms, and the personality 

and choices of agency leaders and congressional overseers. When 

agencies are removed from direct political oversight, they may 

sometimes be more amenable to in$uence by their clients or pressure 

groups. !e longer the history of autonomy, the stronger the culture 

and more di"cult readjustment can be if political actors seek to 

direct agencies to do something quite di#erent from what they have 

done in the past.
134

Conclusion

!e purpose of this report has been to provide a map of the 

federal executive establishment. It has sought to describe the history 

of this establishment, to explain why the establishment is organized 

the way it is, and to describe trends that will determine what the 

federal executive establishment will look like in the future. !e 

peril of such a project is that the executive establishment constantly 

changes as new agencies are added and others are restructured or 

removed. Like the old farm described by the Brownlow Committee, 

the federal executive establishment’s organization and structure is 

evolving and changing. Indeed, the period since the publication 

of the %rst report on the federal executive establishment in 1980 

has been characterized by a number of important trends, some 

that were visible in 1980 and some that are newly emerging. !ese 

trends have important consequences for political control and agency 

performance. 

Arguably the most dramatic change in the federal executive 

establishment in the last 50 years has been the change in the federal 

personnel system. Elected o"cials, unhappy with the federal civil 

service system, have sought ways to make the executive establishment 

more responsive by increasing the number of political appointees, 

granting agencies authority to create their own personnel systems 

outside of Title 5, and by increasing reliance on contract employees 

instead of civil servants. !e increasing depth and penetration of 

political appointees has allowed presidents more control over a 

number of executive agencies, particularly those with governmentwide reach such as the O"ce of Management and Budget, O"ce 

of Personnel Management, and General Services Administration. 

!e increased penetration of political appointees allows more 

democratic accountability. Elected presidents are more easily able 

to redirect agency activities, to be responsive to the wishes of the 

public as expressed through elections. !ere is very little doubt that 

these political appointees have an in$uence on the policy outputs of 

federal agencies.
135

!e increase in political appointees has been controversial, 

however, precisely because it increases presidential power, and 

members of Congress decry presidential politicization of federal 

agencies. Presidential appointees not only change agency policies 

to be in line with presidential ideological views (e.g., increase 

or decrease environmental citations, in$uence U.S. attorney 

prosecution decisions), they also provide presidents access to 

the distributional resources of government. Political appointees 

in$uence the distribution of federal contracts and grants in 

electorally consequential ways.330 Electorally competitive states 

receive more federal grants, particularly during election years. A 

number of parties such as the National Commission on the Public 

Service have worried publicly about how the large number of political 

appointees in$uences agency performance. Existing empirical 

evidence, while limited, suggests that agencies and programs run by 

a higher percentage of political appointees perform worse than other 

agencies, either in Program Assessment Rating Tool scores or federal 

surveys of employee attitudes.331

Discussions of the federal personnel system frequently 

revolve around size and growth or decline in the number of federal 

employees. !e size of the federal workforce has $uctuated between 

2 and 3 million employees for some time. However, these numbers 

mask signi%cant changes in the federal personnel system. While 

numbers have been relatively stable in the last 40 years, an increasing 

proportion of federal employees work under appointment authorities 

other than the traditional merit system, and it is not clear whether 

the changes have improved performance. Personnel responsibilities 

have been devolved to agencies and departments, and Congress has 

given many agencies and departments greater personnel $exibility. 

Yet such changes have made the federal personnel system harder to 

monitor and control.

330. John Hudak, !e Politics of Federal Grants: Presidential In%uence over the 

Distribution of Federal Funds (Feb. 29, 2012) (unpublished Ph.D. dissertation, 

Vanderbilt University) (on %le with author).

331. Lewis, Presidential Appt., supra note 123; David E. Lewis and Nick Gallo, 

!e Consequences of Presidential Patronage for Agency Performance, 22 J. Pub. Admin. Res. & Theory 219 (2012).
136

!e stability in numbers of federal employees masks an 

expansion in the number of contract employees. !e increased use of 

contract employees has been a common way of buying government 

capacity. If current estimates are correct, the growth in contract 

employees has been nothing short of astounding. !e reliance on 

contract employees provides managers $exibility, the hope of lower 

costs, and the ability to buy capacity easily. However, the reliance 

on contract employees in$uences the public sector labor market and 

the willingness of civil servants to invest in agency-speci%c expertise. 

Federal employees are less likely to make careers in government 

service, o&en leaving government service for private contracting 

%rms. !e proliferation of federal contractors also raises issues of 

monitoring and control. Accurate counts of contract employees do 

not exist, and the Government Accountability O"ce has repeatedly 

identi%ed federal contract management as a problem area for federal 

management.

!e federal personnel system is in a state of profound 

transition. Beyond the expansions of agency-speci%c personnel 

systems and contract employment, the system is confronted with a 

number of serious problems, including an outdated pay system, a 

cumbersome hiring process, and a coming retirement wave.332 Budget 

cutting proposals targeted at federal employees re$ect dissatisfaction 

with the federal personnel system. Di"culties with the traditional 

merit system have led to a series of ad hoc workarounds. Growing 

evidence from the experience of federal and state agencies may soon 

be enough to provide the foundation for a fundamental reevaluation 

of the entirety of the federal personnel system. 

A second trend that characterizes the period since 1980 is 

the increasing use of agency designs that insulate agencies from 

political control, either directly through devices like %xed terms or 

indirectly by creating agencies as private non-governmental entities. 

!e federal executive establishment is increasingly characterized by 

agencies with features that create administrative autonomy, in some 

332. Paul A. Volcker et al., The Changing Nature of Government Service: 

A Woodrow Wilson School Task Force Final Report (2009), available at

http://wws.princeton.edu/gstf/Volcker-Report.pdf.
137

cases even calling into question whether these instrumentalities 

are even agencies at all. !ese new and innovative designs hold 

out the promise of e#ectiveness and e"ciency. !e ability of new 

federal entities to avoid government-wide managerial mandates and 

rules creates managerial $exibility that can be employed to better 

accomplish government objectives. 

