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Federal Communications Commission

Consumer Product Safety Commission

Federal Deposit Insurance Corporation

Corporation for National Community Service
Corporation for Public Broadcasting

Federal Election Commission
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Council of Economic Advisers

Federal Housing Finance Agency

Council on Environmental Quality

Federal Labor Relations Authority
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Defense Nuclear Facilities Safety Board

Federal Mediation & Conciliation Service

Delta Regional Authority

Federal Mine Safety & Health Review Commission

Department of Agriculture

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Ad

Administrative Conference
of the United States

Sourcebook of United States
Executive Agencies
David E. Lewis
Jennifer L. Selin
Vanderbilt University
Department of Health & Human Services
Department of Homeland Security

Harry S Truman Scholarship Foundation

First Edition Institute for Museum & Library Services

Department of Housing & Urban Development

December 2012

Institute of American Indian Arts

About the Administrative Conference
of the United States
The Administrative Conference is an independent federal agency
dedicated to improving the fairness, efficiency and effectiveness of
federal agency processes and practices through consensus-driven
applied research. The Conference is a public-private partnership
whose members include: the Chairman and 10 other presidential
appointees, who comprise the Council; 50 senior government
officials drawn from federal agencies, boards, and commissions;
and 40 public members drawn from the private sector, including
academia, who reflect a wide diversity of views and backgrounds.
The work of the Conference is also supported by a small, full-time
staff in the Office of the Chairman.
To fulfill its mission, the Conference and its staff 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. These 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 efforts 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. The Conference also
serves as a central resource for agencies, as well as other federal
officials, by providing nonpartisan, expert advice and publishing
reference guides on administrative procedural or regulatory topics.
Conference staff also engages in extensive outreach by, for example,
appearing as speakers and conducting workshops and forums (often
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

(Second Printing: March 2013)

This report was prepared for the Administrative Conference of the
United States pursuant to a consultant contract with the Office of
the Chairman. While it has been widely circulated for comment,
the views expressed are those of the authors and do not necessarily
reflect those of the members of the Conference or its committees.

Chairman’s Foreword
This volume honors important traditions and events. The
first is the Administrative Conference’s commitment to publishing
significant reference works—labeled “sourcebooks”— that are
invaluable tools for agencies, executive officials, members of
Congress, and the general public. A complete list of prior Conference
sourcebooks and other publications can be found on our website.
This Sourcebook also honors a 32-year-old classic by Ronald
Moe of the Congressional Research Service, called The Federal
Executive Establishment: Evolutions and Trends, published by the
Senate Governmental Affairs Committee in May 1980. The Moe
report described and analyzed the “growth, development and
operation” of federal agencies, and has proven an indispensable
reference tool for government officials and academics alike, as I can
personally attest.
The 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. The report has been prepared by the
Office 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 Office 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 drafts along the way to publication. It also includes
Jeffrey Lubbers, now Special Counsel, who brought to my attention
the Moe report many years ago when Jeff was the Conference’s
Research Director.
The laboring oars on this project belonged to our consultants,
David Lewis and Jennifer Selin. At my urging and cajoling,
ii

Professor Lewis enthusiastically undertook this project and shared
the research burden with his colleagues and graduate students at
Vanderbilt University. The hours put into crafting this work are far
too numerous to count, and they include a presentation by Professor
Lewis on a preliminary draft to congressional staff in August 2012.
* * *
The purpose of this volume is to make government work
better, which is the overall mission of the Conference. For agency
general counsels, congressional staff, executive officials, 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 often lead reformers to
innovative and creative solutions, to “imagine another reality” in
Thomas Mann’s words.
I am proud of the many efforts that produced this work,
and I commend it to all who are committed to understanding and
improving the administrative process.
Paul R. Verkuil

iii

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 The 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
differences in internal features of administrative agencies importantly
and predictably influence 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.

iv

Acknowledgments
The 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, Jeffrey 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. They saved us from many
errors. Any errors that remain are our own.

v

Corrections to First Edition
(Second Printing: March 2013)

vi

Page

Correction

114 – Table 13, col. (3)

Under column (3): Deleted CFPB and
added USITC to list of agencies.

126 – Table 16, fn. a

Last sentence deleted from footnote a.

126 – Table 16, col. 2

First sentence in second row of
middle column under heading “Chief
Information Officer” revised to read:
“The statute’s CIO requirements
(44 U.S.C. § 3506(a)) apply
broadly to “agencies” as defined in
44 U.S.C. § 3502(1): any executive
department, military department,
Government corporation, Government
controlled corporation, or other
establishment in the executive branch
of the Government (including EOP,
but with certain other exclusions), or
any independent regulatory agency.”

127 – Table 17, Note

The last three sentences of
the Note were deleted.

Table of Contents
CHAIRMAN’S FOREWORD........................................................................................ii
ABOUT THE AUTHORS..............................................................................................iv
ACKNOWLEDGMENTS...............................................................................................v
PART I: INTRODUCTION............................................................................................1
A. Need for This Report..................................................................................................2
B. Methodology................................................................................................................5
C. Structure of This Report............................................................................................8
PART II: WHAT IS THE FEDERAL EXECUTIVE ESTABLISHMENT?................9
A. What is a Federal Agency?......................................................................................13
B. What This Report Omits..........................................................................................17
PART III: OVERVIEW OF THE FEDERAL EXECUTIVE ESTABLISHMENT...19
A. Executive Office 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. The 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
vii

4. Government Corporations and Government-Sponsored Enterprises (GSEs)..60
5. Other Forms of Government Agency: Non-profits 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 Than Existing Agencies?.........................................93
B. Agency Reorganization and Termination..............................................................95
C. Why do Federal Agency Designs Differ?..............................................................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

viii

List of Tables
Table 1. Agencies in the Executive Office 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-Specific 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

ix

Table 18. Agencies With Authorizing Statutes That 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

x

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. Simplified Depiction of Current Federal Civilian Personnel System......88

xi

Part I
Introduction
This 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 efforts to pinpoint problems and clarify the
consequences of different design choices for agency performance.
It is written as a resource for members of Congress and their staffs,
agency officials, and the general public. The 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 The
old farm metaphor, while a better characterization of the New Deal
executive establishment than the current one, is useful. This report
is intended to be like a map that marks the different buildings in
relation to one another and to the farm. It provides details about
the different uses and designs of the buildings, how the farm has
developed, and how all the buildings relate together. The 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. This report uses the term federal executive establishment rather than executive
branch. This choice reflects the fact that numerous federal agencies do not fit neatly
in the executive branch. They 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) [hereinafter 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) [hereinafter President’s Comm. on Admin. Mgmt.].
1

A.

Need for This 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
office to reform substantially or eliminate whole departments and
agencies.5 Any effort 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 influence over non-statutory policy
decisions and how well federal agencies perform in carrying out

3. 12 U.S.C. § 5491 (2012).
4. Press Release, Office 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-office/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
Think 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).
2

statutorily mandated responsibilities.6 Agency design choices also
reflect 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
different 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.
This 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. This report
describes these structures and their effects.
There is currently no authoritative treatment of the structure
and organization of the federal executive establishment. The last
effort to create such a treatment was in 1980 when Dr. Ronald C.
Moe of the Congressional Research Service produced The Federal
Executive Establishment: Evolution and Trends at the request of the
Senate Committee on Governmental Affairs.7 However, much has

6. For recent treatments about how the structure of federal agencies influences
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) [hereinafter 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, The Politics
of Bureaucratic Structure, in Can the Government Govern? (J.E. Chubb and
P.E. Peterson eds., 1989) [hereinafter 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.
3

changed since 1980.8 Admirable projects have subsequently described
different components of the executive establishment, but no works
replicate the comprehensive view of this earlier work.9 Each year the
Government Printing Office publishes the United States Government
Manual,10 which is the official handbook of the federal government.
Yet, the Manual is not written to provide information systematically

8. These changes encompass bureaucratic organization, oversight, and personnel.
The 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. The
Civil Aeronautics Board was eliminated and the Social Security Administration
was removed from the Department of Health and Human Services. The financial
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. The 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 efficiency 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. The 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 effects on outputs and performance.
Researchers have identified different features of agency design and how different
design choices enhance or reduce the influence of different 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, The
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) [hereinafter Kosar, Gov’t
Corp.]; Marshall J. Breger and Gary J. Edles, Established by Practice: The Theory
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) [hereinafter Datla and Revesz,
Deconstructing Independent Agencies].
10. E.g., Nat’l Archives & Rec. Admin., The United States Government
Manual (2011) [hereinafter NARA, Gov’t Manual].
4

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 Office of the President (EOP), the 15

11. The 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 fixed 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 [hereinafter 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. The team lead also coded the statutes for each of the agencies. After 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.
The only exception to this pattern was for agencies that were the responsibility of
the team lead.
5

executive or “Cabinet” departments,14 and 81 independent agencies.15
Researchers noted the location of each agency in relation to elected
officials and each other (e.g., EOP, executive department, independent
agency), features of agency governance (e.g., commission, fixed
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. The President’s cabinet is an informal institution traditionally comprised of
the secretaries of the executive departments and other officials 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. They 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) [hereinafter Moe, President’s Cabinet].
15. This report follows a variation of the definition 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 Senateconfirmed appointees.
16. To the extent practicable, the team lead checked the final justifications 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 often 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 differ 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).
The 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.
6

Mapping the federal executive establishment is an immense
task, encompassing history, law and political science. The 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. The purpose of the report is not to replicate
or redo the important work done by Congressional Research
Service scholars, Government Accountability Office studies, or
academics. Rather, this work borrows heavily from existing sources
in mapping out the executive establishment, identifying key trends,
and collecting for the first time data on key ways that agencies differ
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.
This 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
different. Thus, 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 defines federal agencies as
federal executive instrumentalities headed by one or more political
appointees nominated by the President and confirmed by the Senate.
The report focuses primarily on agency authorizing statutes in its
description of the federal executive establishment. These choices
will be unsatisfying to some, and this is natural given that issues of
law (i.e., is this the right legal definition?) and policy (i.e., is this
useful?) are the subject of disagreement. The 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.

7

C.

Structure of This Report

The report is divided into two main sections. The first
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 influence of elected officials. The report
provides historical context to explain how the executive establishment
has changed over time and the main ways that agencies differ from
one another. This section also describes the personnel system that
governs the employees who populate the agencies of government.
This section of the report notably highlights the transformation of
the personnel system from one unified system to multiple different
systems. It also describes the increasing diversity of agency types and
structures in the executive establishment. The second section details
how agencies get created, reorganized, and terminated. It provides
extensive details on the different features of agency design that
distinguish among agencies. It focuses specifically on those features
that insulate agencies from presidential and congressional control.
The 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.

8

Part II
What is the Federal Executive Establishment?
The 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 fidelity
to the laws and Constitution. The Constitution does not, however,
prescribe such a strict separation of powers. The federal government
structure is better understood, in the words of Richard Neustadt, as
a system of “separated institutions sharing power.”17 The 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 confirms
nominees and determines how lower level officials will be selected.
It also conducts hearings and investigates the actions of public
officials. Judges adjudicate the actions of legislators and executive
branch officials. The 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 Office (GAO), the Congressional
Budget Office, and the Library of Congress, in addition to legislators,
their staffs, and other officers of the legislature. Congress created
most but not all of these agencies to serve the legislature as staff

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).
9

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 The judicial branch includes the Administrative Office of
the United States Courts, the Federal Judicial Center, and the United
States Sentencing Commission, in addition to the courts and their
judges and officers.20 These units provide administrative support for
the federal courts, offer 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. The Government Printing Office is responsible for
publishing official information for and about all three branches.
The U.S. Botanic Garden, another instrumentality of the legislative
branch, is a national botanic garden that “informs visitors about the
importance, and often 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
The 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 Office of the President or one of the
executive departments) housed in the executive branch, all overseen
18. The legislative branch also includes the Architect of the Capitol, Botanic
Garden, Copyright Office, Medicaid and CHIP Payment and Access Commission,
Open World Leadership Center, and Stennis Center for Public Service.
19. See U.S. Government Accountability Office, About GAO: Making a Difference
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/
about-us (accessed July 6, 2012).
22. Congress, there is no reason why program evaluation of this type is necessarily
a legislative activity. This begs the question of why this responsibility is housed in
an agency in the legislative branch. The 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.
10

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 fit comfortably into any of the three
branches. Rather, they have been designed to be insulated from
the control of elected officials. Many organizations connected to
the federal government, such as federally chartered non-profits
or mixed-ownership government corporations, even stretch the
definition 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 officials, this does not
imply that they are not democratically accountable. These 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.
Thus, 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 The
term “federal executive establishment” is used here in the broadest
sense both to reflect the diversity in federal organizations, as well
as the fact that many federal entities do not neatly reside in the
executive branch.