With greater $exibility and autonomy, however, necessarily 

comes a lack of political accountability. !ere are cases where elected 

o"cials see the wisdom in limiting their own in$uence over agency 

activities. !ese choices, however, come at a cost when autonomous 

government actors make poor decisions or become embroiled in 

scandal. !e proliferation of exceptions has signi%cant consequences 

for centralized management of key policy areas by Congress and the 

President, including trade, foreign aid, lending, housing, banking, 

and transportation. Federal agencies designed to be insulated 

from political control endure longer than other agencies, and the 

accumulation of these organizations makes centralized coordination 

of these policy areas more di"cult. !ere have also been visible 

scandals in hierarchically organized agencies such as the Federal 

Emergency Management Administration, Minerals Management 

Service, and the General Services Administration, so the conclusion 

is not that one structure guarantees excellent performance. Rather, 

it is impossible to have autonomy and control at the same time, and 

the increasing fragmentation of the federal executive establishment 

makes holistic planning di"cult. !e lack of one uni%ed source 

to describe the executive establishment and the di#erences among 

existing lists is evidence in itself of the di"culty in control and 

oversight. !e purpose of this work is, in large measure, to provide 

the background necessary for the oversight process to be improved 

and reformed.
A - 

Appendix A-1: List of Agencies – By Agency Name

Administrative Conference of the U.S. ACUS

Appalachian Regional Commission ARC

B. Goldwater Scholarship & Excellence in Educ. Pr. BGSEEP

Broadcasting Board of Governors BBG

Central Intelligence Agency CIA

Chemical Safety & Hazard Investigation Board CSHIB

Commodity Futures Trading Commission CFTC

Consumer Product Safety Commission CPSC

Corporation for National Community Service CNCS

Corporation for Public Broadcasting CPB

Council of Economic Advisers CEA

Council on Environmental Quality CEQ

Defense Nuclear Facilities Safety Board DNFSB

Delta Regional Authority DRA

Department of Agriculture USDA

Department of Commerce DOC

Department of Defense DOD

Department of Education DOED

Department of Energy DOE

Department of Health & Human Services HHS

Department of Homeland Security DHS

Department of Housing & Urban Development HUD

Department of Justice DOJ

Department of Labor DOL

Department of State STAT

Department of the Interior DOI

Department of Transportation DOT

Department of the Treasury DTRS

Department of Veterans A#airs DVA

Environmental Protection Agency EPA

Equal Employment Opportunity Commission EEOC

Export-Import Bank of the U.S. EXIM

Farm Credit Administration FCA

1
A - 

Federal Agricultural Mortgage Corporation FAMC

Federal Communications Commission FCC

Federal Deposit Insurance Corporation FDIC

Federal Election Commission FEC

Federal Hospital Insurance Trust Fund Board FHITFB

Federal Housing Finance Agency FHFA

Federal Labor Relations Authority FLRA

Federal Maritime Commission FMC

Federal Mediation & Conciliation Service FMCS

Federal Mine Safety & Health Review Commission FMSHRC

Federal National Mortgage Association FNMA

Federal Reserve Board FED

Federal Retirement !ri& Investment Board FRTIB

Federal Supp. Medication Insurance Trust Fund Bd FSMITFB

Federal Trade Commission FTC

General Services Administration GSA

Harry S Truman Scholarship Foundation HSTSF

Institute for Museum & Library Services IMLS

Institute of American Indian Arts IAIA

Inter-American Foundation IAF

James Madison Memorial Fellowship Foundation JMMFF

Legal Services Corporation LSC

Merit Systems Protection Board MSPB

Metropolitan Washington Airport Authority MWAA

Millennium Challenge Corporation MCC

Mississippi River Commission MRC

Morris K. Udall Scholarship Foundation MKUSF

National Aeronautics & Space Administration NASA

National Archives & Records Administration NARA

National Consumer Cooperative Bank NCCB

National Council on Disability NCD

National Credit Union Administration NCUA

National Endowment for the Arts NEA

2

Appendix A-1: List of Agencies – By

Agency Name, Continued
A - 

National Endowment for the Humanities NEH

National Institute of Building Sciences NIBS

National Labor Relations Board NLRB

National Mediation Board NMB

National Railroad Passenger Corp AMTRAK

National Science Foundation NSF

National Security Education Board NSEB

National Transportation Safety Board NTSB

Nuclear Regulatory Commission NRC

Occupational Safety & Health Review Commission OSHRC

O"ce of Administration EOP

O"ce of the Director of National Intelligence ODNI

O"ce of the Federal Coordinator for Alaska 

 Natural Gas Transportation Projects

OFCANGTP

O"ce of Government Ethics OGE

O"ce of Management & Budget OMB

O"ce of National Drug Control Policy ONDCP

O"ce of Navajo & Hopi Indian Relocation ONHIR

O"ce of Personnel Management OPM

O"ce of Science & Technology Policy OSTP

O"ce of Special Counsel OSC

O"ce of the U.S. Trade Representative USTR

Overseas Private Investment Corporation OPIC

Peace Corps PCRP

Postal Regulatory Commission PRC

Privacy & Civil Liberties Oversight Board PCLOB

Railroad Retirement Board RRB

Securities & Exchange Commission SEC

Securities Investor Protection Corporation SIPC

Selective Service System SSS

Small Business Administration SBA

Social Security Administration SSA

Social Security Advisory Board SSAB

3

Appendix A-1: List of Agencies – By

Agency Name, Continued
A - 

State Justice Institute SJI

Tennessee Valley Authority TVA

U.S. African Development Foundation ADF

U.S. Agency for International Development USAID

U.S. Election Assistance Commission EAC

U.S. Institute of Peace USIP

U.S. International Trade Commission USITC

U.S. Postal Service USPS

U.S. Trade & Development Agency USTDA

White House O"ce WHO

Sub-Department Bureaus:

Board of Veterans Appeals (DVA) BVA

Federal Energy Regulatory Commission (DOE) FERC

Foreign Claims Settlement Comm of the U.S. (DOJ) FCSC

Internal Revenue Service Oversight Board (DTRS) IRSOB

National Indian Gaming Commission (DOI) NIGC

Surface Transportation Board (DOT) STB

U.S. Parole Commission (DOJ) USPC

4

Appendix A-1: List of Agencies – By

Agency Name, Continued
A - 

Appendix A-2: List of Agencies – By Abbreviation

ACUS Administrative Conference of the U.S.

ADF U.S. African Development Foundation

AMTRAK National Railroad Passenger Corporation

ARC Appalachian Regional Commission

BBG Broadcasting Board of Governors

BGSEEP B. Goldwater Scholarship & Excellence in Educ. Pr.

BVA Board of Veterans Appeals (DVA)

CEA Council of Economic Advisers

CEQ Council on Environmental Quality

CFTC Commodity Futures Trading Commission

CIA Central Intelligence Agency

CNCS Corporation for National Community Service

CPB Corporation for Public Broadcasting

CPSC Consumer Product Safety Commission

CSHIB Chemical Safety & Hazard Investigation Board

DHS Department of Homeland Security

DNFSB Defense Nuclear Facilities Safety Board

DOC Department of Commerce

DOD Department of Defense

DOE Department of Energy

DOED Department of Education

DOI Department of the Interior

DOJ Department of Justice

DOL Department of Labor

DOT Department of Transportation

DRA Delta Regional Authority

DTRS Department of the Treasury

DVA Department of Veterans A#airs

EAC U.S. Election Assistance Commission

EEOC Equal Employment Opportunity Commission

EOP O"ce of Administration

EPA Environmental Protection Agency

EXIM Export-Import Bank of the U.S.

5
A - 

FAMC Federal Agricultural Mortgage Corporation

FCA Farm Credit Administration

FCC Federal Communications Commission

FCSC Foreign Claims Settlement Comm of the U.S. (DOJ)

FDIC Federal Deposit Insurance Corporation

FEC Federal Election Commission

FED Federal Reserve Board

FERC Federal Energy Regulatory Commission (DOE)

FHFA Federal Housing Finance Agency

FHITFB Federal Hospital Insurance Trust Fund Board

FLRA Federal Labor Relations Authority

FMC Federal Maritime Commission

FMCS Federal Mediation & Conciliation Service

FMSHRC Federal Mine Safety & Health Review Commission

FNMA Federal National Mortgage Association

FRTIB Federal Retirement !ri& Investment Board

FSMITFB Federal Supp. Medication Insurance Trust Fund Bd

FTC Federal Trade Commission

GSA General Services Administration

HHS Department of Health & Human Services

HSTSF Harry S Truman Scholarship Foundation

HUD Department of Housing & Urban Development

IAF Inter-American Foundation

IAIA Institute of American Indian Arts

IMLS Institute for Museum & Library Services

IRSOB Internal Revenue Service Oversight Board (DTRS)

JMMFF James Madison Memorial Fellowship Foundation

LSC Legal Services Corporation

MCC Millennium Challenge Corporation

MKUSF Morris K. Udall Scholarship Foundation

MRC Mississippi River Commission

MSPB Merit Systems Protection Board

MWAA Metropolitan Washington Airport Authority

6

Appendix A-2: List of Agencies – By

Abbreviation, Continued
A - 

NARA National Archives & Records Administration

NASA National Aeronautics & Space Administration

NCCB National Consumer Cooperative Bank

NCD National Council on Disability

NCUA National Credit Union Administration

NEA National Endowment for the Arts

NEH National Endowment for the Humanities

NIBS National Institute of Building Sciences

NIGC National Indian Gaming Commission (DOI)

NLRB National Labor Relations Board

NMB National Mediation Board

NRC Nuclear Regulatory Commission

NSEB National Security Education Board

NSF National Science Foundation

NTSB National Transportation Safety Board

ODNI O"ce of the Director of National Intelligence

OFCANGTP O"ce of the Federal Coordinator for Alaska Natural 

 Gas Transportation Projects

OGE O"ce of Government Ethics

OMB O"ce of Management & Budget

ONDCP O"ce of National Drug Control Policy

ONHIR O"ce of Navajo & Hopi Indian Relocation

OPIC Overseas Private Investment Corporation

OPM O"ce of Personnel Management

OSC O"ce of Special Counsel

OSHRC Occupational Safety & Health Review Commission

OSTP O"ce of Science & Technology Policy

PCLOB Privacy & Civil Liberties Oversight Board

PCRP Peace Corps

PRC Postal Regulatory Commission

RRB Railroad Retirement Board

SBA Small Business Administration

SEC Securities & Exchange Commission

7

Appendix A-2: List of Agencies – By

Abbreviation, Continued
A - 

SIPC Securities Investor Protection Corporation

SJI State Justice Institute

SSA Social Security Administration

SSAB Social Security Advisory Board

SSS Selective Service System

STAT Department of State

STB Surface Transportation Board (DOT)

TVA Tennessee Valley Authority

USAID U.S. Agency for International Development

USDA Department of Agriculture

USIP U.S. Institute of Peace

USITC U.S. International Trade Commission

USPC U.S. Parole Commission (DOJ)

USPS U.S. Postal Service

USTDA U.S. Trade & Development Agency

USTR O"ce of the U.S. Trade Representative

WHO White House O"ce

8

Appendix A-2: List of Agencies – By

Abbreviation, Continued
A - 

Appendix B. Senate Committees

Confirming Agency Nominees

Agency Number of 

Committees

Committees

ACUS 1 Judiciary

ADF 1 Foreign Relations

AMTRAK 1 Commerce, Science, & Transportation

ARC 1 Environment & Public Works

BGSEEP 1 Health, Education, Labor, & Pensions

BBG 1 Foreign Relations

CIA 1 Intelligence

CSHIB 1 Environment & Public Works

CFTC 1 Agriculture, Nutrition, & Forestry

CPSC 1 Commerce, Science, & Transportation

CNCS 2 Health, Education, Labor, & Pensions; 

Homeland Security & Governmental A#airs

CPB 1 Commerce, Science, & Transportation

DNFSB 1 Armed Services

DRA 1 Environment & Public Works

USDA 2 Agriculture, Nutrition, & Forestry; 

Homeland Security & Governmental A#airs

DOC 6 Banking, Housing, & Urban 

A#airs; Commerce, Science, & 

Transportation; Environ & Public 

Works; Finance; Homeland Security 

& Governmental A#airs; Judiciary

DOD 3 Armed Services; Environment & Public 

Works; Homeland Security & Govt. A#airs 

DOED 2 Health, Education, Labor, & Pensions; 

Homeland Security & Govt. A#airs

DOE 3 Armed Services; Energy & 

Natural Resources; Homeland 

Security & Govt. A#airs 

HHS 4 Finance; Health, Education, Labor, 

& Pensions; Homeland Security & 

Govt. A#airs; Indian A#airs 

9
A - 

DHS 4 Commerce, Science, & Transport; 

Finance; Homeland Security & 

Govt. A#airs; Judiciary

HUD 2 Banking, Housing, & Urban A#airs; 

Homeland Security & Govt. A#airs

DOJ 3 Judiciary; Homeland Security & 

Governmental A#airs; Intelligence 

DOL 3 Health, Education, Labor, & Pensions; 

Homeland Security & Governmental 

A#airs; Veterans A#airs 

STAT 3 Foreign Relations; Homeland Security 

& Governmental A#airs; Intelligence 

DOI 4 Energy & Natural Resources; Environment 

& Public Works; Homeland Security & 

Governmental A#airs; Indian A#airs

DOT 4 Banking, Housing, Urban A#airs; 

Commerce, Science, & Transportation; 

Environment & Public Works; 

Homeland Security & Govt. A#airs

DTRS 4 Banking, Housing, & Urban A#airs; 

Finance; Homeland Security & 

Governmental A#airs; Intelligence 

DVA 2 Veterans A#airs; Homeland 

Security & Govt. A#airs

EAC 1 Rules & Administration

EPA 2 Environment & Public Works; 

Homeland Security & Govt. A#airs

EEOC 1 Health, Education, Labor, & Pensions

EXIM 2 Banking, Housing, & Urban A#airs; 

Homeland Security & Govt. A#airs

FCA 1 Agriculture, Nutrition, & Forestry

FAMC 1 Agriculture, Nutrition, & Forestry

FCC 1 Commerce, Science, & Transportation

FDIC 2 Banking, Housing, & Urban A#airs; 

Homeland Security & Govt. A#airs

FEC 1 Rules & Administration

10

Appendix B. Senate Committees Confirming

Agency Nominees, Continued
A - 

FHITFB 1 Finance

FHFA 1 Banking, Housing, & Urban A#airs

FLRA 1 Homeland Security & Governmental A#airs

FMC 1 Commerce, Science, & Transportation

FMCS 1 Health, Education, Labor, & Pensions

FMSHRC 1 Health, Education, Labor, & Pensions

FED 1 Banking, Housing, & Urban A#airs

FRTIB 1 Homeland Security & Governmental A#airs

FSMITFB 1 Finance

FTC 1 Commerce, Science, & Transportation

GSA 1 Homeland Security & Governmental A#airs

HSTSF 1 Health, Education, Labor, & Pensions

IMLS 1 Health, Education, Labor, & Pensions

IAIA 1 Indian A#airs

IAF 1 Foreign Relations

JMMFF 1 Health, Education, Labor, & Pensions

LSC 1 Health, Education, Labor, & Pensions

MSPB 1 Homeland Security & Governmental A#airs

MWAA 1 Commerce, Science, & Transportation

MCC 1 Foreign Relations

MRC 1 Environment & Public Works

MKUSF 1 Environment & Public Works

NASA 2 Commerce, Science, & Transportation; 

Homeland Security & Govt. A#airs

NARA 1 Homeland Security & Governmental A#airs

NCCB 1 Banking, Housing, & Urban A#airs

NCD 1 Health, Education, Labor, & Pensions

NCUA 1 Banking, Housing, & Urban A#airs

NEA 1 Health, Education, Labor, & Pensions

NEH 1 Health, Education, Labor, & Pensions

NIBS 1 Banking, Housing, & Urban A#airs

NLRB 1 Health, Education, Labor, & Pensions

NMB 1 Health, Education, Labor, & Pensions

NSF 1 Health, Education, Labor, & Pensions

11

Appendix B. Senate Committees Confirming

Agency Nominees, Continued
A - 

NSEB 1 Armed Services

NTSB 1 Commerce, Science, & Transportation

NRC 2 Environment & Public Works; 

Homeland Security & Govt. A#airs

OSHRC 1 Health, Education, Labor, & Pensions

OGE 1 Homeland Security & Governmental A#airs

ONHIR 1 Indian A#airs

OPM 1 Homeland Security & Governmental A#airs

OSC 1 Homeland Security & Governmental A#airs

ODNI 1 Intelligence

OFCANGTP 1 Energy & Natural Resources

OPIC 1 Foreign Relations

PCRP 1 Foreign Relations

PRC 1 Homeland Security & Governmental A#airs

PCLOB 1 Judiciary

RRB 2 Health, Education, Labor, & Pensions; 

Homeland Security & Govt. A#airs

SEC 1 Banking, Housing, & Urban A#airs

SIPC 1 Banking, Housing, & Urban A#airs

SSS 1 Armed Services

SBA 2 Small Business & Entrepreneurship; 

Homeland Security & Govt. A#airs

SSA 2 Finance; Homeland Security & Govt. A#airs

SSAB 1 Finance

SJI 1 Judiciary

TVA 2 Environment & Public Works; 

Homeland Security & Govt. A#airs

USAID 2 Foreign Relations; Homeland 

Security & Governmental A#airs

USIP 1 Health, Education, Labor, & Pensions

USITC 1 Finance

USPS 1 Homeland Security & Governmental A#airs

USTDA 1 Foreign Relations

Note: Many agencies that have Homeland Security & Govt. A#airs in addition to other committees have this committee listed because of 

its role in con%rming inspectors general.