24. The executive departments are defined by statute. See 5 U.S.C. § 101 (2012)
(defining 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’ Affairs, 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.
11

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 The military services
27. The data for the federal executive establishment are calculated starting with
data from the Central Personnel Data File (CPDF). According to CPDF data on
the Office of Personnel Management’s FedScope website, the federal executive
establishment includes 2.13 million federal civilian employees. This figure,
however, excludes foreign nationals working overseas (40,000), Public Health
Service Commissioned Officer Corps (6,500), and the Federal Reserve (2,331).
In addition, it excludes Foreign Service employees (15,000), the White House
Office (including Executive Residence and Office 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 staffed
by federal employees (e.g., federally sponsored non-profits), and what OPM refers
to as “non-appropriated fund employees.” Office of Personnel Management. Central
Personnel Data File, available at www.fedscope.opm.gov (accessed July 6, 2012)
[hereinafter OPM, FedScope]; Office of Personnel Management, FedScope Data
Definitions: About EHRI-SDM (July 14, 2011), available at http://www.fedscope.
opm.gov/datadefn/DataDefinitions.pdf. To the OPM CPDF (FedScope) data,
figures for omitted federal employees noted above were added by referencing other
sources. See U.S. General Accounting Office, GAO/NSIAD-95-50FS, Overseas
Presence: Staffing 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/files/docs/2013-eop-budget1.pdf
(accessed
July 10, 2012) (data for White House Office); 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 file 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 file 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) [hereinafter Copeland,
Federal Workforce]; United States Courts, Administrative Office of the
United States Courts, available at http://www.uscourts.gov/FederalCourts/
UnderstandingtheFederalCourts/AdministrativeOffice.aspx (accessed July 6,
2012).
12

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 Office of the President, within the executive departments,
and outside of the executive departments, cataloging administrative
agencies is difficult because so many varying definitions abound.
Congress defines what an “agency” is in relation to particular laws
rather than provide one overarching definition. For example, the
Administrative Procedure Act (APA), which governs most federal
agencies, provides one of the broadest and most widely-used
definitions for administrative agencies. The 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. The 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, The New True Size of Government, (NYU Wagner
Graduate School of Public Service, Organizational Performance Initiative, No. 2,
2006) [hereinafter Light, New True Size of Gov’t], available at http://wagner.nyu.
edu/performance/files/True_Size.pdf. The 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, The 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.
13

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 field in time of war or in
occupied territory[.]31
By this definition, 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 difficult are cases where
Congress has created private corporations or venture capital funds.
They pursue public ends as private entities.
Courts have recognized that the APA’s definition 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). The definition 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) (“The statutory
definition 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 specific 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. Office of Admin., 566 F.3d 219
(D.C. Cir. 2009) (the Office of Administration within the Executive Office 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 definition of “agency”
for the purposes of FOIA is broad enough to encompass military authority).
14

authoritative list of government agencies. Every list of federal
agencies in government publications is different. 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 This appears to be on the conservative end of the
range of possible agency definitions. The 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 often 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 Left 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 firms 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 These 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. The appeal of non-traditional agency structures stems from a number of
factors. First, these agencies often have the patina of a private sector firm and the
symbolic sense that they are somehow more efficient than a government agency.
Their 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 influence.
Kevin R. Kosar, Cong. Research Serv., RL30533, The Quasi Government:
Hybrid Organizations with Both Government and Private Sector Legal
Characteristics (2011) [hereinafter Kosar, Quasi Gov’t].
15

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
nonprofits created by the U.S. Government to invest in companies
whose products might be of use to the federal government), and
congressionally chartered nonprofit organizations such as the
National Academy of Public Administration. Disentangling which
of these entities is an “agency” is difficult, particularly since many are
wholly or partly owned and directed by private sector actors.40
Given such definitional difficulties, 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 confirmed
by the Senate (the instrumentality itself rather than its bureaus, offices
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. The 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). These entities were not evaluated as
part of the executive establishment for purposes of this report.
41. The source for Senate-confirmed positions was the Plum Book. See 2008 Plum
Book, supra note 12. While this report was being written, Congress passed the
Presidential Appointment Efficiency 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 confirmation by
more than 160 positions. This influences the total number of Senate-confirmed
positions which, in turn, affects whether some entities are considered agencies for
purposes of this report. The original (pre-Act) list of agencies has been continued
in this report even though several agencies’ appointees no longer require Senate
confirmation, but note in the extended appendix those agencies will no longer have
Senate-confirmed 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 confirmation under PAESA).
16

B.

What This Report Omits

This report also focuses primarily on the top leadership
and activities of agencies in the Executive Office of the President,
executive departments, and independent agencies rather than their
component bureaus, divisions, and committees. Inside federal
agencies are hundreds of bureaus, administrations, divisions, offices,
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 The overwhelming majority of these
committees are attached to specific 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
These units of the executive establishment get little attention in this
report. The executive departments and independent agencies get
attention primarily as agencies in themselves rather than their subagency bureaus and offices.
This report self-consciously relies primarily on the statutory
language of authorizing statutes rather than administrative practice.
So, for example, when the report lists 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 Moffitt, Making Policy Public:
Deliberative Bureaucracy in the American State (unpublished manuscript, on file
with Brown University) (detailing advisory commissions); Seidman, supra note 6,
at 197-202 (discussing advisory commissions).
43. In 1971, the President’s Advisory Council on Executive Organization (Ash
Council) estimated that there were 850 interagency committees. Moe Report,
supra note 1, at 8. These committees emerge from the fact that government
functions do not fit neatly into a limited number of departments and agencies. For
example, the Department of Homeland Security, the Department of Agriculture,
and the Centers for Disease Control are all concerned with the importation of
agricultural foodstuffs. There are intelligence agencies attached to the Secret
Service, Department of Defense, Central Intelligence Agency, and Federal Bureau
of Investigation. When the government needs coordination on broad policy areas
scattered across multiple departments, the solution is either a czar or interagency
committee. The committees are sometimes created by statute and other times
created by executive action.
17

“for cause” protections from removal or quorum requirements for
multi-member bodies, it relies on agency authorizing statutes rather
than commission rules, administrative common law, or agency
practice. The 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.
The reliance on statutory language has the virtue of comparability
and consistency across agencies, but also has the vice of omitting
how agencies may be similar or different in practice in some cases.
The Securities and Exchange Commission provides an example.
Its statutes do not include explicit “for cause” protections against
the removal of commissioners, but courts have determined that
the commissioners have such protections.44  By focusing on which
agencies’ statutes include explicit “for cause” provisions, the report
does not explain the reality of how commissioner tenure may operate
in practice.
The report relies primarily, but not exclusively, on statutory
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 confirming 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 effect legislative policies).
18

Part III
Overview of the Federal Executive Establishment
The federal executive establishment is comprised of several
main parts. It includes the Executive Office 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
significant part is the executive departments. The 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. These entities may be identified 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 The remainder work in an agency in the
Executive Office 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. The
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
often includes characteristics that limit presidential and, to a lesser
extent congressional, influence over agency decisionmaking and
actions.46 These “independent” agencies come in a variety of forms:
administrations, commissions, government corporations, or other
hybrid agencies.47
This section reviews the agencies in the different 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 Affairs, 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 define an independent
agency. See infra Part III.C.
19

executive establishment and describes the personnel system that
defines and populates these agencies. Within these agencies there
are two broad classes of employees governed by different rules for
selection and removal: 1) political appointees and 2) career civil
servants. The former are selected by political officials, usually from
outside the career civil service, and they provide policy direction to
the agency. The latter are employees whose hiring, firing, promotion,
and demotion are governed by merit and protected by federal law
and regulation.48
A.

Executive Office of the President

The 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 The development of a statutorily specified staff for
the President is a relatively modern phenomenon. Early presidents
paid for White House staff from their personal salaries.50 Congress
did not appropriate money for presidential staff until 1857.51
Historically, presidential staffs were small, comprised of secretaries,
clerks, stenographers, and messengers. Presidents often employed
relatives or acquaintances to work for them in the White House.
48. There is one primary government-wide civil service system and numerous
agency-specific systems, but all are loosely organized around merit principles.
Agency-specific systems have been added to provide managers more flexibility
in responding to market pressures for wages and to give them more flexibility in
managing the workforce.
49. Harold C. Relyea, The Executive Office Concept, in The Executive Office of
the President: A Historical, Biographical, and Bibliographical Guide 3
(Harold C. Relyea ed., 1997) [hereinafter Relyea, Executive Office]. As with other
categorizations and typologies, there are exceptions. In 1974, Congress established
the Office of Federal Procurement Policy within the Office 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 staff. 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 staff. Hart, supra note 50, at 17.
20

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. The 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 The
expansion of the national government generated new difficulties 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
The creation of a permanent professional staff 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. The President was provided the ability to select
the director and assistant director of the Bureau of the Budget without Senate
confirmation. 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 staffing during this period).
21

federal employment and the federal executive establishment. Scores
of new agencies were created to put the New Deal program into
effect. 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. After 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 staff. 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 The
new EOP included among its initial components the White House
Office, the Bureau of the Budget (later OMB), and the National
Resources Planning Board.61
1.

Current Structure of the EOP

The EOP is best understood as a warehouse that contains
many distinct agencies and offices rather than as an agency in its
own right. Since its creation, the EOP has included anywhere
from 3 to 17 presidential staff agencies.62 Every President since
Roosevelt inherited an EOP and White House Office staff 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. The 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) [hereinafter 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. These plans for
reorganizing the government (i.e., creation, reorganization, and elimination of
agencies) would go into effect after 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).
22

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 These entities may be identified under a variety
of terms such as bureau, administration, division, or service. More
than 50 different 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 Often 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 Office 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 fixed terms.66
The commissions in the EOP have strong chairs and no protections
from removal. Employees in the EOP also differ 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, The Politicized Presidency, in The New Direction in American
Politics, (J.E. Chubb and P.E. Peterson eds., 1985) [hereinafter Moe, Politicized
Presidency].
64. Relyea, CRS, supra note 59; Hart, supra note 50, at 38.
65. Among EOP agencies, the White House Office, Executive Residence, National
Security Council, and Office of the Vice President are staffed 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.
23

While Congress is responsible for creating a number of
agencies inside the EOP, Congress historically has given the President
a significant 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 Office, supra note 49; Hart,
supra note 50, at 148.
68. This requirement was added by Senator Russell (D-GA) in
response to President Roosevelt’s creation of the President’s Committee
on Fair Employment Practices. The 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 after such an agency or instrumentality has
been in existence for more than one year, if the Congress has
not appropriated any money specifically for such agency or
instrumentality or specifically authorized the expenditure of funds by it.
Pub. L. 78-359, 58 Stat. 387 (1944). This 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 specific appropriation or specific 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 specifically 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) The amended provision has been interpreted to require
only that an agency’s existence be included in larger budget justifications presented
to Congress. See Lewis, Agency Design, supra note 6, at 82.
24

Table 1. Agencies in the Executive Office of the President
EOP Component

Staff
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 Staff

14

75

RO Plan

1949

Office of Administration

220

120

RO Plan

1977

Office of Management and Budget

511

89

Statute

1921

Office of Federal Procurement Policy

Statute

1974

Office of Information and
Regulatory Affairs

Statute

1980

Office of National Drug Control Policy

98

28

Statute

1988

Office of Science and Technology Policy

29

6

Statute

1976

Office of the United States
Trade Representative

248

49

Statute

1975

White House Office

474

70

RO Plan

1939

Executive
Order

1993

Executive
Order

2001

Executive
Order

1993

Domestic Policy Council
Office of National
Aids Policy
Office of Faith Based &
Neighborhood P’ships
Office of Social Innovation
& Civic Participation
National Economic Council
Office of Cabinet Affairs
Office of Communications
Office of Digital Strategy

25

Table 1. Agencies in the Executive Office
of the President, continued
EOP Component

Staff
Size
FY 2012

Budget
$Million

Origin

Date

White House Office, continued
Office of the First Lady
Office of Legislative Affairs
Office of Management
and Administration
Office of Public Engagement
& Intgvt. Affairs
Office of Public Engagement
Office of Intergovernmental
Affairs
Office of Urban Affairs

2009

Office of Scheduling and Advance
Office of the Staff Secretary
Office of the Vice President
Oval Office Operations
Presidential Personnel Office
White House Counsel
Note: Date is year when unit became a part of the EOP. For information on White House Office
structure, see White House, Executive Office 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 staff and budget data
from OMB). There are other components of the Office of Management and Budget. OIRA and
OFPP are included as examples because of their prominence in rulemaking and contracting.

26

The EOP currently includes 10 units that employ 1,965
persons.69 Table 1 includes a list of the components of the EOP
along with staff size and budgets as well as dates they were added
to the EOP. The most visible component of the EOP is the White
House Office. The White House Office is a complex institution in its
own right. According to one count, it includes 135 distinct offices
from the Office of Legislative Affairs to the staff of the Executive
Residence.70 Importantly, it includes what are commonly referred to
as “West Wing” staff such as the Chief of Staff, 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 Office also includes an office for the Vice President.72 The
term “White House” or “White House Staff ” can refer to different
entities and persons depending upon the context. Sometimes the
term “White House” is synonymous with the Executive Office of the
President. In other cases, the “White House” means simply the White
House Office or the White House Office plus a few other units in the
EOP such as the National Security Council.73 For persons working in
69. United States Census Bureau, The 2012 Statistical Abstract: The 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. Office 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. The staff 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. The White House Staff is comprised of persons working on the payroll of the
White House Office, 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. This makes
determining the exact number of persons working in the White House at any time
difficult. The White House is required annually to send to the House Oversight
and Government Reform and Senate Governmental Affairs committees a list of
White House employees and detailees. The 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, The Executive Office of the Vice President, 40 Pres. St.
Quarterly 821 (2010).
73. In his accounting of the White House, for example, Bradley Patterson defines
the “whole White House” as the White House Office plus the Executive Residence,
Office of Policy Development, National Security Council, and Office 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 different ways. First, their employees serve
entirely at the pleasure of the president. Second, they have no independent legal
27

and around the White House, the organizational distinctions often
matter very little, and who works where is not entirely clear. Distinct
offices on an organization chart can be quite blurry in day-to-day
operations.
The EOP also includes the Office 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), Office of the United States Trade Representative
(1963), Council on Environmental Quality (1970), Office of Science
and Technology Policy (1976), Office of Administration (1977),
and Office of National Drug Control Policy (1988). These 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., Office of Management and Budget).75 In
addition, presidents employ EOP agencies and staff to coordinate
federal policies in areas where responsibilities are divided among
multiple agencies (e.g., Office of National Drug Control Policy).
2.