12

Appendix B. Senate Committees Confirming

Agency Nominees, Continued
A - 

Appendix C. Agency Structure Codebook

!is codebook describes the data collected for !e Federal 

Executive Establishment, a report prepared for the Administrative 

Conference of the United States. !e dataset described in this 

codebook has three components: (1) the codebook describing the 

variables and their coding, (2) the statutory provisions justifying the 

coding, and (3) a Microso& Excel spreadsheet containing the data. 

!is document comprises the %rst component of the dataset. 

Data Collection

A team of researchers under the direction of a team lead 

collected data on all federal agencies in the summer of 2012. For 

the purposes of this report, researchers followed the Administrative 

Procedure Act (APA) and de%ned all federal entities outside the 

legislative and judicial branches as federal agencies for the purposes 

of data collection. Among the set of federal entities, researchers 

examined only those that included Senate-con%rmed political 

appointees. 07! "*8* ,(..!,83(+ '(,#/!/ (+ 87! 8(% .!*"!&/73% *+"

*,83:383!/ (' *;!+,3!/ 3+ 87! <=!,#83:! >'-,! (' 87! ?&!/3"!+8@ 87!

executive departments, and independent agencies, rather than their 

component  bureaus,  divisions,  and  committees.   Agency  statutes 

are the primary source of data for each agency.  !e choice to rely 

on statutory law was made for the sake of consistent coding across 

all agencies and to capture the agreed-upon structural deal made 

between Congress and the President.   For a few variables, notably 

those relating to OMB review of budgets, legislative proposals, 

testimony, and regulations, researchers referenced OMB publications 

to U.S. Code agencies. Researchers also relied on outside information 

in coding for adjudicatory authority and congressional committee 

con%rmation and oversight information.

Method

Data collection proceeded in three phases. In the %rst phase, 

each researcher on the team researched approximately 15 agencies. 

Each researcher found the original public law that established the 

agency and that law’s corresponding updated section in the U.S. Code. 

13
A - 

Unless otherwise speci%ed, all information referring to “statute” in 

the codebook comes from this updated section of the U.S. Code.333 

Next, each researcher read that section of the Code and extracted 

information about the agency’s structure. Researchers noted 

statutory features of each agency along with a statutory reference 

for each feature. A total of 55 statutory characteristics of agencies 

were tracked for the 9 components of the Executive O"ce of the 

President (EOP), the 15 executive departments, and 81 independent 

agencies.334 Researchers noted the location of each agency (e.g., EOP, 

executive departments, independent agency, etc.), features of agency 

governance (e.g., commission, %xed terms, number of political 

appointees), agency powers (e.g., power to raise funds, independent 

litigating authority), and aspects of agency political oversight (e.g., 

OMB and congressional reporting requirements, congressional 

committee jurisdiction). 

In the second phase of the research, the researchers’ work 

was double checked against the work of the team lead. Once each 

researcher completed coding each agency’s statute, he or she sent 

it to the team lead. !e team lead also coded the statutes for each 

of the agencies. A&er the team lead received the completed coding 

from the team, she compared the two coded versions of the data for 

each agency and resolved any discrepancies in the coding. She then 

placed the %nal data in the Master Agency Structure Spreadsheet.

In the %nal phase, coding of the data was validated using 

a variety of di#erent sources, depending upon the type of agency

333. All statutory provisions cited in this Codebook are current as of July 1, 2012. 

334. What constitutes a federal agency is a matter of some dispute since such 

designation opens up an organization to laws such as the Freedom of Information 

Act (5 U.S.C. § 552) and the Government in the Sunshine Act (5 U.S.C. § 552b). 

By focusing only on entities with Senate-con%rmed appointees, there are hundreds 

of federal advisory commissions, ceremonial bodies with heads appointed by 

Congress and other actors, and multi-lateral organizations where the entity is 

jointly run between the United States and another nation. Kosar, Quasi Gov’t, supra note 39. 

14
A - 

and characteristic.335 Where discrepancies emerged,336 statutes 

were reread and a judgment was made about what source was 

correct. Any discrepancies between the team’s coding and existing 

research are noted in footnotes in the portion of the dataset listing 

the statutory provisions justifying the coding for each agency.

Variables and Coding

Basic Agency Characteristics

Agency Name: Name of Agency

Date of 

Creation: Date the establishing statute for the agency became 

 law. In most cases the date of creation is clear. In 

 some cases, however, there is some uncertainty. For 

 example, the Department of Labor was created as an 

 independent agency in 1888, became part of the 

 Department of Labor and Commerce in 1903, and 

 was named an executive department in 1913. 

 Where there was uncertainty, the researchers relied 

 on agency self-interpretation. Source: Agency statute 

 

335. Sources include: Marshall J. Breger and Gary J. Edles, Established by Practice: 

!e !eory and Operation of Independent Federal Agencies, 52 Admin. L. Rev. 1111 

(2000); Datla and Revesz, Deconstructing Independent Agencies, supra note 9; Free 

Enterprise Fund, 130 S. Ct. 3138 (Breyer, J., dissenting).

336. If discrepancies exist, they are o&en the result of the team using the provisions 

of the statutory law described above to code the structural features of the agency. 

By relying on the portions of the U.S. Code related to agency structure, it is possible 

that other statutory provisions outside of the establishing statute impose additional 

requirements on the agency or specify additional structural features of the agency. 

In addition, not all structural features are detailed in statute. Many are determined 

by agency action. Agencies promulgate regulations to implement law and clarify 

areas where statutory law is unclear. For example, many commission statutes are 

silent on the question of what constitutes a quorum in an agency, yet such rules 

are necessary for the functioning of the agency. Agencies subsequently clarify this 

uncertainty in regulation or bylaws. Finally, in some cases, administrative common 

law gives agencies features that di#er from what is in statute. For example, the 

statute authorizing the Securities and Exchange Commission does not include “for 

cause” protection for the removal of commissioners. Nonetheless, federal courts 

recognize the existence of “for cause” protection for SEC Commissioners despite 

absence of explicit reference to such protection in the underlying statute. See, e.g., 

Blinder, 855 F.2d 677.

15
A - 

 and agency-issued statements about agency history 

 (usually from the agency’s website).

Statute: Sections of the U.S. Code that establish the agency.

Sub-agency 

Bureaus: !e number of distinct bureaus or o"ces within the 

 agency mentioned in the statute. Given the 

 irregularity of the use of terms (agency, administration, 

 bureau, division, and o"ce), no distinction is made 

 in counting between whether something is called an 

 “agency,” “administration,” “bureau,” “o"ce,” or 

 “division.” Source: Agency statute.

Employees: !e number of employees in the agency as of 

 September 2011.337 Source: O"ce of Personnel 

 Management, Central Personnel Data File, (September 

 2011), http://www.fedscope.opm.gov/employment.

 asp. In cases where OPM does not collect employment 

 data, researchers relied on other sources, such as 

 Congressional Research Service reports, 

 communications with agency o"cials, and secondary 

 sources for estimates of agency employment.

Features Insulating from the President

Commission: (1) !e agency is governed by a multi-member board 

 or commission whose members are protected from 

 removal except for neglect of duty or malfeasance in 

 o"ce; (0) !e agency is not governed by a multi-

 member board or commission whose members are 

 protected from removal except for neglect of duty or 

 malfeasance in o"ce. Some agencies do not have 

 statutory for cause protections but are considered to 

 have implied for cause protections because the 

337. For agencies not listed in OMP’s FedScope, the research team contacted each 

agency to obtain the number of federal employees working in that agency in 2011. 

!ese agencies are noted in the earlier discussion of the FedScope database. See 

supra note 27. If the agency directed a researcher to an outside source, that source 

is also identi%ed in note 27.