Controversies—Growth and “Czars”

Critics of the growth in the EOP charge that bloated White
House staffs create management challenges of their own for the
authority to take any authoritative action. Third, 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 staff agencies such as the Office 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.
28

President and that the centralization of power in the White House is
bad for governance. The former controversy is illustrated in coverage
of the Watergate and Iran-Contra scandals, which engendered public
pledges to cut White House staff and scholarly analyses noting the
management challenges of the burgeoning presidential staff.76 For
example, the first recommendation of a report of the National
Academy of Public Administration in 1980 was that “The trend
toward enlargement of the immediate White House staff should be
reversed. Rigorous efforts should be made to keep this staff small.”77
White House observers also note an increasing presidential
tendency to centralize authority in the White House, often by
appointing White House or administration officials as policy
coordinators.78 The officials assuming these roles are often referred
to pejoratively as “czars.” The term is shorthand for their position
and a comment on the centralization of power in the White House.79
The title “czar” has been attached to administration officials at
least since the Franklin Delano Roosevelt Administration in
connection with officials in charge of prices, production, and ships.80
Republican and Democratic presidents have designated key officials
to direct policymaking in important areas that required substantial
time and effort to direct effectively. These policy areas are often
substantively and politically complicated, involve administration
officials from many different departments, and have political or
electoral relevance. Presidents designate single officials to “knock
heads” or “cut through the red tape” or “ensure coordinated effort.”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-confirmed officials are also given the same charge by the
President, but their status as Senate-confirmed appointees eliminates the concerns
about testifying before Congress. José D. Villalobos and Justin S. Vaughn, Revolt
Against the Czars: Why Barack Obama’s Staffing 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.
29

It is hard to imagine a modern President being able to coordinate
policymaking in different areas without designating key officials to
stand in for the President in those roles at least part of the time.
The use of administration officials to stand in the place of
the President to coordinate policy has been controversial since the
FDR administration, however, when administration officials were
lampooned in a cartoon in the Evening Star wearing crowns and
robes. Critics charge that such officials unduly centralize authority
in the White House, lack accountability and generate management
difficulties. Criticisms of these officials can follow partisan patterns.
Democrats and Republicans often find such officials objectionable
when the President is from the opposite party. For example,
Democrats were heavily critical of Tom Ridge when he was a
White House official in charge of coordinating homeland security
efforts. Critics complained that Ridge was influencing 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 officials named to coordinate policy
in different areas.
One objection to persons being named to these roles is
that they lack democratic accountability, since those in the White
House are not officers of the United States.83 While some officials
named to coordinate policy on the President’s behalf are Senateconfirmed political appointees, a number are White House aides. As
White House aides, presidential assistants are not subject to Senate
confirmation 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
82. Elizabeth Becker, Senator Insists Ridge Testify Before Congress, N.Y. Times,
April 5, 2002, available at http://www.nytimes.com/2002/04/05/us/senatorinsists-ridge-testify-before-congress.html (accessed July 29, 2012). Ridge was
also criticized for poor performance.  Harold C. Relyea, Organizing for Homeland
Security, 33 Pres. Stud. Quarterly (2003).
83. James P. Pfiffner, President Obama’s White House Czars, 32 Presidency Res.
Group Rep. 5 (2010); Villalobos & Vaughn, supra note 78.
30

plausibly should be nominated and confirmed, and critics worry that
the naming of White House officials in visible policy coordinating
roles is a means of bypassing the Senate confirmation process.
Beyond concerns about accountability and transparency,
some observers worry about the effectiveness of these officials. They
lack formal authority over policy, budgets or personnel, and must
rely on other Senate-confirmed officials in the departments and
agencies to act on their behalf. The 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 officials have uncertain authority, their intervention in federal
administration arguably only confuses lines of accountability.
The growth in the White House staff and the increasing use
of policy coordinators increases the chances that staff interpose
themselves between the President and key officials. In such cases,
departmental secretaries and agency heads, in effect, 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. The 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 staff. 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 staff that aid the President. The growth of
84. Pfiffner, supra note 83, at 5.
85. According to some accounts, even the highest-level officials 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. Pfiffner, supra note 83, at 5-7.
31

the EOP is a relatively recent phenomenon and reflects 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 significant 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 The number of executive departments has varied
over time with the creation of new departments and reorganization
of old departments into new configurations. The first Congress
created the first executive departments, Treasury, State, and War,
in 1789.88 These departments performed the essential government
functions of managing finances, internal affairs (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 fit 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 Office 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)
[hereinafter 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. There were a few exceptions to this early pattern. Specifically, Congress
created four agencies outside the executive departments prior to the Civil War—
the Library of Congress, Botanic Garden, Smithsonian, and Government Printing
Office. Id. at 35. Three of these are located in the legislative branch.
32

assume many of these oddly fitting 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. The departments of Education
(1980), Veterans Affairs (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. The Table also
includes details about the number of employees and appointees in
2012 and 1960 (or later if the department was created after 1960),
for reference.
These 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 (finance, foreign affairs, national
defense) are embodied in executive departments, but so are some
less obvious functions (agriculture, energy, urban policy). The
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) [hereinafter 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.
33

The 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. The
Department of Labor is the successor to the Bureau of Labor (1888).
The Department of Defense is the successor to the Department of
War. The 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. The Department of Health,
Education and Welfare (1953, now the Department of Health and
Human Services) was created from the Federal Security Agency. The
Department of Veterans Affairs Act of 1988 elevated the Veterans
Administration to department status in the form of the Department
of Veterans Affairs.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
There is no fundamental constitutional or management
principle guiding which agencies are departments and which
agencies are sub-department bureaus or independent agencies.
The status and location of agencies is the subject of political
determination. Despite persistent efforts, 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
different departments and agencies. Presidents since at least the
Truman Administration complained about how this fragmentation
of transportation-related responsibilities hindered effective 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 Affairs 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. The first bill proposing the creation of a federal Department of Transportation
was introduced in 1890. Seidman, supra note 6, at 174.
34

agencies into one department. Congressional efforts 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. The effort 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
reflection 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 Office 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 Office 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-office/2012/01/13/
president-obama-announces-proposal-reform-reorganize-and-consolidate-gov
(accessed August 6, 2012).
35

36

Dept.

STAT

DTRS

DOD

DOJ

INT

USDA

Date

1789

1789

1789

1870

1849

1832,
1889

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

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

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

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

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

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

Prominent Bureaus

105,126
0.002%

77,225
0.001%

13

17

217

49

774,244
0.0003%

115,134
0.003%

28

219

30,000
0.01%

106,403
0.001%

PAS

Emp.
% App.

10

0

6

4

5

6

PA

43

41

52

69

28

29

NA

160

42

68

96

44

101

SC

Political Appointees

Table 2.Executive Departments in the United States

219

100

343

218

105

355

Total

1960

0.001%

94,904

96

0.002%

53,257

111

0.01%

31,035

331

0.0002%

1,036,754

159

0.001%

77,318

96

0.01%

37,972

274

Total App.
Emp.
% App.

37

Dept.

COM

DOL

HUD

DOT

Date

1903,
1913

1913

1965

1966

Dederal 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

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

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

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 & Trademark
Office

Prominent Bureaus

15

16,298
0.01%

56,968
0.001%

20

13

21

47,626
0.003%

9,758
0.01%

PAS

Emp.
% App.

3

2

4

4

PA

27

16

24

35

NA

33

47

77

77

SC

Political Appointees

1960
Total App.
Emp.
% App.

83

78

120

0.001%

59,803

63

0.01%

14,940

95

0.01%

7,268

46

0.004%

33,070

137
135
116

Total

Table 2.Executive Departments in the United States, continued

38

DOE

DOED

HHS

DVA

DHS

1977

1979

1953,
1980

1988

2002

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.
Federal Student Aid; Institute of Education Sciences; Office of Special Education &
Rehabilitative Services; Office of Elementary & Secondary Education; Office of
Postsecondary Education;
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.
Board of Veterans Appeals; National Cemetery Administration; Veterans Benefits
Administration; Veterans Health Administration

Prominent Bureaus

316,480
0.0001%

85,642
0.002%

4,620
0.03%

16,381
0.01%

Emp.
% App.

10

16

13

21

PAS

5

5

5

1

PA

10

60

14

23

NA

12

68

115

72

SC

Political Appointees

37

148
149

147
146

117

Total

32
259,406
0.0001%
200
152845
0.001%

0.001%

155,662

92
7,364
0.01%
196

0.01%

21,557

1960
Total App.
Emp.
% App.
150

from U.S. Civil Service Commission/Office of Personnel Management, Employment and Trends, various years. See Appendix A (providing list of agency abbreviations).

Citizenship & Immigration Services; Customs & Border Protection; Federal
198,242
164
Emergency Management Agency; Immigration & Customs Enforcement;
5
0.001%
16
54
89
163
Transportation Security Administration; U.S. Coast Guard; U.S. Secret Service
Note: Office of Personnel Management, Central Data Personnel Data File, supra note 27 (providing employment data for noncareer SESManagement,
(NA) and ScheduleCentral
C (SC) appointees);
2008 PLUMData
BOOK,File,
suprasupra
note 12 note
(providing
data on Senate employment
confirmed political
Note: Office of Personnel
Data Personnel
27 (providing
data for non-career SES (NA) and Schedule C (SC)
appointees (PAS) and other presidential appointments not requiring Senate confirmation (PA)). This data was updated to account
appointees); 2008 Plum
Book,
supra
note
12
(providing
data
on
Senate
confirmed
political
appointees
other presidential appointments not requiring Senate
for passage of the Presidential Appointment Efficiency and Streamlining Act of 2011, which reduced the number(PAS)
of PAS and
positions
requiring
Senatewas
confirmation
andto
made
them PA
No. 112-166, 126
Stat. 1283 (2012).
The finaland
column
confirmation (PA)).
This data
updated
account
forpositions.
passageSeeofPub.
theL.Presidential
Appointment
Efficiency
Streamlining Act of 2011, which reduced the number
includes data on the total number of appointees, employees, and percentage appointed in 1960 unless the department was created
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
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
number of appointees,
employees,
and
percentage
appointed
the department
wasperiod
created
in which case the data come from the next Plum Book
for DOE,
DOED, and
HHS;
1992 for DVA;
and 2004in
for1960,
DHS).unless
Employment
data from earlier
cameafter
from 1960,
U.S. Civil
Service
Commission/Office
of Personnel
Management,
Employment
andDOED,
Trends, various
years. See
Appendix
A (providing
list for
of DHS). Employment data from earlier period came
published after their
creation
(i.e., 1968 for
HUD and
DOT; 1980
for DOE,
and HHS;
1992
for DVA;
and 2004
agency abbreviations).

Dept.

Date

Table 2.Executive Departments in the United States, continued

1. Executive Departments and Other Executive Agencies Compared
The primary difference between an executive department
and an independent administration is symbolic. Department status
is conferred to confirm 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 affirmation that they or
their issues are centrally important. Membership in the Cabinet
itself, however, is discretionary. The President may designate other
executive officials 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. The
Cabinet itself is not generally a decisionmaking body. Inclusion in the
Cabinet has little direct influence on presidential decisionmaking.99
The main structural difference between executive
departments and other agencies, where such differences exist, is
in placement of political appointees. First, the titles and pay levels
for political appointees in executive departments often differ 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 officials
have different 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 significantly smaller than some
independent agencies. Two of the smaller executive departments
99. Fenno, supra at 90; Moe Report, supra note 1.
100. The 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. The 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).
39

are Education (DOED) and Housing and Urban Development.
They 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.
The categorization of an agency as a department provides political
justification for a department-like management structure in terms of
the number of bureaus, assistant, under, and deputy secretaries and
other officials common in other executive departments, even if the
bureaus are significantly smaller. For example, once the Department
of Defense added a deputy secretary for the first time in 1949, other
departments followed suit soon thereafter.101 When presidents name
other officials as members of the Cabinet, this does not change
agency features. It only provides invitations to Cabinet meetings.
2.

The Structure of Executive Departments

From the start, a single person has been nominated by the
President and confirmed by the Senate to head each of the executive
departments. This appears to have been the clear intention of
the Founders after their experience with boards during the preConstitution period.102 Today, a team of presidential appointees
requiring Senate confirmation, and their staffs, manage the
departments. Modern department leadership currently includes
from 15 to 53 Senate-confirmed positions,103 including the secretary,
a deputy secretary, and a number of under and assistant secretaries.
Under these officials are chiefs of staffs and special advisors, but
101. Paul C. Light, Thickening Government: Federal Hierarchy and the
Diffusion of Accountability 105 (1995) [hereinafter 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. There are a high number of Senate-confirmed appointees in the State
Department due to the requirement that all ambassadors be confirmed by the
Senate. The high number in Senate-confirmed appointees in the Department of
Justice is due to the requirement that all U.S. Attorneys, as well as U.S. Marshals,
must be confirmed by the Senate.
40

also deputies who are a mix of other political appointees and career
professionals. The hierarchy of the departments defies overly simple
characterization because of the proliferation in the number of titles
over the last 40 years.104
These members of the administration preside over distinct
sub-department agencies. The 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 different sub-units within larger departments that have
different names such as the Federal Bureau of Investigation, Internal
Revenue Service, or National Highway Traffic Safety Administration.
Like departments, bureaus vary in size and significance. In many
departments the sub-department bureaus have significant autonomy
and authority; many departments are better characterized as holding
companies of a number of distinct agencies rather than one large
agency.106 The 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. The Department of Defense is the outlier with 40 distinct sub-department
agencies, dramatically more than any other department. These agencies include:
the distinct military services (Air Force, Army, Marines, Navy); the joint
commands (e.g., Joint Chiefs of Staff, 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 Staff College, National Defense
University, National War College). There is no uniform standard as to how one
defines 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. The estimates in the text derive from a count of the
number of sub-department agencies listed in the Government Manual, which is
significantly different 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, The 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.
41

by Senate-confirmed political appointees, making bureau chiefs
accountable to congressional committees directly rather than
through higher departmental officials.108 Some, though a minority,
are headed by political appointees who serve for fixed terms of
varying lengths (Table 3). Accompanying fixed terms are explicit
or implicit guarantees that political appointees cannot be removed
except “for cause.” This 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 fixed terms may leave in any case, but fixed 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 The 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 These long
histories facilitate the development of networks of political support
among clients, groups, and congressional committees. Relationships
between bureau officials and Senate and House committees and
staffs 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).
42

Table 3. Bureaus in Executive Departments With Fixed
Terms for Presidentially Appointed Bureau Chiefs
Department

Bureau

Term
Length

Department of
Commerce

Director, Bureau of the Census

5

Department
of Defense

Joint Chiefs of Staff:
Chair
Vice chair
Chief of Staff of the Air Force
Chief of Staff 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, Office 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

√

Board of Veterans Appeals
Under Secretary for Benefits
Under Secretary for Health

6
4
4

√

Department of
Veterans Affairs

For Cause

√

√

√

Note: Agencies in bold are multi-member bodies. Provisions for a fixed term for the Director of the Census Bureau
were included in the Presidential Appointment Efficiency and Streamlining Act of 2011. See Pub. L. No. 112-166,
126 Stat. 1283 (2012). This list excludes bureaus whose personnel are named by the agency head and have fixed
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.

43

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 offices 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 specifies in
great detail the internal organization of an agency and preserves the
integrity of freestanding units being moved into a new department.115
This 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 offices with a particular mission
in all agencies government-wide. A notable example is when
Congress mandated the creation of offices 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, offices, 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, offices, 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 after an agency has been created by executive
action.
119. According to the Council of Inspectors General on Integrity and Efficiency,
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 Efficiency, available
at http://www.ignet.gov/ (accessed July 17, 2012).
44

government-wide mandates can have a similar effect. Congress has
mandated the creation of four “chief officer” positions (financial,
information, human capital, acquisition) in major agencies, and
this can lead to the creation of new and similar offices in different
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 offices across departments and agencies (e.g., FOIA offices,
faith-based initiatives offices, and equal employment opportunity or
civil rights offices).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, office of
legislative affairs, office of public affairs, budget office).122
3.
Variation in the Number of Employees and Political
Appointees
In addition to differences in history, mission, and structure,
executive departments differ 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. The 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. The
Department of Veterans Affairs 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. The number of political appointees does not
correspond to differences in size. Education and Labor have close
to 150 political appointees, while Energy has closer to 110. The
120. Clinton T. Brass, Cong. Research Serv., RL32388, General Management
Laws: Major Themes and Management Policy Options (2004) [hereinafter
Brass, Gen. Mgmt. Laws].
121. See id. (for a compendium of government-wide managerial mandates).
122. Moe Report, supra note 1, at 28.
45

Department of Defense and Department of Homeland Security have
over 200 each, but Interior, Transportation, Treasury, and Veterans
Affairs have fewer than 100 each. As a percentage of agency
employees, Education, HUD, and Labor have the most political
appointees.123 These differences in political appointee numbers
influence 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 influence
on the quality of management inside agencies, as will be discussed
below.124
C.

Independent Agencies

From the first 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,
often 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
fit 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) [hereinafter Lewis,
Presidential Appt].
124. Domonic A. Bearfield, 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)
[hereinafter 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) [hereinafter Tolchin and Tolchin,
Pinstripe Patronage].
125. The 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 efficient 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).
46

departments, and they often would be consolidated into new or
existing executive departments after a period of time. The creation
of the ICC was of a different 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 significant 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 fixed and staggered terms, and provided
that the President could remove commissioners for “inefficiency,
neglect of duty, or malfeasance in office.”127 The act stipulated that
no more than 3 commissioners could be appointed from the same
political party.
After the creation of the ICC, Congress created scores of
both minor and major agencies outside the executive departments,
including multi-member commissions modeled after the ICC,
such as the Federal Reserve (1913) and Federal Trade Commission

126. The 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. The 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). The phrase
“inefficiency, neglect of duty, or malfeasance in office” is generally interpreted
as protecting commissioners from presidential removal except “for cause.” In
the context when it was enacted, however, the Tenure of Office Act was still in
effect, which limited the President’s power of removal by requiring Senate assent
to a presidential removal. This provision can be read as providing the President
greater power than he might otherwise have had in removal.
47

(1914).128 The 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 Office of the President
or executive departments.129
1.

What is an Independent Agency?

To ask this begs the question of what defines agency
independence. There is no general, widely accepted definition of an
independent agency, but this label or definition 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 This
report has implicitly operated with this definition. What defines
agency independence under this definition is the lack of a general
requirement to report to any higher official in the executive branch
such as a department secretary. There is no layer of organization
between the agency and the President. Thus, 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 fit neatly with the functions of existing
departments. In other cases, however, Congress—influenced by the Progressive
belief in science and technical expertise—sought to create court-like agencies of
experts to scientifically manage specific policy areas. Breger and Edles, supra note
9, at 1130-33.
129. David E. Lewis, The Adverse Consequences of the Politics of Agency Design
for Presidential Management in the United States: The Relative Durability of
Insulated Agencies, 34 Brit. J. Pol. Sci. 377 (2003) [hereinafter 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).
48

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 fixed 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 defined 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,” “inefficiency,
neglect of duty, or malfeasance in office,” or similar language) for
agency leaders.133 Independence in this context means independence
from political interference, particularly removal by the President.134
By this definition, the class of independent agencies would include a
multitude of single-headed and multi-member agencies inside and
outside the executive departments. There are at least 23 different
single-headed (i.e., not multi-member boards or commissions) sub132. The statute creating the Federal Energy Regulatory Commission states: “There
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 fixed, five-year term);
26 U.S.C. § 7803(a)(1)(B) (the Commissioner of the Internal Revenue Service
serves for a fixed, five-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 Through Institutional Design, 89 Tex. L. Rev.
16, 31 (2010); Lisa Schultz Bressman and Robert B. Thompson, The 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) [hereinafter 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 officials 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.
49

department bureaus whose administrators or directors are appointed
by the President and serve for a fixed term, from the Director of the
Federal Bureau of Investigation to the Undersecretary of Veterans
Affairs for Benefits (Table 3).135 Discussions of independent agencies,
however, usually revolve around the set of multi-member boards and
commissions patterned after the ICC that have for cause protections
against removal and often 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 classified 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 fixed
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 fixed terms. The table lists each such agency and whether
the agency includes other features scholars generally associate
with independent agencies. The table lists 66 such agencies, some
in executive departments and others created outside the executive
departments. The list includes classic independent regulatory
commissions such as the Federal Communications Commission
and Federal Trade Commission, but also a whole host of other
135. There are other agency officials named by the agency head that also serve for
fixed terms. These include: National Appeals Division (USDA); Regional Marine
Fishery Management Councils (USDA); Corporation for Travel Promotion
(DOC); Office of Navy Reserve (DOD); Office of Marine Forces Reserve (DOD);
Office of Air Force Reserve (DOD); Joint Staff 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); Office of the Chief Actuary (CMS-HHS); Office of
the Coast Guard Reserve (DHS); Foreign Service Grievance Board (STAT); and
Air Traffic 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, The 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)
[hereinafter Devins, Political Will].
50

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
The statutes governing the National Labor Relations Board do not
require party balancing among members.
2.

Independent Administrations

Independent administrations are listed in the left 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 officials being paid at executive level II or III
rather than level I for a department secretary. This can influence
the pay of subordinate officials as well. If the administrator is paid at
executive level III, this implies that lower-level officials will be paid
at executive levels IV and V.
138. The 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 effect legislative policies).
51

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

52

Agency

Outside
Exec
Dept.

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 Thrift 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

Explicit
“For
Cause”
Protections
X
X
X
X

Explicit
Staggering
of Terms

Party
Balancing

Quorum
Rules

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, continued
Agency

Outside
Exec
Dept.

Explicit
“For
Cause”
Protections

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

Explicit
Staggering
of Terms

Party
Balancing

X

X
X

X

X

X
X
X
X
X

X
X
X
X

X
X
X
X
X
X
X
X

Quorum
Rules

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

Note: Multi-member bodies without fixed terms that have quorum rules include the Appalachian
Regional Commission and the Delta Regional Authority. The 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).

53

54

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

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
Office of Government Ethics
Office of Navajo and Hopi
Indian Relocation
Office of Personnel Management
Office of Special Counsel
Office of the Director of
National Intelligence
Office 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
Broadcasting Board of Governors
Corporation for National
Community Service
Corporation for Public Broadcasting
Federal Hospital Insurance
Trust Fund Board
Federal Retirement Thrift
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 Commission
Advisory Commissions
Administrative Conference
of the United States
National 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.

Independent Commissions
(non-regulatory)

Regional Agencies
Appalachian Regional Commission
Delta Regional Authority
Metropolitan Washington
Airport Authority
Mississippi River Commission

Non-profits and Cooperatives
Nat. Consumer Cooperative Bank
National Inst. of Building Sciences
Securities Investor Protection Co.
State Justice Institute
United States Institute of Peace

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

Government Corporations/Other

Note: The heads of agencies in bold are no longer required to be confirmed by the Senate, due to the enactment of the Presidential Appointment Efficiency and Streamlining Act of 2011. See Pub.
L. No. 112-166, 126 Stat. 1283 (2012). By some definitions, the Federal Deposit Insurance Corporation is also a government corporation, in addition to being a regulatory agency. The Department
of Justice’s Office 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).

Independent Commissions (regulatory)

Independent Administrations

Table 5. Overview of Agencies Outside the Executive Departments

The 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). The 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 Office 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 Office of Personnel
Management (four-year term) serve for fixed terms. Table 6 includes
a list of single-headed agencies outside the executive departments
administered by political appointees with fixed terms.
3.

Independent Commissions

The majority of agencies created outside the EOP and
executive departments are multi-member bodies, many with fixed
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 The 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 These
agencies are involved in significant 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
(Employment Cube – Sept. 2011).
141. See generally Humphrey’s Ex’r, 295 U.S. 602.
55

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)

Office of Government Ethics

5

5 U.S.C. app.4 § 401(b)

Office of Navajo and Hopi Indian Relocation

2

25 U.S.C. § 640d-11(b)(2)

Office of Personnel Management

4

5 U.S.C. § 1102(a)

Office of Special Counsel

5

√

5 U.S.C. § 1211(b)

Social Security Administration

6

√

42 U.S.C. § 902(a)(3)

There 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 specific 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 officials who may be tempted
to use this authority for partisan benefit.143 Historically, most
policymakers have agreed in principle to the idea of a unified
executive establishment organized under the President, but justify
the creation of specific 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.
56

Beyond the classic independent regulatory commissions,
Table 5 (and Table 4) also includes many commissions with fixed
terms that neither regulate nor adjudicate. They 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.
The 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. This 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. The Secretary of Veterans Affairs 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. The 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
The presence of independent commissions has been
controversial in the American political system. The Brownlow
Committee charged that “they do violence to the basic theory of the
145. Peter L. Strauss, The 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 fifteen 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.
57

American Constitution that there should be three major branches
of government and only three.”147 The Brownlow Committee also
complained about commission performance, noting, “For purposes
of management, boards and commissions have turned out to be
failures.”148
The 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 officials 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
The number of commissions of different types and the limited
empirical evidence across agencies makes it difficult to generalize
about the effectiveness of independent commissions except to say
that there are tradeoffs 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, The Theory of Economic Regulation, 2 Bell J. Econ. 114
(1971).
151. The 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).
58

some cases and frustrating in others. Their autonomy can be a
means of helping them accomplish democratic purposes as with, for
example, courts. Their 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. The
features of agency design that limit partisan influence are precisely
those that characterize independent commissions. The alternative
to creating these agencies as independent commissions is allowing
executive departments to make these decisions with either no
particular protection from partisan influence or to limit and confine
the authority of executive officials with statutory details or political
oversight. In complex areas of law and policy, however, precise
statutes are difficult to craft because of the complexity. Detailed
statutes can be counterproductive if they limit useful flexibility and
prevent agencies from using expertise they have acquired. In some
cases political oversight can help limit partisan influence in agency
adjudication and rulemaking, but in other cases it is the source of
partisan influence.
Direct accountability to elected officials through
appointments, removals, and appropriations is useful for monitoring
agency behavior and correcting agency missteps. The tradeoff for
Congress and the President is that the price of insulating agencies
from politics is a lack of this type of direct democratic accountability.
The barriers Congress and the President put in place to insulate
agencies from politics also make it harder for elected officials 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 effects.

59

4.
Government Corporations and Government-Sponsored
Enterprises (GSEs)
The remaining class of agencies in Table 5 often shares many
of the structural characteristics of independent commissions such
as multi-member governance and fixed terms, but characterizing
them by these aspects of their design would be insufficient.
Congress and the President have experimented with different 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-profits 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 fleet, building and renting houses, and lending
money. Congress was often uncomfortable with executive officials
letting out contracts, purchasing property, and selling goods without
some form of oversight.152 They reasonably limited executive
flexibility to ensure fidelity to the public interest in these behaviors.
The lost flexibility, however, made operating a business-like venture
difficult. One response Congress developed was to create government
corporations, which are granted both business-like flexibility and
insulation from political influence. Congress struggled with how to
ensure public accountability and preserve management flexibility 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 flexibilities.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 after Congress enacted this statute, it began creating entities
designated specifically 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).
60

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
They 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. The 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). The 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 Benefit 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. There are diverse definitions of
government corporations, some encompassing private instrumentalities created
by Congress or any agency called a corporation. This report uses the narrower
definition in the text. However, agencies themselves and other government
agencies employ different definitions. Froomkin, supra note 153, at 543; U.S.
Gen. Accounting Office, GAO/GDD-96-14, Government Corporations:
Profiles of Existing Government Corporations (1995) [hereinafter GAO,
Existing Gov’t Corps.].
157. Board governance takes different 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 officials. There 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. The 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 Benefit Guaranty
Corporation (Labor); Presidio Trust of San Francisco (Interior); Resolution
Funding Corporation; St. Lawrence Seaway Development Corporation
(Transportation); and Valle Caldera Trust (Interior). Those 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.
61

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 officials.
Fiscally, these entities have tremendous flexibility to raise and
spend funds. This 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 affected 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. The virtue of this feature of government corporations is that it means that
private firms 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 Office found that most government corporations
received some federal appropriations in Fiscal Year 1994. U.S. Gen. Accounting
Office, supra note 156, at 21-22.
62

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-profit organizations created to make credit more
available to certain sectors of the economy.164 They are governed by
a board, the majority of which is selected by private actors, either
investors or borrowers.165 There are currently five GSEs, two of
which are independent agencies outside the executive departments
(Federal Agricultural Mortgage Corporation and Federal National
Mortgage Corporation).166 These entities are not staffed 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.
The appeal of such organizations derives from expectations
about efficiency of operations. Policymakers create organizations
freed from government-wide management laws, budgetary review,
and personnel rules, in the belief that they will more effectively
accomplish federal purposes than a traditionally structured
government agency. Increased flexibility will lead to lower costs,
greater risk taking, and more innovation. For elected officials 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 significant market power of these
organizations without direct accountability to the federal government.
Given the perceived backing of the federal government, these firms
have market advantages that can translate into significant economic
and political power. For example, Fannie Mae and Freddie Mac
163. See id. (finding 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)
[hereinafter Kosar, GSEs].
165. Id. at 8.
166. Kosar, Gov’t Corp., supra note 9.
63

grew dramatically between 1990 and 2008 and are among the biggest
financial institutions in the country.167 They 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 financial markets.168 GSEs spent heavily on congressional
lobbying, and numerous journalistic accounts questioned their
influence in the regulatory regime that contributed to the financial
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-profits 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-profit
organizations to help pursue public purposes. The structure and
connection of these non-profits to the federal government varies.
The non-profits included in Table 5 have boards that contain
presidential appointments that require Senate confirmation. Nonprofit organizations are also used as tools for policy implementation
in many different federal agencies.172 The non-governmental status of
these non-profits helps insulate from political direction. They 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-profit chartered under
167. Kosar, GSEs, supra note 164, at 4.
168. Id.
169. Lisa Lerer, Fannie, Freddie Spent $200 M to Buy Influence, 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.
64

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 firms. Congress created the State Justice Institute
in 1984 as a non-profit to distribute federal grants to improve the
quality of state courts. The Institute is governed by an 11-member
board whose members are nominated by the President and confirmed
by the Senate. The United States Institute of Peace was created the
same year to aid in the goal of resolving international conflict 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. The 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. The Delta Regional
Authority follows a similar form. Members of its board are drawn
from the 8 states of the Delta region. The 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 confirmed by the
Senate.174
173. For details, see www.sipc.org. The board members nominated by the
President originally required Senate confirmation. However, the requirement of
Senate confirmation was removed by the Presidential Appointment Efficiency Act
of 2011. See Pub. L. No. 112-166, 126 Stat. 1283 (2012).
174. Another regional agency is the Mississippi River Commission. The
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.
65

D.