16
A - 

 agencies are “quasi-judicial and quasi-

 legislative.”338 !ese agencies are coded as a 

 (1). Researchers considered multi-member 

 boards or commissions as “quasi-judicial and 

 quasi-legislative” if they participated in both 

 rulemaking and adjudication. Source: Agency 

 statute.

Commissioners/

Board Members: If the agency is a commission or has a board 

 of directors, the number of voting members 

 on the commission or board of directors. (.) 

 denotes an agency is not a commission or 

 does not have a board. Source: Agency statute.

Quorum Rules: (1) Statute speci%es the number of 

 commissioners or board members that 

 constitute a quorum; (0) Statute does not 

 specify the number of commissioners or 

 board members that constitute a quorum; (.) 

 Quorum rules not applicable because not a 

 commission or board. Source: Agency statute.

Quorum Number: If Quorum Rules is coded (1), the number 

 of members or commissioners the statute 

 speci%es to constitute a quorum. Source: 

 Agency statute.

Political appointees:

PAS: Number of positions in agency subject to presidential 

 appointment with Senate con%rmation. Source: Staff

 of S. Comm. on Homeland Sec. & Gov’t Affairs, 

 110th Cong., Policy and Supporting Positions

 (Comm. Print 2008), available at http://www.gpo.

 gov/fdsys/pkg/GPO-PLUMBOOK-2008/pdf/GPO338. See Blinder, 855 F.2d 677; Fed. Election Comm’n v. Nat’l Ri$e Aass’n Political 

Victory Fund, 6 F.3d 821 (D.C. Cir. 1993).

17
A - 

 PLUMBOOK-2008.pdf [hereina&er 2008 Plum Book]. 

NA: Number of Senior Executive Service general positions 

 in agency %lled by non-career appointment. Source: 

 2008 Plum Book.

SchC: Number of positions in agency %lled by Schedule C 

 Excepted Appointment. Source: 2008 Plum Book.

PA: Number of positions in agency subject to presidential 

 appointment without Senate con%rmation that are 

 not non-career SES positions or Schedule C positions. 

 Source: 2008 Plum Book.

XS: Number of policy and supporting positions in the 

 agency subject to statutory excepted appointment 

 that are not PAS, NA, SC, or PA positions. Source: 

 2008 Plum Book.

Agencyspeci%c 

Personnel 

System: For the purposes of the chapters of Title 5 relating 

 to pay and allowances, certain agencies’ employees 

 are excluded from the de%nition of “employee”339 and 

 other agencies’ statutes permit employment 

 systems particular to that agency. Examples of 

 statutory language indicating separate employment 

 systems include “members, o"cers, and employees 

 of the agency are not federal employees for any 

 purpose”340 or “rates of basic pay for all employees 

 may be set and adjusted by the agency without 

 regard to civil service provisions.”341 Other statutes 

 allow for some agency employees to fall outside of 

 civil service provisions but place limitations on 

339. 5 U.S.C. § 5102 (2012).

340. 40 U.S.C. § 14301(b)(3) (2012) (Appalachian Regional Commission).

341. 7 U.S.C. § 2(a)(7)(B) (2012) (Commodity Futures Trading Commission).

18
A - 

 the number. Examples of this sort of language 

 include the agency “may appoint not more than 425 

 of the scienti%c, engineering, and administrative 

 personnel of the Administration without regard to 

 civil service laws.”342 Agency-speci%c personnel 

 system is coded (3) if 5 U.S.C. § 5012 excepts agency 

 employees from the de%nition of “employee”; (2) if 

 the agency’s statute permits the agency to use 

 employment systems particular to that agency; (1) if 

 the agency statute allows a limited number of 

 employees to fall outside of civil service provisions; 

 (0) if the statute does not speci%cally allow for any 

 agency employees to fall outside of civil service 

 provisions. Source: 5 U.S.C. § 5012 (2012); Agency 

 statute.

Limitation on 

Appointments:

Citizen of U.S.:(1) Statute mandates that board members or 

commissioners or the agency head must be citizens of 

the United States; (0) Statute does not mandate that 

members/commissioners/agency head be citizens of 

the United States. S ource: Agency statute.

Civilian: (1) Statute mandates that board members or 

commissioners or the agency head must be civilians; 

(0) Statute does not mandate that members/

commissioners/agency head be civilians. Source: 

Agency statute.

Geographic: (1) Statute places a geographic limitation on the 

nomination/selection of board members or 

commissioners or the agency head; (0) Statute does 

not place a geographic limitation on members/

commissioners/agency head. A statute that advises 

342. 51 U.S.C. § 20113(b)(1) (2012) (National Aeronautics and Space 

Administration).

19
A - 

the President to consider geography “to the maximum 

extent possible,” “as nearly as practicable,” or similar 

language is coded as a (1). Source: Agency statute.

Demographic: (1) Statute places a demographic limitation on the 

nomination/selection of board members or 

commissioners or the agency head; (0) Statute does 

not place a demographic limitation on members/

commissioners/agency head. A statute that advises 

the President to appoint members so that the Board 

shall be diverse according to race, ethnicity, age, 

gender, or other characteristics “to the maximum 

extent possible,” “as nearly as practicable,” or similar 

language is coded as a (1). Source: Agency statute.

Expertise: (1) Statute places an expertise or experience limitation 

on the nomination/selection of members or 

commissioners or the agency head; (0) Statute does 

not place an expertise or experience limitation on 

members/commissioners/agency head. Source: 

Agency statute.

Con$ict of 

Interest: (1) Statute places a con$ict of interest limitation on 

the nomination/selection of members; (0) Statute 

does not place a con$ict of interest limitation on 

members. Source: Agency statute.

Congressional 

Input: (1) Statute provides some mechanism for 

congressional input in the nomination process aside 

from con%rmation; (0) Statute does not provide for 

congressional input. Examples of congressional 

input include “appointed by the President a&er taking 

into consideration the recommendation made by the 

Speaker of the House,” “appointed by the President 

upon the recommendation of the President of the 

Senate,” or similar language, and also includes those 

agencies where members of Congress are voting 

20
A - 

members of the Board. Source: Agency statute.

Party Balancing: (1) If the agency is a commission or has a 

board of directors, the statute limits the number 

of members who may serve from the same party; 

(0) If the agency is a commission or has a board 

of directors, the statute does not limit the number 

of members who may serve from the same party; 

(.) Denotes an agency is not a commission or does 

not have a board. Statutes that require the President 

to select among recommendations from separate 

party leaders in Congress (e.g., Senate majority and 

minority leaders) but do not speci%cally place limits 

on the number of members who can be from one 

party are coded as (0).343 Source: Agency statute.

Limitations on Removals

Fixed Terms: (1) Statute speci%es a %xed term for members, 

commissioners, or agency heads; (0) Statute does not 

specify a %xed term for members/commissioners/

agency head. Source: Agency statute.

Term Length: If Fixed Terms is coded (1), the number of years 

 speci%ed for each term. Source: Agency statute.

Staggered Terms: (1) If the agency is a commission or has a board of 

directors, Fixed Terms is coded (1), and the 

statute %xes the terms of the initial members of 

the commission or board so that nomination in 

future years will be staggered; (0) If the agency is a 

commission or has a board of directors, Fixed Terms 

is coded (1), and the statute does not %x terms so that 

nomination will be staggered; (.) !e agency is not a 

commission or does not have a board of directors. 

Source: Agency statute.

343. But see Datla and Revesz, Deconstructing Independent Agencies, supra note 9. 

21
A - 

For Cause: (1) Statute states that members of the commission or 

board or the agency head may only be removed by 

the President for “neglect of duty,” “malfeasance in 

o"ce,” “ine"ciency,” or similar language; (0) Statute 

does not place limitation on the removal of members 

of the commission or board or the agency head. 

Source: Agency statute.

Double For 

Cause: (1) Agency identi%ed as having two levels of “for 

cause” protection; (0) Agency not identi%ed as having 

two levels of “for cause” protections. Source: Appendix 

A of the dissenting opinion of Justice Breyer in Free 

Enterprise Fund v. Public Co. Accounting Oversight 

Bd. 130 S. Ct. 3138 (2010).