Federal Personnel System

The Constitution provides scant detail about federal
personnel.175 It includes only a few references to officers, consuls,
and ministers. It specifies that principal officers of the government
departments are to be nominated by the President and confirmed
by the Senate, and that the President may request information from
them in writing.176 The Constitution grants to Congress the power
to determine the means of appointing inferior officers.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
defined and augmented the system Congress created through a series
of executive orders and agency rules.
1.

History and Trends

The key statute that defined 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. The Pendleton Act, as it was known, specified that a small
portion of federal civilian jobs (about 10.5%) would be filled on the
basis of merit proven through examinations. The act created for
the first time a divided personnel system. F rom this point forward,
some federal jobs would be filled on the basis of merit and others
filled 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. The Constitution provides that the President “shall nominate, and by and
with the Advice and Consent of the Senate, shall appoint Ambassadors, other
public Ministers and Consuls, Judges of the Supreme Court, and all other Officers
of the United States, whose Appointments are not herein otherwise provided for,
and which shall be established by Law: but the Congress may by Law vest the
Appointment of such inferior Officers, as they think proper, in the President alone,
in the Courts of Law, or in the Heads of Departments.”  U.S. Const. art. II, § 2.
177. The question of what counts as an inferior officer is the subject of legal debate,
but includes the vast majority of federal officials.
178. Pendleton Act, 22 Stat. 403 (1883).
66

or other actors Congress had identified.179 Over the next 70 years,
Congress and the President expanded the coverage and scope of the
system, often 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
These regulations had expanded to include protections against
removal without cause, the right to unionize, prohibitions against
political activity, and regularized pay grades and job definitions
(Figure 1).
a)

Thickening 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 officials and front-line employees.
There has been an increase in both top-level executives and middlelevel managers and supervisors and the ratio of managers to frontline employees has increased. The 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. The 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.
Office 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 after a decade of pressure
in 1912. In the 1920s, Congress added pay equity and retirement provisions to the
civil service system. The 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: The Political Origins of Public-Sector
Collective Bargaining (2006) (unpublished manuscript, on file with Harvard
University). This figure 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, The Silent Revolution in Patronage, 20 Pub. Admin. Rev 28-34 (1960).
67

of staff, 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. They also have principal
deputy under secretaries and principal deputy assistant secretaries.
Each of these new titled officials also frequently have chiefs of staff,
special assistants, advisors, or counselors.

182. Light, Thickening, supra note 101.
68

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

Increasing Pay
Increasing Responsibility
Political Appointees

Career Civil Service 10.5%

1953: End of the Truman Administration

Increasing Pay
Increasing Responsibility

Political
Appointees

Career Civil Service 90%

Additional features:
1.
Protections
against removal
without cause
2.
Right to unionize
3.
Prohibitions
against political
activity
4.
Regularized pay
grades and job
definitions

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 flexibility to use pay to counter private sector
69

options, agency officials 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. The federal government has also increased the use
of grants and contracts to achieve its public policy goals. This means
that more federal work is done by state and local employees who
receive grants and by contractors that are awarded federal contracts.
This 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 efforts
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. They have also added officials that monitor agency
compliance with government-wide management laws and ensure
ethical behavior. The number of employees in offices of inspectors
general and general counsels’ offices has increased. Together, these
efforts 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 effort 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) [hereinafter Lewis, Appt and Personnel].
184. Light, Thickening, supra note 101.
70

the number of officials subject to Senate confirmation to influence
key policymaking positions, but these incidents reflect only a
small fraction of the new positions created since mid-twentieth
century. The benefits 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 staffs 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. The Presidential
Personnel Office plays a role in the selection of all four types of
appointees (PAS, NA, SC, and PA). They do so in cooperation with
top-level agency officials, facilitated by an expansion in White House
liaison positions in the departments and agencies.187
The number of political appointees has increased most after
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 efforts 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 benefit 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, The White House Personnel Office 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 first President to
have a staff person assigned full time to handle personnel issues. In the Kennedy
Administration this number increased to 3 persons. There 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.
71

The 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 offices that control
policy, but management directorates, budget offices, and general
counsels’ offices 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
Office of Management and Budget (budgets, regulatory review),
the Office 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 This is particularly the case if these agencies implement
a policy central to the President’s political agenda.192
The presence of a significant number of political appointees
can influence agencies differently depending upon the types of
persons selected to fill 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. The 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
shifted from career professionals to political appointees.
190. For details of the increase in appointees in the Bureau of the Budget/Office
of Management and Budget, see Hugh Heclo, OMB and the Presidency—The
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: The 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 Office of Personnel Management).
191. There is a significant 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, The 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,
Effective 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.
72

and fidelity 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. The difference in types of
political appointees can be consequential for management.193
Figure 2. Total Number of Federal Government
Appointees and Percentage Appointed, 1960-2008

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 Office of
Personnel Management. (See Note to Table 2 for an explanation of appointee abbreviations.)

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. Bearfield, supra note 124; Mackenzie, supra note 124; Tolchin and
Tolchin, To the Victor, supra note 124; Tolchin and Tolchin, Pinstripe
Patronage, supra note 124.
73

appointees hurts federal management performance.194 Scholars
generally point to the significantly 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 influence
are increasingly taken by political appointees, who often know little
about the agencies or their work. This makes it difficult 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-Specific 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 defined by Title 5 of the U.S. Code, to a more diverse
system defined by multiple distinct personnel systems, specific
to single agencies or classes of employees. The 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: The American
Presidency, March 25, 1977 (American Enterprise Institute).
74

requirements of Title 5.197 The 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), Office of the Comptroller
of the Currency (1989), Office of Thrift 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) (officers 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).
75

Table 7. Agency-Specific Personnel Systems
Allowing Agency-Specific Personnel Authority
Agencies
Entities not
considered
whose
employees agencies or
are excluded establishments
from the
of the
definition of United States
“employee” Governmenta
for the
purposes
of Title 5.

Agencies whose statutes
permit the agency to
use an agency-specific
employment systemb

AMTRAK
CIA
CNCS
CPB
EXIM
FDIC
LSC
MCC
OPIC
SIPC
TVA

ARCd
CFTC
CNCS
CPB
DRA
EAC
FCA
FHFA
FED
IAIA
MKUSF
NCCB

FAMC
NCCB
NIBS
SJI

NCUA
NIGC
ODNI
OFCANGTP
OMB
SEC
SIPC
SSAB
SJI
USPS
USTDA

Restricting Agency
Authority
Agencies w/statutory
limitations on the # of
employees compensated
w/o regard to civil
service provisionsc

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. The table only includes information
about agencies rather than classes of employees, such as Foreign Service Officers. It also excludes subdepartment bureaus such as the Federal Aviation Administration, Internal Revenue Service, or the
Office 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, officers,
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 Office of the Director of National Intelligence may “provide incentives for personnel . . . to serve
on the staff of the Director of National Intelligence, on the staff of the national intelligence centers, on
the staff of the National Counterterrorism Center, and in other positions in support of the intelligence
community management functions of the Director. Incentives may include financial 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-specific authority to take personnel
actions outside the normal personnel process to account for specific agency needs or circumstances,

76

Table 7. Note, continued
some agencies’ flexibility under such provisions is limited by specific statutory provisions. For
example, some statutes place limitations on the number of employees compensated without regard to
civil service provisions. Other limitations relate to specific job descriptions. For example, technical
and professional employees, employees performing a specific service, or certain managerial employees
may be compensated under agency-designated salaries. Often 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 staff 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 The President argued that
a new, more flexible personnel system was necessary for managers
to fulfill the department’s mission and to deliver the results elected
officials and the public demanded. The administration also sought
to transition the Department of Defense to a new National Security
Personnel System.199 These moves were contentious, and in 2008 the
Department of Defense announced that it had scrapped plans for the
new personnel system after 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
flexibility 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, The 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).
77

debate about pay differential 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 difficult for managers to nimbly restructure or reorganize. These
difficulties make more flexible personnel systems attractive to federal
managers.
The move away from a one-size-fits-all personnel system
to a more decentralized system is one response to reasonable
dissatisfaction with the modern personnel system. The proliferation
of distinct personnel systems, however, also makes centralized
human resource management difficult. When employees work
under numerous different personnel systems and rules, it is difficult
to centrally monitor employment practices to ensure fairness, fidelity
to merit system principles, and equal pay for equal work. Some
managers use increased flexibility to more easily accomplish agency
goals. Others use the flexibility 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 Office of Personnel Management. In the
past there were a number of persons with sufficient 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 different systems,
no single person knows enough about federal personnel policy to
fill the same role. The 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:
Results of Studies on Federal Pay Varied Due to Differing Methodologies
(2012).
78

pressures, but it has also led to confusion. Specific congressional
committees and their staffs or private or not-for-profit 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 shift 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 The 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 significant 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) [hereinafter
Light, Ill Executed].
203. Two recent statutes require federal agencies to count the number of contract
employees working for the agency and report such figures to the Office of
Management and Budget (OMB). The 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). The 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. The 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/
house-hearing-debate-size-of-federal-workforce.aspx (accessed July 24, 2012).
205. Light, Ill Executed, supra note 202, at 197; U.S. Gov’t Accountability
79

There 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). The 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 The NPM emphasized
the benefits of competition in order to provide managerial flexibility,
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. This effort 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
The 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 effective and cheaper. Third, both Republican and Democratic
elected officials in the last 20 years have preferred to keep federal
employment small. The hiring of contract employees allows federal
workforce numbers to decrease or remain steady, yet provides the
necessary capacity to carry out federal programs.209
The 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,
offered three sets of recommendations to “Congressional Leadership”) [hereinafter
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 difficult to determine, partly because there are no hard headcounts of
the number of contract employees.
208. This 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.
80

power of the firms 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. The Government Accountability Office has regularly
named contract management as one of its high priority issues, citing
no-bid contracts, understaffed contract management offices, 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. This 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 profit motive rather than public service
ethic.212 This issue captured the public’s attention during the war in
Iraq. Contractors provided essential services including logistics,
transportation, and private security. They trained Iraqi police and
staffed prisons and conducted interrogations in military prisons
such as Abu Ghraib.213
2.

Modern Personnel System

Today, federal civilian jobs are primarily defined by a pay
system and appointment authority. There are four main pay systems.
The Federal Wage System (FWS) covers blue collar work (trade,
craft, skilled, and unskilled laborers).214 The General Schedule
(GS) is the pay system for administrative, technical, clerical, and
professional jobs.215 The Senior Level and Scientific 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. Pfiffner, The 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.
81

positions above the highest GS pay level.216 Senior management
positions are defined in the Executive Schedule (EX) and the Senior
Executive Service (ES) pay schedule.217 The Executive Schedule is
generally reserved for positions requiring presidential nomination
and Senate confirmation, and the ES pay system for managers in
the Senior Executive Service (SES), right below Senate-confirmed
political appointees. Each pay system includes a number of distinct
pay categories. For example, the GS system includes fifteen grades.
The grades are attached to positions based upon the responsibility,
qualifications, or experience required for the position. Each pay
grade also includes sub-categories that provide additional flexibility
for differentiating among employees who perform similar work but
have different qualifications, experience, or performance levels. In
the GS system these are called steps.
The 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 often correlated. Top-level
positions, for example, are filled 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. The former are selected by the
President (directly or indirectly through agency heads), usually
from outside the civil service. The President has broad authority
216. Id. § 3104.
217. See id. §§ 5311-18.
218. This 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 filled by political appointment receive relatively
low salaries if they are positions of a policy or confidential nature, but are staff
positions (e.g., confidential assistants or chauffeurs of top officials). Compare,
e.g., Office 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) [hereinafter 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).
82

to direct the activity of these officials, and in most cases they serve
at the President’s pleasure, with one main exception of fixed terms
described above and elaborated below. The latter work under some
type of merit system, and the ways that the President’s or agency
head’s ability to hire, fire, promote, and demote these persons is
restricted by law and regulation.
a)

Political Appointees in the Federal Executive Establishment

There are four main types of political appointees.219 The
most visible political appointments are those nominated by the
President and confirmed by the Senate. The Constitution requires
that all “ambassadors, other public ministers and consuls, judges
of the Supreme Court, and all other officers of the United States”
be appointed in this manner.220 Among the most important
positions nominated by the President and confirmed 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 confirmation.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, often serving on a part-time basis.222 The Senateconfirmed 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 2225; 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. There are also 18 persons in the legislative branch agencies such as the
Library of Congress, Government Printing Office, Architect of the Capitol, and
Government Accountability Office nominated by the President and confirmed
by the Senate. 2008 Plum Book, supra note 12. This does not include Senateconfirmed appointments to judgeships or multi-lateral agencies such as the United
Nations. In 2012, Congress enacted the Presidential Appointment Efficiency and
Streamlining Act of 2011, which reduced the number of positions requiring Senate
confirmation by 220 positions. See Pub. L. No. 112-166, 126 Stat. 1283 (2012).
Positions that once required Senate confirmation can now be filled by presidential
appointment without Senate confirmation.
222. For example, there are 26 Senate-confirmed 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.
83

general.223 As indicated above, most large sub-department bureaus
are headed by Senate-confirmed political appointees. The 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 confirmation.
Between Senate-confirmed 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.
The Senior Executive Service (SES) is a corps of managers created
by the Civil Service Reform Act of 1978.224 The 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. The Office of Personnel
Management (OPM) allocates a fixed number of SES positions to
each agency. The agency leadership determines which jobs in the
agency will be filled by members of the SES.226 The administration
can fill 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. The Department of Defense is something of an outlier since it has 53 positions
subject to Senate confirmation. Each of the military services has 7-8 Senateconfirmed 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 flexibility in recruiting and retaining qualified
executives).
225. According to data from the Office 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
Office 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. The 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 office
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.
84

Executive Service as a whole or twenty-five percent of the allocated
SES positions in an agency may be filled 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 Staff at the U.S. Agency
for International Development, and a number of deputy assistant
secretaries in the executive departments.
The third category of political appointee is a Schedule C
appointee. Schedule C positions are those with policy-determining
responsibilities or positions that require a confidential relationship
with a top agency official. They are usually lower-level agency
positions and staff 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-confirmed or SES appointees. Most are paid on the GS
scale from GS 15 down, depending upon the qualifications 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 Office of
Public Affairs 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
justification to the Office of Personnel Management for the position, a description
of its confidential and/or policy determining nature, and the pay level. As a
practical matter, new presidents assume office 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. The agency ultimately must approach OPM about
formally converting a temporary transitional appointment to a regular Schedule
C appointment. U.S. Office of Personnel Mgmt., Presidential Transition Guide to
Federal Human Resources Management 12 (2008), available at http://www.chcoc.
gov/Transmittals/Attachments/trans1300.pdf [hereinafter 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).
85

The most common jobs for Schedule C appointees are as special
assistants, confidential assistants, speechwriters, press secretaries,
and special advisors to higher-level political appointees.
The final category of political appointees is comprised of
positions that, like SES appointees and Schedule C appointees, do
not require Senate confirmation. In 2008 there were 314 of these
persons, the bulk of whom served either in the White House Office
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 Efficiency
and Streamlining Act (Pub. L. No. 112-166), which reduced
the number of positions requiring Senate confirmation by 170
positions. The affected positions include a number of managerial
positions such as chief financial officers and assistant secretaries for
administration. The act also affects a number of appointments to
minor boards and commissions. Positions that once required Senate
confirmation can now be filled by presidential appointment without
Senate confirmation.
The vast majority of civilian employees, however, are included
in some form of merit-based civil service system.232 Federal civilian
work is defined by a series of statutes and regulations governing
how persons are to be hired, fired, promoted, and demoted. The
overriding principle is that a person’s treatment in the civil service be
governed by merit. Persons establish their merit through appropriate
background qualifications or competitive examination. Employees
are granted a series of rights, most notably rights to notification 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 define both pay and personnel rules. In general,
while they provide executives more managerial flexibility, 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).
86

The remainder work in a network of regional and field offices, from
military bases to local Social Security offices.

87

88

Traditional Merit
System

Agency-Specific
Personnel

1,500 Positions

Positions vary in pay
from GS 7 to GS 15

Ten percent of the SES
are political appointees

7,000 Positions

Note: Figure excludes PA appointments for work primarily in the White House and on advisory commissions. The 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 confirmation.

Increasing Responsibility

Increasing Pay

Among PAS about 600 are
key policymaking positions

1,150 Positions

Figure 3. Simplified Depiction of Current Federal Civilian Personnel System

Schedule C

Figure 3 provides a simplified graphical representation of the
modern personnel system.233 The triangle reflects 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 confirmation. 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. This is why
SES managers do not extend all the way across the hierarchy in the
figure. In agencies with their own personnel system, managers staff
these positions governed by personnel rules specific to those agencies.
In agencies such as the Department of Defense or the Department of
State, uniformed military personnel or foreign service officers also
fill positions at this level. The vertical bar that extends down into the
personnel system represents Schedule C appointees that take policy
and confidential jobs from the GS 7 level to the GS 15 level.
The 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. The extent of political appointee penetration
influences the “politicization” of different 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. This figure excludes some classes of excepted personnel, including
appointments under other hiring authorities such as Schedules A and B relating
to positions for which standard qualification requirements are impractical
(e.g., chaplains, positions in isolated locations), and for positions where there
are threshold qualification requirements but comparisons among applicants is
impractical (e.g., new agencies, federal work-study, positions reserved for persons
with specific 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).
89

departments tend to have the highest percentage of political
appointees. Among the agencies with the highest percentage of
political appointees are the Office 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
often each have a staff member. The 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 influence since commissions have party-balancing limitations
on presidential nominations.

90

Part IV
The Creation and Design of Federal Agencies
The 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 reconfigured
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 officials respond
by creating bureaus, divisions, or offices to implement these new
assignments. They generally do so with congressional support.
However, in some cases the President or administration officials
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 These decisions are consequential because
agencies created by executive action are significantly more likely
to have features that allow presidents more influence 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. These plans for
reorganizing the government (i.e., creation, reorganization, and elimination
of agencies) would go into effect after 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. This
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.
91

Instances where administration officials have created
agencies Congress would not have created are not the norm. The
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 officials must secure
appropriations for the new agencies after they have been created,
but agencies do not have to be formally authorized or given a line
of their own in the budget.238 They 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 effective form of agency creation when presidents
can secure appropriations but not authorization for an agency.
Appropriations are not subject to Senate filibusters, and funds
for new agencies can be buried in the large appropriations bills.
238.

Specifically,

the

statute

provides,

in

relevant

part:

(a) An agency in existence for more than one year may not use amounts
otherwise available for obligation to pay its expenses without a specific
appropriation or specific 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 specifically 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).
239. The Comptroller General testified in hearings before the House of
Representatives in 1970 that “as a practical matter, if the expenses of the groups
are justified in the budget presentations, this is regarded as being adequate for
this purpose. When they say specific 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
specifically authorized by separate statute.” Lewis, Agency Design, supra note 6,
at 192, n. 8 (quoting the 1970 hearings).
92

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 different countries overseas, and the Democratic majority in
Congress defeated Republican efforts to defund the agency.241
A.

Why a New Agency Rather Than 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 effectively 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. These leanings
influence delegation decisions.243 There 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).
93

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 This fact influences 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 benefits of creating new agencies
that he could staff.
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 specific structural features in exchange for their support. The
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 influence 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,
The Political Views of U.S. Senior Federal Executives, 1970-1992, 57 J. Pol. 838
(1995); Robert Maranto, Still Clashing after All These Years: Ideological Conflict 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: The 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.
94

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 significant changes in the financial regulatory agencies. Political
turnover also leads to agency reorganization and termination.
When new administrations enter office, agency termination and
reorganization are not uncommon. This can reflect a general desire
to economize or restructure government. For example, President
Carter ran for office 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 reshuffle
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. The 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, The 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 Models of Politics (Diana Richards ed., 2000); Herbert Kaufman,
Are Government Organizations Immortal? (1976).
250. Moe Report, supra note 1, at 15.
95

This included the dismantling of the U.S. Customs Service and
Immigration and Naturalization Service into two and three different
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 They succeeded in eliminating the
National Biological Service, the Office of Technology Assessment,
and Interstate Commerce Commission. They 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 efforts to eliminate large departments or agencies have
been difficult, 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 affected
parties and often significant 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, fixed terms, and OMB-bypass
authority. They seem to be able to withstand periods of upheaval
and political turnover more effectively than other agencies. There
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, Officials 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).
96

departments since the median voter on a commission hews more
closely to the middle of the political spectrum. There are also fewer
opportunities to eliminate these agencies since they often bypass
OMB budget review, and they historically were often excluded from
the President’s reorganization authority.254
While agencies themselves as distinct entities are vulnerable,
the programs and laws they implement are significantly 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 Differ?

Part of what distinguishes the agencies in the categories
described above--EOP, executive departments, independent,
government corporations/other--are specific structural features that
determine agency responsiveness to elected officials and agency
powers. The previous section of the report described general
differences across agencies based upon their position in the federal
executive establishment. This section examines more closely the
structural features that differentiate federal agencies, focusing
on features that make agencies more or less responsive to elected
officials. It details features that insulate from the President, Congress,
and both Congress and the President. It also includes aspects of the
agencies themselves that influence 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. This 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).
97

design over time are made separately, subject to the interests and
politics of the moment, not by some grand notion of efficiency or
effectiveness. 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.
The 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. This 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 influence over the agency after 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 influence 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 Their belief was that a central bank
immune from political pressures to inflate or deflate 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 influence 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).
98

Office 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 The 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 influence. 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 influence 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
influence by increasing the number of actors the President (or
Congress) must influence to direct agency policy. The 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 different 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 influence 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 influence agencies in less direct ways such as controlling
office 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.
99

of persons eligible to serve, limit White House influence 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, That of the vacancies created in
the Judge Advocate’s Department by this act, one
such vacancy, not below the rank of Major, shall be
filled by the appointment of a person from civil life,
not less than forty-five nor more than fifty 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 proficient in the Spanish
language and laws.262
According to the New York Times, there was only one person
that fit this description and he lived in the district of James Hay,
the Chairman of the House Committee on Military Affairs, who
also served on the conference committee reconciling House and
Senate differences on the bill.263 The 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 qualifications is effectively a selection
that would infringe on the President’s power to nominate persons to the principal
offices 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
qualifications for office, or reasonable classification for promotion,
and yet that has been often exercised. We see no conflict between
the latter power and that of appointment and removal, provided, of
course, that the qualifications do not so limit selection and so trench
upon executive choice as to be, in effect, legislative designation.
272 U.S. 52, 128 (1926). Congress and the President disagree about when
congressional prescription of qualifications unduly interferes with legitimate
executive choice. These disagreements have been articulated in signing statements
by Presidents George H.W. Bush, Bill Clinton, and George W. Bush. Henry B.
100

Court invalidated a 1974 statute creating the Federal Election
Commission that included a provision specifying that Congress
appoint four members of the Commission.265 The Court stipulated
that the commission’s “administrative functions may … be exercised
only by persons who are ‘Officers of the United States’ ” and
appointed in a manner consistent with their constitutional position
(i.e., nomination by the President and confirmation by the Senate).266
Limitations on who can be nominated or named to appointed
positions come in a variety of forms. Some of the qualification
requirements are quite general. For example, appointments to be
the Archivist of the United States are to be made “without regard
to political affiliations and solely on the basis of professional
qualifications required to perform the duties and responsibilities of
the office of the Archivist.”267 On the other hand, the Director of the
Federal Housing Finance Agency must have extensive understanding
of financial management, capital markets, mortgage securities, and
housing finance and “may not … have served as an executive officer
or director of any regulated entity or entity-affiliated party at any
time during the 3-year period preceding the date of appointment.”268
The Secretary of Defense must be appointed from civilian life and
be at least 7 years removed from active duty.269 The 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 specific 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 officials 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).
101

whose authorizing statutes contain explicit provisions detailing the
background or qualifications of agency heads.
Among the most binding of restrictions on appointments
are cases where the statute either specifies that specific government
officials 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 confirmed by the Senate from lists provided by congressional
leaders.271 The 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)
102

103

DNFSB
DOD
MRC
NASA
SBA

(2)
Civilian

AMTRAK
ARC
CPB
DRA
FED
MWAA
NIBS
NSF
SIPC
TVA

(3)
Geographic

NIGC*

CNCS
IAIA
NCD
NSF

(4)
Demographic

ACUS
ADF
AMTRAK
BBG
CEA
CEQ
CSHIB
CFTC
CPSC
CNCS
CPB
DNFSB
EAC
EXIM
FCA
FDIC
FEC
FHFA
FMSHRC
FED
FRTIB
HSTSF
IMLS
IAIA
IAF
JMMFF
LSC
IRSOB*

MSPB
MCC
MRC
MKUSF
NARA
NCCB
NCD
NCUA
NIBS
NSF
NSEB
NTSB
OSHRC
OSC
ODNI
OPIC
PCLOB
PRC
RRB
SIPC
SBA
SSAB
SJI
TVA
USIP
USITC
USPS
STB*

(5)
Expertise

AMTRAK
ARC
CFTC
CPSC
DNFSB
DOD
DTRS
FCA
FAMC
FCC
FDIC
FHFA
BVA*
NIGC*
STB*

MWAA
NCUA
NIBS
NMB
PRC
RRB
SEC
SIPC
USPS
USTR

(6)
Conflict of Interest

AMTRAK
EAC
FRTIB
HSTSF
JMMFF
MCC
MKUSF
PCLOB
SSAB
USPS

(7)
Congressional
Input

ADF
AMTRAK
BBG
CFTC
CPSC
CNCS
CPB
DNFSB
EEOC
EXIM
FCA
FAMC
FCC
FDIC
FEC
FHITFB
FLRA
FMC
FSMITFB
FTC

FERC*
NIGC*
STB*

HSTSF
IAF
JMMFF
LSC
MSPB
MWAA
MKUSF
NCUA
NMB
NTSB
NRC
PCLOB
PRC
SEC
SSAB
SJI
USIP
USITC
USPS

(8)
Party Balancing

Note: This list includes only executive departments, not the sub-department agencies, except commissions with fixed 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 conflict of interest limitation
on the nomination/selection of members. (7) Statute provides some mechanism for congressional input in the nomination process aside from confirmation. For example, a statute may require that a person be “appointed by the President after 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.

AMTRAK
BBG
CPB
DNFSB
FCA
FCC
FHFA
NRC
TVA
USITC

(1)
Citizen
of the
United
States

Table 8. Statutory Limitations on the Types of Persons Who Can Be Nominated
as Department or Independent Agency Heads by the President

104

Governor of each state that participates

Comptroller of the Currency, Director of CFPB

Commissioner of Social Security; Secretary of the Treasury; MCC
Secretary of Labor; Secretary of Health & Human Services

Commissioner of Social Security; Secretary of Treasury; RRB
Secretary of Labor; Secretary of Health & Human Services

Secretary of Education or his designee

DRA

FDIC

FHITF

FSMITFB

HSTSF

SIPC

MWAA

JMMFF

FAMC

Secretary of State

BBG

BGSEEP

Governor of each participating state

ARC

Board Includes Specific Government Officials

Sec of Treasury selects one & Fed Board selects another.

President selects from lists provided by employees, employers.

President selects some members from list provided by leadership
in Congress

Governors of VA & MD select members as does Mayor of DC.