Bureau Fixed 

Term: (1) Sub-agency bureau has a %xed term; (0) No bureau 

 inside agency has an o"cial with a %xed term. Source: 

 Agency statute.

ServePresident: (1) Statute speci%es that o"cials serve at the 

pleasure of the President; (0) Statute does not 

speci%cally state that o"cials serve at the pleasure of 

the President. Source: Agency statute.

Continuation 

Replacement: (1) If Fixed Terms is coded (1) and statute provides 

that a member or commissioner or the agency 

head whose term has expired may serve until a 

successor has been appointed and quali%ed; (0) 

If Fixed Terms is coded (1) and statute does not 

provide for continuation until replacement; (.) 

!e commission or board members or agency head 

do not have %xed terms.344 Source: Agency statute.

344. !e Department of the Treasury’s statute provides that, when a term of o"ce 

of any o"cer of the Department ends, the o"cer may continue to serve until a 

successor is appointed and quali%ed. 31 U.S.C. § 329(a)(1) (2012). However, 

because the Secretary of the Treasury does not have a %xed term, the Treasury 

Department is coded (.)

22
A - 

Acting Service 

Rules: (2) Statute speci%es that in the event of absence, 

disability, or vacancy at the position of agency head, 

the President may designate an individual to %ll the 

vacancy; (1) Statute designates a speci%c o"cial 

within the agency who may perform the agency 

head’s duties in case of absence, disability, or vacancy 

and does not allow for presidential designation; (0) 

Statute is silent on acting service. Source: Agency 

statute.

Chair Selection and Retention

PAS Head of 

Commission:345 (1) Statute speci%es that the President, with advice 

and consent of Senate, appoints the agency head 

and the agency head is not an o"cial from another 

agency;346 (0) Statute does not specify that the 

President appoints the agency head with the advice 

and consent of the Senate. S ource: Agency statute.

President Selects 

Chair: (1) Statute speci%es that the President designates the 

agency head but does not provide for Senate advice 

and consent; (0) Statute does not specify that the 

President designates the agency head without 

Senate advice and consent. Source: Agency statute.

Head Elected 

by Commission: (1) Statute provides that the head of the agency is 

elected from among members or commissioners 

345. Co-chairmen selected by di#erent means are coded as a (1) in two categories. 

For example, the Appalachian Regional Commission has co-chairmen—one 

appointed by the President and con%rmed by the Senate, and one elected by the 

state members of the Commission. 40 U.S.C. §§ 14102(a)(1), 14301(b) (2012). 

!is agency is coded as a (1) under PAS Head of Agency and as a (1) under Elected 

Head of Agency.

346. For example, the Managing Trustee of the Federal Hospital Insurance Trust 

Fund Board is the Secretary of Treasury. 42 U.S.C. § 1395i(b) (2012). !is position 

is coded as a (0).

23
A - 

of the agency; (0) Statute does not provide for the 

election of the agency head.347 Source: Agency statute.

Outside Head of 

Commission: (1) Statute speci%es that the head of the agency is 

an o"cial who also serves in a position in the 

administration that is outside of the agency; (0) 

Statute does not specify that the head of the agency 

is an outside o"cial. For example, the Secretary of 

the Treasury is the Managing Trustee of the Federal 

Supplementary Medication Insurance Trust Fund 

Board. !is Board is therefore coded (1). Source: 

Agency statute.

Chair Removal: If the agency is a multi-member board or commission 

and the chair of the board or commission is selected 

by the President or appointed by the President with 

the advice and consent of the Senate and is not a 

designated o"cial from another agency, (1) Statute 

speci%es a term of o"ce for the chair of the agency; (2) 

Statute speci%es that the chair may only be removed 

for ine"ciency, neglect of duty, or malfeasance in 

o"ce; (3) Statute speci%es that the chair serves at 

the pleasure of the President, may be replaced at any 

time by the President, or other similar language; (0) 

Statute does not specify a term of o"ce for the chair, 

does not state that the chair may only be removed 

for cause, and does not state that the chair serves at 

the pleasure of the President. Statutes that specify 

terms of o"ce or for cause protections for board 

members or commissioners generally but are silent 

with respect to the chair speci%cally are coded (0). 

Source: Agency statute.

347. In the following agencies, the agency statute uses a term other than “elect”: 

Nat.ional Mediation Board (“designate”); Tennessee Valley Authority (“select”); 

and U.S. Election Assistance Commission (“select”).

24
A - 

Centralized OMB Review:

No OMB Budget 

Review:348 (2) Statute requires the President to submit the 

agency’s budget requests to Congress without 

revision, together with the President’s own budget 

proposals; (1) Statute requires the agency to submit 

its budget directly to Congress without OMB review; 

(0) Statute is silent on OMB budget review. Source: 

Office of Mgmt. & Budget, Executive Office

of the President, OMB Circular A-11 (2001); 

Memorandum from Jim Jukes, Assistant Director 

for Legislative Reference, O"ce of Management and 

Budget, Agencies with Legislative and Budget “Bypass” 

Authorities (Feb. 20, 2001), available at http://www.

citizen.org/documents/OMBDocument1.pdf.

NO OMB Rule 

Review: (1) !e agency is exempted from submitting all 

regulatory actions to the administrator of the O"ce 

of Information and Regulatory A#airs; (0) !e 

agency is not exempted from OIRA review. Source: 

Exec. Order No. 12,866, 58 Fed. Reg. 51,735 (1993); 

44 U.S.C. § 3502 (2012).

No OMB 

Communications

Review:349 (2) !e agency asserts “informal” legislative bypass 

authority without any explicit authority, statutory 

or otherwise, even though OMB Circular A-19 does 

348. !e Federal Aviation Administration and the Surface Transportation Board, 

which are both part of the Department of Transportation, have statutorilybased budgetary bypass authority. However, because the entire Department of 

Transportation does not have bypass authority, DOT is coded (0). 

349. !e Federal Aviation Administration and the Surface Transportation 

Board (both part of the Department of Transportation), as well as the O"ces 

of the Comptroller of the Currency, !ri& Supervision, and National Taxpayer 

Advocate (all part of the Department of the Treasury), have statutorily-based 

legislative bypass authority. However, because neither the entire Department of 

Transportation nor the Department of the Treasury have bypass authority, these 

departments are coded as (0). 

25
A - 

cover the agency; (1) Statutory law exempts 

the agency from submitting its communications to 

Congress to OMB for coordination and clearance 

prior to transmittal to Congress; (0) !e agency 

must submit communications to Congress to OMB 

for coordination and clearance prior to transmittal 

to Congress. Source: Agency statute; 12 U.S.C. § 250 

(2012); Office of Mgmt. & Budget, Executive

Office of the President, OMB Circular

No. A-19 (1979); Memorandum from Jim Jukes, 

Assistant Director for Legislative Reference, O"ce of 

Management and Budget, Agencies with Legislative 

and Budget “Bypass” Authorities (Feb. 20, 2001), 

available at http://www.citizen.org/documents/

OMBDocument1.pdf.

Independent 

Litigating: In general, the Attorney General retains full authority 

over all litigation, civil and criminal, to which the 

United States, its agencies, or its departments are 

parties, unless otherwise authorized by law. Some 

statutes establish an exception to the Attorney 

General’s authority and expressly authorize an 

agency to represent itself in legal proceedings. Courts 

interpret these statutes narrowly, and only statutes 

that are clear and unambiguous will establish 

an exception.350 !e researchers also interpret the 

statutes narrowly. (1) Agency authorizing statute 

includes provisions relating to independent litigating 

authority; (0) Statute does not include provisions 

concerning the agency’s ability to represent itself in 

legal proceedings. Source: Agency statute.