President selects members of Congress & judges based upon
recommendations of congressional leadership & Chief Justice

Holders of common stock get to select some members

Congressional selection of some members

Other Actors Get to Select Some Board Members

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

105

Three from agencies concerned with inter-American affairs, U.S.
Exec Director or Alt Exec Director of the Inter-Amer Devel Bank

Sec of State; Sec of Treasury; Admin of the U.S. Agency for Int
Development; CEO of the Corp; U.S. Trade Representative

Sec of Interior or designee; Sec of Education or designee

7 PAS members, three from Engineer Corps of the Army, one from
the National Oceanic and Atmospheric Administration

Secretary of Transportation

Admin of USAID, U.S. Trade Rep, one officer of DOL

Sec of State or designate approved by the Senate; Sec of Defense or
designate approved by the Senate; President or VP of the NDU

Sec of Defense; Sec of Education; Sec of Commerce; Sec of State; Dir
of Central Intelligence; Chair of the NEH

Two members are appointed from among officers & employees of
agencies of the U.S. concerned with African affairs

IAF

MCC

MKUSF

MRC

AMTRAK

OPIC

USIP

NSEB

ADF

Board Includes Specific Government Officials

SJI

SSAB

11 PAS members, 6 state judges & one state court admin appointed from
a list submitted by the Conference of Chief Justices

Congressional selection of some members

Other Actors Get to Select Some Board Members

Table 9. Boards or Commissions Whose Membership the President Does Not Fully Select, continued

There are ways Congress and the President can circumvent
such restrictions. Congress has granted waivers in law to
qualifications requirements in cases where it has seen fit to do so.273
In addition, Congress may impose any qualification requirements it
prefers on nominees through the confirmation process, even if it does
not write them into law. Presidents may use recess appointments to
circumvent qualification requirements in cases where a nominee’s
qualifications have been called into question. Finally, few
qualifications requirements are specific enough to limit substantially
the President’s discretion. For example, in the aftermath of Hurricane
Katrina, Congress amended the qualifications requirements for
the FEMA Administrator to read: “The 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 qualified. In
the case of party-balancing requirements, presidents have been able
to find 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 officials (Table 10).275 As discussed above, many statutes
provide agency officials with fixed-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. 109295, §§ 503(c)(2)(A)-(B), 120 Stat. 1355, 1397 (2006) (codified at 6 U.S.C. § 313).
275. In some cases, Congress has vested authority for removal in themselves or
other executive officials. For example, the statute creating the Tennessee Valley
Authority provides that members of the board can be “removed from office at any
time by concurrent resolution of the Senate and House of Representatives.” This
provision has not been challenged, but is of dubious constitutionality. Tennessee
Valley Authority Act of 1933, 48 Stat. 58 (1933) (codified 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).
106

that the President cannot remove the official except “for cause.”276
The act creating the ICC, for example, prohibited removal except
for “inefficiency, neglect of duty, or malfeasance in office.”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 fixes the original terms of board or commission members so that
nominations in future years will be staggered. Often one member
can be nominated for a term ending after one year, another for a
term ending after two years, etc. All subsequent nominees to those
positions can serve full terms.
The issue of fixed 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 officers 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-confirmed appointees. The
specific language communicating “for cause” protection varies. Some statutes
prohibit removal except for “good cause” or “cause.” Others prohibit removal
except for cases of “inefficiency, neglect of duty, or malfeasance in office.” 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. The Tenure of Office Act of 1867 prohibited the President from removing
Senate-confirmed officials without Senate approval. See id., March 2, 1867, c. 154,
14 Stat. 431 (1867). This provision allowed the President removal power without
Senate involvement. Seidman, supra note 6, at 184.
278. The head of the Government Accountability Office, an agency in the legislative
branch, serves a term of 15 years. 31 U.S.C. § 703.
279. 130 S. Ct. 3138 (2010).
107

108

FLRA
FMC
NLRB
NTSB
NRC
OGE
OSC
RRB
SEC
TVA
Six Years
ADF
BGSEEP
CPB
FCA
FDIC
FEC
FMSHRC
HSTSF
IAIA
IAF
JMMFF
MWAA
MKUSF
NCUA
NSF
OSHRC
PCLOB
PRC
SSA
SSAB
Seven Years
CPSC
FTC
MSPB
USPS
Nine+ Years
FED (14)
MRC (9)
USITC (9)

ADF
BGSEEP
BBG
CFTC
CPSC
DNFSB
EAC
EXIM
FCA
FEC
FMC
FMSHRC
FED
FRTIB
FTC
HSTSF
IAIA
IAF
JMMFF
MWAA
MKUSF
NCD
NCUA
NIBS
NLRB
NRC
OSHRC
OPIC
PRC
SEC
SIPC
SSAB
SJI
USIP
USITC
USPS
CHSIB
CPSC
CPB
FHFA
FLRA
FMC
FMSHRC
FED
FTC
IAIA
LSC
MSPB
MWAA
NCCB
NLRB
NMB
NTSB
NRC
OSHRC
OSC
PRC
SSA
SJI
USIP
USPS

(3)
Explicit “For Cause” Protections (FC)
ACUS**
ADF
AMTRAK
BGSEEP
BBG
CFTC
CPSC
CNCS
CPB
DNFSB
EAC
EEOC
EXIM
FCA
FAMC
FCC
FDIC**
FEC
FHITFB
FHFA
FLRA
FMC
FED
FRTIB
FSMITFB
FTC
IAIA
IAF

JMMFF
LSC
MSPB
MKUSF
NCCB
NCD
NCUA
NEA
NEH
NIBS
NMB
NTSB
ONHIR
OSC
OPIC
PCLOB
PRC
RRB
SEC
SIPC
SSA
SJI
TVA
USIP
USITC
USPS

(4)
Provisions for Continuation of Service (C)

The 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 after 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 after the expiration of their term.

Note: (1) Statute specifies 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 office,” “inefficiency,” or similar language. (4) If an agency member, commissioner, or agency head has a fixed 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 qualified or some other point should no replacement be found. *The 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.

One Year
FAMC
Two Years
ONHIR
Three Years
ACUS*
BBG
LSC
MCC
NCCB
NCD
NIBS
NMB
OPIC
SIPC
SJI
Four Years
EAC
EXIM
FHITFB
FRTIB
FSMITFB
IMLS
NEA
NEH
NSEB
OPM
USIP
Five Years
AMTRAK
CHSIB
CFTC
CNCS
DNFSB
EEOC
FCC
FHFA

(2)
Explicit Provisions for Staggered Terms (ST)

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

(1)
Fixed Term (FT)

109

FSLRB

CBCA

OCA

IG

FLRA

GSA

SSA

USPS

“The 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)

“The Chief Actuary may be removed only for cause.” 42 U. S. C. § 902(c)(1)

U. S. C. § 438(b)(2)

a

“Members of the Civilian Board shall be subject to removal in the same manner as administrative law judges” 41

“The 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)

Statutory Provision

USCCRc

DOED/PBOb
FERC (DOE)
FLRA
FMC
FMSHRC
FTC
MSPB
NLRB
NMB
NRC
NTSB
OSC
PRC
SSA
STB (DOT)

BVA (DVA)
CSHIB
CPSC

“For Cause” and Career
SES Employees

CFTC
USDA
DOED
DOE
FERC
HHS
DHS
HUD
DOI
DOJ
DOL
DOT
EPA
FCC
FLRA
FMC
FMSHRC
FTC
NLRB
OSHRC
SEC
SSA
USITC
USPS

“For Cause” and
Administrative Law Judges

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).

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 confirmation.

c

b

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.

a

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), Office of the Chief Actuary (OCA), and Inspector General (IG).

Second
Level

Agency

Traditional Double “For Cause”

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

110

FERC*
STB*
USPC*

ADF
DNFSB
EEOC
CEA
CEQ
FCA
FAMC
FCC
FLRA
FMC
FMSHRC
FRTIB
FTC
IAF
MRC
NCD
NLRB
NRC
OSHRC
OPIC
PRC
SIPC
SSAB
USITC

(2)
Chair selected by President
without Senate confirmation

IRSOB*

TVA
USIP
USPS

**

NMB
NSF
SJI

**

EAC!
FEC
IAIA
JMMFF
LSC
MWAA
NCCB
NIBS

**

AMTRAK
ARC
CNCS
CPB
DRA

(3)
Chair elected by
members

FHITFB
FSMITFB
MCC
NSEB

(4)
Chair designated as official
who serves in another position
in the administration

Elected
CPB
IAIA
LSC
NCCB
NMB
NSF
SJI
USIP

PA Chair
SSAB
USITC

BVA*
FCSC*
NIGC*

PAS Chair
ACUS
EXIM
FDIC
FED
NTSB
USITC

(5)
Fixed term for chair

BVA*
NIGC*

CSHIB

(6)
For cause protections
for chair

Retention

CFTC
EXIM
FAMC
NRC
PRC
SSAB

(7)
Statute explicitly states
that chair serves at
pleasure of President

Note: *Agency is a commission inside an executive department rather than a commission outside the executive departments. **Agency statute uses term other than “elect.” These agencies are: National Mediation Board
(“designate”); Tennessee Valley Authority (“select”); and U.S. Election Assistance Commission (“select”). (1) Statute specifies that the President, with advice and consent of Senate, appoints the agency head and the agency head
is not an official from another agency. The Appalachian Regional Commission and Delta Regional Authority have co-chairs, one appointed by the President and confirmed by the Senate and one elected by the state members of
the board. (2) Statute specifies 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 specifies that the head of the agency is an official 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 specifies a term of office for the chair of the agency. (6) Statute specifies that the chair may only be removed for inefficiency, neglect of duty, or
malfeasance in office. (7) Statute specifies 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.

BVA*
FCSC*
NIGC*

ACUS
ARC
BBG
CHSIB
CFTC
DRA
EXIM
FDIC
FED
MSPB
NCUA
NTSB
PCLOB
RRB

(1)
Chair selected by
President with
Senate confirmation

Selection

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

Statutes specify different rules regarding the selection of
commission chairs and whether fixed term political appointees may
stay in their positions after their term has expired. In some agencies,
the President is empowered to select the chair, either with or without
Senate confirmation. In other agencies, the chair is designated by
the board itself (often by election) or designated by statute to be a
specific government official. 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 fixed 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 different agencies whose statutes have different rules for chair
selection and removal.
In addition to specifying fixed 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 qualified.281   For example, the statute governing the Social
Security Administration states: “In any case in which a successor
does not take office at the end of a Commissioner’s term of office,
such Commissioner may continue in office until the entry upon office
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 filled, either by giving discretion to
the agency head or identifying a specific official to fill 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.
This suggests that chairs are included in continuation provisions. There 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 definite 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 confirmed and taken the oath of office,
except that they shall not continue to serve beyond the expiration of the next
session of Congress subsequent to the expiration of said fixed term of office.” 47
U.S.C. § 154(c) (2012).
111

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. The Budget and Accounting Act of 1921 first
gave the President responsibility for collecting agency estimates and
formulating a unified 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 Offices: Delays in Staffing Top Agency Positions,
82 S. Cal. L. Rev. 913 (2008). The President has the statutory authority to designate
an official to fill vacancies in the Department of Veterans Affairs, General Services
Administration, and Social Security Administration. The agencies whose statutes
provide explicit details about the official 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; Office of Personnel Management; Office 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).
112

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 costbenefit analysis and submit rules to OMB for review.287 While this
executive order has been amended to limit this requirement to
economically significant 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 five changes to the
regulatory review process. 72 Fed. Reg. 2763 (Jan. 23, 2007). These changes
imposed several requirements on agencies (i.e., identifying a market failure or
problem that justifies the regulation, identifying an appointee who will serve
as regulatory policy officer in the agency to control rulemaking, and providing
estimates of the cumulative costs and benefits 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, Office 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 significant residual authority to instruct agencies to fill in
details omitted in statutes. This 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).
113

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
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
different estimates
than the agency

(3)
Agency exempted from
submitting proposed
and final rules to OIRA

(4)
Statute exempts agency
from submitting its
communications to
OMB for coordination
& clearance prior to
transmittal to Congress

(5)
The agency asserts
“informal” legislative
bypass authority without
any explicit statutory
authority even though
OMB Circular A-19
covers the agency

SSA
USITC

CSHIB
CFTC
CPSC
DNFCB
FAMC
FEC
FED
FRTIB

CFTC
CPSC
FCC
FDIC
FHFA
FMC
FED

CSHIB
CFTC
CPSC
FCA
FDIC
FEC
FHFA
FED
FRTIB

AMTRAK
CPB
FCC
FMC
FTC

USPS

LSC
MSPB
NTSB
RRB
SEC
SJI
USIP

FTC
MSHRC
NLRB
NRC
OSHRC
PRC
SEC
USITC

MSPB
NCUA
NTSB
OSC
RRB
SEC
SBA/OA*
USITC

LSC
NRC
SJI
TVA
USIP

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 Office 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 file 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, Office 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) The agency is exempted from submitting all regulatory actions to the administrator of the Office of Information and Regulatory
Affairs. 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, Office of Financial Research (DTRS), and
Office 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. The Office of Advocacy within the SBA is exempted, but other parts of the agency are
not. (5) The 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 file with author and the Administrative Conference); Office of Mgmt
& Budget, Circular No. A-11 (2011); Memorandum from Jim Jukes, Assistant Director for Legislative Reference, Office 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. These 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. These include the Federal Aviation Administration (Transportation), Surface Transportation Board (Transportation), Office of the
Comptroller of the Currency (Treasury), Office of Thrift Supervision (Treasury), Federal Energy Regulatory Commission (Energy), Office of Federal
Housing Enterprise Oversight (Housing and Urban Development), and Office of the National Taxpayer Advocate (Treasury).

114

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. The relevant statute
stipulates that: “Except as otherwise authorized by law, the conduct
of litigation in which the United States, an agency, or officer thereof is
a party, or is interested, and securing evidence therefore, is reserved
to officers 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
different 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, The Uneasy Case for Department of
Justice Control of Federal Litigation, 5 J. Const. L. 558 (2003).
291. 28 U.S.C. § 516 (2012).
292. The 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 officer of the Department of Justice to do so.”
28 U.S.C. § 518(a) (2012).
293. The 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).
115

all legal proceedings.”294 The Solicitor General generally conducts all
litigation before the Supreme Court, even representing independent
agencies. The 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. The extent of control over specific 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 influence 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 influence on the bureaucracy through its
power to create, reorganize, and eliminate programs and agencies.
Congress determines how inferior officers will be appointed and the
Senate confirms 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
116

Congress the power to give and withhold appropriations to set
national priorities and compel agency action.298 Congress has other
means of agency influence as well, including hearings and oversight.
The 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 influence 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 financial 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 These limitations
take the form of “none of the funds appropriated under this act
may be used to pay for action X,” and provide an effective means of
appointment of such inferior officers, 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 Influence over Bur.
eaucratic Policy Decisions, 104 Am. Pol. Sci. Rev. 766 (Nov. 2010); Neal E. Devins,
Regulation of Government Agencies Through Limitation Riders, 36 Duke L.J. 456
(1987).
117

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 influence over agencies by allowing agencies to collect and
spend revenues outside the appropriations process. This 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. These exceptions
come in a variety of forms that are grouped into distinct categories.
Many agencies have been authorized to receive gifts and donations.
Some have been given the ability to charge reasonable fees and use
the revenue for specific purposes. A smaller set of agencies may
become involved in real estate transactions or banking activities.
The 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. This
list is comprised mainly of financial 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 specifies 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.
118

Table 14. Agency Statutes Providing Sources
of Funding Other than Appropriations
(1)
Gifts and
Donations

(2)
Reasonable
Admin. Fees

(3)
(4)
Deal in
Invest or
Property (lease, Reinvest in
purchase,
Property
hold, etc.)