350. E.g., United States v. California, 332 U.S. 19 (1937); United States v. Morgan, 

222 U.S. 274 (1911).

26
A - 

Features Insulating from Congress

Independent Sources 

of Funding: (1) Statute authorizes the agency to accept, use, and 

dispose of gi&s, donations, or property (real, personal, 

or mixed) in furtherance of the agency’s purposes; (2) 

Statute authorizes the agency to charge and collect 

reasonable administrative fees for products, services, 

access to data, etc.; (3) Statute authorizes the agency 

to lease, purchase, acquire, own, hold, improve, or 

otherwise deal in property (real, personal, or mixed); 

(4) Statute authorizes the agency to invest or reinvest 

any property (real, personal, or mixed) or monies; 

(5) Statute establishes a working capital fund or other 

similar fund to be available to the agency without 

%scal year limitation for one or more purposes; 

(6) Statute authorizes the agency to participate in 

activities generally associated with the business of 

banking, such as the authority to receive deposits, 

to insure credit risks of loss, to borrow and lend 

money, to purchase, sell, and guarantee securities, 

or other similar functions; (7) Statute authorizes 

agency to assess and collect fees or charges for the 

purpose of covering a substantial portion of the cost 

of operating expenses incurred by the agency;351

(9) Statute authorizes agency to accept a source of 

funding outside of appropriated monies that is not in 

the coding scheme. Source: Agency statute.

351. Even if the statute authorizes a speci%c agency within an executive department 

to collect fees, that department is not, as a whole, funded substantially by such 

fees and therefore does not fall under (7). For example, while the Federal Energy 

Regulatory Commission must assess and collect fees and annual charges in any 

%scal year in amounts equal to all of the costs incurred by the Commission in 

that year, the Department of Energy is coded (2) because these fees do not cover a 

substantial portion of the operating costs of the entire Department of Energy. In 

addition, a list of agencies that do not accept appropriations from Congress was 

compiled using Note, Budgetary Autonomy and Removal Protection, supra note 

133, at 1824.

27
A - 

Congressional Oversight

Committees 

Con%rming 

Appointments:352 !e names of the committees in the Senate 

handling nominations for presidential appointee 

positions requiring Senate con%rmation. Source: 

Henry B. Hogue, Maureen Bearden & Terrence L. 

Lisbeth, Cong. Research Serv., RL30959, Presidential 

Appointee Positions Requiring Senate Con%rmation 

and Committees Handling Nominations (2008), 

available at http://www.senate.gov/pagelayout/

committees/d_three_sections_with_teasers/

committees_home.htm (for agencies not covered in 

Hogue et al.).

Reporting 

Requirements:353 Number of statutorily mandated recurring 

agency reports to Congress in primary authorizing 

statute, excluding Inspector General, Comptroller 

General, or Government Accountability O"ce 

reports. Source: Agency statute.

Number

Committees: Number of committees speci%ed by statute as 

overseeing the agency in any way, including, inter alia, 

receiving reports, hearing testimony, or exercising a 

352. Senate committees of the 112th Congress include: Agriculture, Nutrition, 

and Forestry; Appropriations; Armed Services; Banking, Housing, and Urban 

A#airs; Budget; Commerce, Science, and Transportation; Energy and Natural 

Resources; Environment and Public Works; Finance; Foreign Relations; Health, 

Education, Labor, and Pensions; Homeland Security and Governmental A#airs; 

Indian A#airs; Judiciary; Rules and Administration; Select Committee on Ethics; 

Select Committee on Intelligence; Select Committee on Aging; Small Business and 

Entrepreneurship; and Veterans A#airs.

353. House committees of the 112th Congress include: Agriculture; 

Appropriations; Armed Services; Budget; Education and the Workforce; Energy 

and Commerce; Ethics; Financial Services; Foreign A#airs; Homeland Security; 

House Administration; Intelligence; Judiciary; Natural Resources; Oversight and 

Government Reform; Rules; Science, Space, and Technology; Small Business; 

Transportation and Infrastructure; Veterans’ A#airs; and Ways and Means.

28
A - 

legislative veto. Source: Agency statute.

Reporting 

Committees: !e names of the committees included in the 

 NumberCommittees count. Source: Agency statute.

Other Key Structural Features

Government-Wide Management Laws

CIO: (1) !e agency is statutorily mandated to have a Chief 

Information O"cer; (0) !e agency is not statutorily 

mandated to have a Chief Information O"cer. 

Source: Clinger-Cohen Act, 40 U.S.C. § 11315 (2012) 

(incorporating 40 U.S.C. § 11314(c) (2012)).

IG: (3) !e agency is an “establishment” as de%ned by 

the Inspector General Act of 1978 and has an O"ce 

of Inspector General that is headed by an Inspector 

General who is appointed by the President by and 

with the advice and consent of the Senate;354 (2) !e 

agency is a “designated federal entity” as de%ned 

by the Inspector General Act of 1978 and the OMB 

published list of designated federal entities and has 

an O"ce of Inspector General that is headed by an 

Inspector General who is appointed by the agency; 

(1) !e agency is a “federal entity” as de%ned by 

the Inspector Generals Act of 1978 and the OMB 

published list of federal entities and has an audit 

o"ce that is required to report an annual audit and 

investigative activities to each house of Congress 

and the Director of OMB; (0) !e agency is not an 

“establishment,” a “designated federal entity,” or a 

354. Even though the Inspector General Act does not include them, the Central 

Intelligence Agency and the O"ce of the Director of National Intelligence are 

coded as a (3) because they have statutorily-mandated, PAS Inspector Generals. 

See 50 U.S.C. § 403q (2012) (the Central Intelligence Agency’s IG requirements); 

50 U.S.C. § 403-3h (2012) (the O"ce of the Director of National Intelligence’s IG 

requirements).

29
A - 

“federal entity.” Source: Inspector General Act of 

1978, 5 U.S.C. §§ App. 3(2), (8G) (2012). See also

O"ce of Mgmt. & Budget,, 74 Fed. Reg. 3656-57 

(Executive O"ce of the President Jan. 21, 2009); 

U.S. Government Accountability O"ce, Inspectors 

General: Reporting on Independence, E"ectiveness, 

and Expertise (2011).

CFO: (2) !e Chief Financial O"cers Act mandates that 

the agency have a Chief Financial O"cer appointed 

by the President and con%rmed by the Senate; (1) 

!e Chief Financial O"cers Act mandates that the 

agency have a Chief Financial O"cer appointed by 

the head of the agency and is a career appointee from 

either the competitive service or the Senior Executive 

Service; (0) !e Chief Financial O"cers Act places no 

requirements on the agency. Source: Chief Financial 

O"cers Act, 31 U.S.C. § 901(b) (2012).

Sunshine: (1) !e agency is subject to the Government in the 

Sunshine Act of 1976; (0) !e agency is not subject 

to the Government in the Sunshine Act of 1976. 

Ambiguity resulting from the Act’s provision relating 

to the phrase “collegial body composed of two or 

more individual members, a majority of whom are 

appointed to such position by the President with the 

advice and consent of the Senate”355 is resolved by 

following the rule of Symons v. Chrysler Corporation 

Loan Guarantee Board,

356 which does not count ex 

o"cio members or members of the agency who 

are appointed to other o"ces. For example, the 

Federal Hospital Insurance Trust Board, which is 

composed of the Commissioner of Social Security, 

the Secretaries of the Treasury, Labor, and Health 

and Human Services, and two members of the public 

appointed by the President by and with the advice 

355. 5 U.S.C. § 522b(a)(1) (2012).

356. 670 F.2d 238 (D.C. Cir. 1981).

30
A - 

and consent of the Senate is coded (0).357 Source: 

Agency statute; Government in Sunshine Act of 

1976, 5 U.S.C. § 522b (2012).

Review 

Commissions: In some agencies, agency decisions must be reviewed 

or approved by an external body before the decisions 

go into e#ect. For example, the Postal Regulatory 

Commission may set aside any United States Postal 

Service decision to close or consolidate any post 

o"ce if the Commission %nds the decision to be 

arbitrary or capricious.358 (1) Statute establishes a 

review commission for the agency or any sub-part 

of the agency; (0) Statute does not establish a review 

commission for the agency. !e review commission 

must currently be in operation. Source: Agency 

statute.

Advisory 

Commissions: (1) Statute establishes an advisory commission 

attached to the agency or any of its subparts; (0) 

Statute does not establish an advisory commission 

for the agency. !e advisory commission must either 

currently be in operation or have the option of being 

established. Terminated advisory commissions do 

not qualify. Source: Agency statute.

Establish Advisory

Commissions: (1) Statute speci%es that one or more advisory 

commissions may be established to advise the agency, 

or any of its subparts, in any way; (0) Statute 

357. Note that this coding is for the entire agency and does not consider entities 

within an agency. For example, the National Council on the Humanities (which is 

composed of 26 members appointed by the President with the advice and consent 

of the Senate), falls under the Sunshine Act, but the National Endowment for the 

Humanities (which is headed by a single chairperson appointed by the President 

by and with the advice and consent of the Senate), does not, and is, therefore, 

coded (0).

358. 39 U.S.C. § 404(d)(5) (2012).

31
A - 

does not specify that advisory commissions may be 

established. Source: Agency statute.

Action Requires 

Approval: Some agencies cannot take speci%c action without 

getting prior approval from one or more actors 

outside the agency. !is approval may come from 

another part of the executive branch, or may come in 

the form of a legislative veto. For example, the Chief 

Executive O"cer of the Corporation for National 

Community Service cannot issue regulations 

establishing a selection and compensation system for 

the Corporation’s employees without %rst obtaining 

the approval of the Director of the O"ce of Personnel 

Management.359 Similarly, the Commodity Futures 

Trading Commission cannot implement any plan to 

charge and collect fees until that plan is approved by 

the House Agriculture Committee and the Senate 

Agriculture, Nutrition, and Forestry Committee.360

(1) Statute speci%es that one or more agency actions 

require outside approval before being taken; (0) 

Statute does not specify that any agency actions 

require outside approval. Source: Agency statute.

Legislative Veto: (1) Statute speci%es that one or more agency 

actions cannot be taken until approved by Congress 

or a committee in Congress; (0) Statute does not 

specify that Congress must approve one or more 

agency actions. Source: Agency statute.

Rulemaking: (1) Statute authorizes agency to promulgate rules 

and/or regulations; (0) Statute does not speci%cally 

authorize agency to promulgate rules and/or 

359. 42 U.S.C. § 12651d(c)(7) (2012).

360. 7 U.S.C. § 16a(a) (2012).

32
A - 

regulations. Source: Agency statute.361 

Economically 

Signi%cant Rule: (1) Agency has promulgated an economically 

signi%cant rule in the last 15 years; (0) Agency has 

not promulgated an economically signi%cant rule 

in the last 15 years. Source: O"ce of Information 

and Regulatory A#airs, O"ce of Management 

and Budget, Historical Reports, available at http://

www.reginfo.gov/public/do/eoHistoricReport 

(information on economically signi%cant rules).

No Rulemaking: (1) Agency has not promulgated a rule via formal 

or informal rulemaking in the last 15 years; (0) 

Agency has promulgated a rule in the last 15 years. 

Source: Federal Register (https://www.federalregister.

gov).

Rulemaking with hearing: (1) Agency has promulgated a rule 

 through formal rulemaking in the last 15 years; (0) 

 Agency has not promulgated a rule through formal

 rulemaking in the last 15 years. Source: Federal 

 Register (https://www.federalregister.gov).

Adjudication: (1) Statute gives agency, or any sub-part of the 

agency,362 the authority to conduct or hold hearings 

or adjudication, take testimony, receive evidence, 

employ administrative law judges, or other similar 

adjudicatory functions; (0) Statute does not 

speci%cally authorize adjudication or the 

361. !e coding for this variable was also veri%ed by using the Federal Register’s 

website to con%rm that the agency had promulgated at least one rule in the last 

15 years. See National Archives and Records Administration, Federal Register - 

Article Search, https://www.federalregister.gov/articles/search.

362. For example, several bureaus within executive departments have adjudication 

authority, whereas the departments as a whole do not conduct adjudication (see, 

e.g., Departmental Appeals Board in the Department of Health and Human 

Services; Executive O"ce for Immigration Review in the Department of Justice).

33
A - 

employment of administrative law judges. Mere 

authority to conduct hearings is not enough to 

constitute a coding as (1). !ere must be some 

evidence in the statute that the authority to conduct 

hearings is accompanied by some other function 

indicative of adjudication (the ability to subpoena 

witnesses, etc.). Source: Agency statute; Association 

of Administrative Law Judges, Agencies Employing 

Administrative Law Judges, http://www.aalj.org/

agencies-employing-administrative-law-judges (last 

accessed Aug. 29, 2012).

Adjudication (APA): (1) Main authorizing statute includes 

reference to adjudicatory portion of APA (5 U.S.C. § 

554); (0) main authorizing statute does not reference 

to adjudicatory portion of APA (5 U.S.C. § 554). 

For coding purposes, cross reference tables in the 

United States Code Annotated were reviewed to %nd 

agencies identi%ed under the APA provision relating 

to adjudication (5 U.S.C. § 554). !is list includes 

the agencies with citations that directly reference the 

procedures as outlined in that section. Each reference 

was read to be sure that the provision included, rather 

than excluded, adjudicatory proceedings under 5 

U.S.C. § 554. Source: Agency statute; United States 

Code Annotated.

Administrative Law 

Judges: (1) Agency Employs Administrative Law Judges; (0) 

Agency does not employ administrative law 

judges. Source: Association of Administrative Law 

Judges , Agencies Employing Administrative Law 

Judges, http://www.aalj.org/agencies-employingadministrative-law-judges (last accessed Aug. 29, 

2012).

34
A - 

Administrative Law 

Judges (2): (1) Agency Employs Administrative Law Judges; (0) 

Agency does not employ administrative law judges. 

Source: Appendix C of the dissenting opinion of 

Justice Breyer in Free Enterprise Fund v. Public 

Company Accounting Oversight Board 130 S. Ct. 3138 

(2010).

35

www.acus.gov

1120 20th Street, NW 

Suite 706 South

Washington, DC 20036

Department of Justice

Department of Labor

Department of State

Department of the Interior

Inter-American Foundation

James Madison Memorial Fellowship Foundation

Legal Services Corporation

Merit Systems Protection Board

Metropolitan Washington Airport Authority

Millennium Challenge Corporation

Mississippi River Commission

Morris K. Udall Scholarship Foundation

National Aeronautics & Space Administration

National Archives & Records Administration

National Consumer Cooperative Bank

National Council on Disability

National Credit Union Administration

National Endowment for the Arts

National Endowment for the Humanities

National Institute of Building Sciences

National Labor Relations Board

National Mediation Board

National Railroad Passenger Corp

National Science Foundation

National Security Education Board

National Transportation Safety Board

Nuclear Regulatory Commission

Occupational Safety & Health Review Commission

O!ce of Administration

O!ce of the Director of National Intelligence 

O!ce of Navajo & Hopi Indian Relocation

O!ce of the Federal Coordinator for Alaska Natural 

Gas Transportation Projects 

O!ce of Government Ethics

O!ce of Management & Budget

O!ce of National Drug Control Policy

O!ce of Personnel Management

O!ce of Science & Technology Policy

O!ce of Special Counsel

O!ce of the U.S. Trade Representative

Overseas Private Investment Corporation

Peace Corps

Postal Regulatory Commission

Privacy & Civil Liberties Oversight Board

Railroad Retirement Board

Securities & Exchange Commission

Securities Investor Protection Corporation

Selective Service System

Small Business Administration

Social Security Administration

Social Security Advisory Board

State Justice Institute

Tennessee Valley Authority

U.S. African Development Foundation

U.S. Agency for International Development

U.S. Election Assistance Commission

U.S. Institute of Peace

U.S. International Trade Commission

U.S. Postal Service

U.S. Trade & Development Agency

White House O!ce