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

(5)
Authorizes
Working
Capital Fund

(6)
(7)
(8)
Business
Fees & charges
Other outside
or banking cover substantial funding authorized
activities
portion of
authorized operating expenses

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 fixed terms inside an executive department, rather than a commission outside
the executive departments. Federal statutes include a number of different types of provisions that allow agencies freedom from the
requirement that their funding come directly from appropriations. This 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 gifts, 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 fiscal 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.

119

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: Identification of agencies and bureaus in this table based on 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). Other bureaus not listed may have some
other sources of funding, but still require appropriations.

b)

Agency Reporting Relationships

The relationship between Congress and federal agencies is
influenced importantly by the committee and reporting relationships
of each agency. The number of committees and subcommittees
actively involved in confirming 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 officials
to seek approval of committees prior to taking action.304 The amount
of oversight also varies depending upon the character of the work
of the agency. Some agencies implement laws in a specific limited
304. For details, see Louis Fisher, Cong. Research Serv., RL33151, Committee
Controls of Agency Decisions (Nov. 16, 2005).
120

policy area, and the work of other agencies involves numerous policy
areas.
The 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 different
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 staff.”305
At the time of the report there were 108 different committees and
subcommittees responsible for overseeing the Department of
Homeland Security.306   The concern with too many committees is
that agencies are pulled in different directions, and any efforts to
direct or reform DHS must be agreed upon by scores of committees.
Empirical research on the question suggests that Congress has less
influence over agencies overseen by a greater number of committees
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 specific 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 file 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 confirming nominees
to federal agencies, see Appendix B.
121

and help Congress monitor the agency. This can come in the form of
specific 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 The Chief Financial Officers Act of 1990 was intended
to improve the financial management practices of federal entities.311
It required the designation of a chief financial officer (CFO) with
appropriate managerial and financial management background
in all large agencies.312 The statute specified that there shall be a
CFO appointed by the President and confirmed by the Senate in
larger agencies specified in statute,313 although the requirement
for CFO confirmation has been removed by the Presidential
Appointment Efficiency and Streamlining Act of 2011. The 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 Officers 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).
122

also mandates that a CFO be installed in other agencies not in the
first 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
The 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 officer (CIO) in federal agencies. The CIO
would be responsible for (1) providing advice to ensure that each
agency acquires information technology and manages information
resources effectively; (2) developing, maintaining and facilitating
an information technology architecture for each agency; and (3)
promoting effective and efficient design and operation of all major
information resources management processes for each agency.315
The statute’s information technology requirements apply broadly
to “executive agencies,” as defined 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
The act and its amendments mandated the creation of Offices 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. The statute expressly applies to those agencies requiring CFOs under the
Chief Financial Officers Act of 1990. See 40 U.S.C. § 1425 (specifying duties and
qualifications 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 Officers and are part of the Small Agency CIO Council.
317. There 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 Office, and National Security Agency. See id. app. 3 § 8G(d).
318. Each IG is nominated by the President and confirmed by the Senate. IGs
123

and confirmed by the Senate solely on the basis of “integrity and
demonstrated ability in accounting, auditing, financial analysis, law,
management analysis, public administration, or investigations.”319
An IG may be removed from office 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. The act adds a
layer of accountability, as each IG must prepare semiannual reports
summarizing the activities of his office. These 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 specifically creates an Office 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 Offices 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 office that conducts annual
agency audits and report the results and any other investigative
activities to both chambers of Congress and the director of OMB.
The last list published in the Federal Register was in 2009.321

may be removed from office 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 Office 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 defining “designated Federal
entity” to mean 36 specified agencies).
124

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 Specifically, 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. The Sunshine Act applies to multi-member bodies that have more than half
of their members nominated by the President and confirmed by the Senate. See 5
U.S.C. § 552b(a) (2012).
125

Table 16. Government-Wide Position Mandates (CFO, CIO, IG)
Chief Financial
Officer

Chief Information Officer

Inspector General

The Chief Financial
Officers Act of 1990
sought to enhance the
financial management
practices of the
federal government.
One of the Act’s
stated purposes
was to designate
a Chief Financial
Officer (CFO) in
each executive
department and major
executive agency.

The Clinger-Cohen
Act, designed to reform
information technology
management in the federal
government, established
agency Chief Information
Officers responsible
(40 U.S.C. § 11315).

The Inspector General Act of 1978 established Offices
of Inspector General in various agencies across the
executive branch. These offices 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).

The statute specifies
that there shall be a
CFO appointed by
the President and
confirmed by the
Senate in the agencies
in the first column (31
U.S.C. § 901(b)(1)). The
statute specifies 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)).

The statute’s CIO
requirements (44 U.S.C.
§ 3506(a)) apply broadly
to “agencies” as defined in
44 U.S.C. § 3502(1): any
executive department,
military department,
Government corporation,
Government controlled
corporation, or other
establishment in the
executive branch of the
Government (including
EOP, but with certain
other exclusions), or any
independent regulatory
agency. At a minimum,
the statute lists specific
duties and qualifications for
those agencies that are also
listed as requiring CFOs
in the Chief Financial
Officers Act of 1990.a

The agency
is statutorily
defined as an
“establishment”
under the
Inspectors
General Act and
has an Office
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.

The agency is
statutorily defined
as a “designated
federal entity”
and has an Office
of Inspector
General that is
headed by an
Inspector General
who is appointed
by the head of
the agency.

The agency
is defined by
the Office of
Management and
Budget as a “federal
entity” and has
an audit office
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

USDA
DOC
DOD
DOED
DOE
HHS
DHS
HUD
DOI
DOJ
DOL
STAT
DOT
DTRS
DVA
EPA
NASA

CIA
CNCS
COM
DHS
DOD
DOE
DOED
DOJ
DOL
DOT
DTRS
DVA
EPA
EXIM
FDIC
FHFA

AMTRAK
ARC
BBG
CFTC
CPSC
CPB
EAC
EEOC
FCA
FCC
FEC
FED
FLRA
FMC

ACUS
ADF
CSHIB
DNFSB
DRA
FMCS
FMSHRC
FRTIB
HSTSF
IMLS
IAIA
IAF
JMMFF
MCC

USAID
GSA
NSF
NRC
OPM
SBA
SSA

USAID
GSA
NSF
NRC
OPM
SBA
SSA

GSA
HHS
HUD
INT
NASA
NRC
ODNI
OPM
RRB
SBA
SSA
STAT
TVA
USAID
USDA

FTC
LSC
NARA
NCUA
NEA
NEH
NLRB
NSF
PCRP
PRC
SEC
USITC
USPS

MKUSF
MSPB
NCD
NMB
NTSB
OFCA
ONHIR
OGE
OPIC
OSC
OSHRC
SSS
USIP

a
There are 90 other agencies that also have Chief Information Officers and are part of the Small Agency
CIO Council. See discussion supra note 316.

126

Table 17. Agencies Subject to the Sunshine Act
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

Note: The 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).

a)

Internal Agency Decisions and Processes

Agencies’ responsiveness can be influenced 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 officials may want quick and decisive action, an agency
may not be able to do what elected officials 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 The Chief Executive Officer of the Corporation for
National Community Service cannot issue regulations establishing a
selection and compensation system for the Corporation’s employees
without first obtaining the approval of the Director of the Office of
Personnel Management.326 Some statutes still require legislative
approval despite the Supreme Court’s invalidation of this tool in
323. The 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).
127

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

Table 18. Agencies With Authorizing Statutes That Require Prior
327. 462 U.S. at 956-59.
328. 7 U.S.C. § 16a(a) (2012).
128

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)
Office of the Director of National Intelligence*
Office 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: This list includes executive departments, but not the sub-department agencies. *Outside approval
is required by Congress in the form of a legislative veto.

The 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
influence 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. The first 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 The final
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).
129

Table 19. Agencies with Adjudicatory Authority
Main Authorizing
Statute Includes
Reference to
Adjudicatory
Portion of APA (5
U.S.C. § 554)b

Agency Employs
Administrative
Law Judges
(Breyer)d

X

X

X

Agency
ARC

X

CFTC

X

CHSIB

X

CPSC

X

X

USDA

X

X

X

DNFSB

X

DRA

X
X

X

DOC
DOED
DOE

X
X

X

HHS
DHS

X

HUD

X

DOI
DOJ

X

DOL
DOT

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

DVA

X

EPA
EEOC

X
X

FERC

X

FCA

130

Agency Employs
Administrative
Law Judges
(Association of
Administrative
Law Judges)c

Main Authorizing
Statute Includes
Provisions
Authorizing
Adjudicationa

X

X

X

X

X

X

FCC

X

X

FDIC

X

X

X

X

FEC

X

FED

X

FHFA

X

FLRA
FMC

X

X

X

X

X

FMSHRC

X

X

X

X
X

X

FTC

X

X

MSPB

X

X

NCD

X

NCUA

X

NLRB

X

X

X

Table 19. Agencies with Adjudicatory Authority, continued

Agency

Main Authorizing
Statute Includes
Reference to
Adjudicatory
Portion of APA (5
U.S.C. § 554)b

Main Authorizing
Statute Includes
Provisions
Authorizing
Adjudicationa

NSF

Agency Employs
Administrative
Law Judges
(Association of
Administrative
Law Judges)c

Agency Employs
Administrative
Law Judges
(Breyer)d

X

NMB

X

NTSB

X

NRC

X

OMB

X
X

X

X

OSHRC

X

PRC

X

SEC
SBA

X

X

X

X

X

X

X

X

SSA

X

X

X

USEAC

X

USITC

X

X

X

USPS

X

X

X

Note: This table does not list specific bureaus, offices, or divisions within departments or agencies authorized to adjudicate or employing
administrative law judges. This information is available with statutory citation in the dataset accompanying this report. See Appendix of
statutory provisions (on file 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. This 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 Office 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: The Board, or upon the authority of the Board, any member thereof, any
administrative law judge employed by or assigned to the Board, or any officer 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: The 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 official inspections. The 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).
The 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). This 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.

b

c
The 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
The 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 Office of Personnel Management to compile Appendix C. Id.

131

Table 20. Details of Federal Agencies’ Rulemaking Activities
Agency has promulgated
an economically significant
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: This table does not list specific bureaus, offices, or divisions within departments or agencies. Data on economically significant
rules does not include those from independent regulatory commissions. See Office of Information and Regulatory Affairs, Office
of Management and Budget, Historical Reports, available at http://www.reginfo.gov/public/do/eoHistoricReport (information on
economically significant rules); Federal Register, available at https://www.federalregister.gov (information on both formal and informal
rulemaking). Among the larger departments, the specific 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 Office of Federal Contract Compliance (DOL).

132

Most agency authorizing statutes also include language
that explicitly authorizes the agency to promulgate rules and/or
regulations. Those 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 different forms. Specifically, it lists all
agencies that have promulgated an economically significant 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 different agencies
that determine their responsiveness to the President, Congress, and
different groups. Some features of agency design are specifically
chosen to limit political influence. Other features of agency design are
chosen to enhance responsiveness. Beyond these features, however,
are a host of agency-specific factors that influence responsiveness
but are hard to characterize generally. Agency choices are influenced
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 influence by their clients or pressure
groups. The longer the history of autonomy, the stronger the culture
and more difficult readjustment can be if political actors seek to
direct agencies to do something quite different from what they have
done in the past.

133

Conclusion
The 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. The
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 first 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. These
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 officials, 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. The 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 Office of Management and Budget, Office
of Personnel Management, and General Services Administration.
The 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. There is very little doubt that
these political appointees have an influence on the policy outputs of
federal agencies.

134

The 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, influence U.S. attorney
prosecution decisions), they also provide presidents access to
the distributional resources of government. Political appointees
influence 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 influences 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. The size of the federal workforce has fluctuated between
2 and 3 million employees for some time. However, these numbers
mask significant 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 flexibility.
Yet such changes have made the federal personnel system harder to
monitor and control.
330. John Hudak, The Politics of Federal Grants: Presidential Influence over the
Distribution of Federal Funds (Feb. 29, 2012) (unpublished Ph.D. dissertation,
Vanderbilt University) (on file with author).
331. Lewis, Presidential Appt., supra note 123; David E. Lewis and Nick Gallo,
The Consequences of Presidential Patronage for Agency Performance, 22 J. Pub.
Admin. Res. & Theory 219 (2012).
135

The stability in numbers of federal employees masks an
expansion in the number of contract employees. The 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. The reliance on
contract employees provides managers flexibility, the hope of lower
costs, and the ability to buy capacity easily. However, the reliance
on contract employees influences the public sector labor market and
the willingness of civil servants to invest in agency-specific expertise.
Federal employees are less likely to make careers in government
service, often leaving government service for private contracting
firms. The proliferation of federal contractors also raises issues of
monitoring and control. Accurate counts of contract employees do
not exist, and the Government Accountability Office has repeatedly
identified federal contract management as a problem area for federal
management.
The federal personnel system is in a state of profound
transition. Beyond the expansions of agency-specific 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 reflect dissatisfaction
with the federal personnel system. Difficulties 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 fixed terms or
indirectly by creating agencies as private non-governmental entities.
The 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.
136

cases even calling into question whether these instrumentalities
are even agencies at all. These new and innovative designs hold
out the promise of effectiveness and efficiency. The ability of new
federal entities to avoid government-wide managerial mandates and
rules creates managerial flexibility that can be employed to better
accomplish government objectives.
With greater flexibility and autonomy, however, necessarily
comes a lack of political accountability. There are cases where elected
officials see the wisdom in limiting their own influence over agency
activities. These choices, however, come at a cost when autonomous
government actors make poor decisions or become embroiled in
scandal. The proliferation of exceptions has significant 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 difficult. There 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 difficult. The lack of one unified source
to describe the executive establishment and the differences among
existing lists is evidence in itself of the difficulty in control and
oversight. The purpose of this work is, in large measure, to provide
the background necessary for the oversight process to be improved
and reformed.

137

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 Affairs

DVA

Environmental Protection Agency

EPA

Equal Employment Opportunity Commission

EEOC

Export-Import Bank of the U.S.

EXIM

Farm Credit Administration

FCA

A- 1

Appendix A-1: List of Agencies – By
Agency Name, Continued
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 Thrift 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

A- 2

Appendix A-1: List of Agencies – By
Agency Name, Continued
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

Office of Administration

EOP

Office of the Director of National Intelligence

ODNI

Office of the Federal Coordinator for Alaska
Natural Gas Transportation Projects

OFCANGTP

Office of Government Ethics

OGE

Office of Management & Budget

OMB

Office of National Drug Control Policy

ONDCP

Office of Navajo & Hopi Indian Relocation

ONHIR

Office of Personnel Management

OPM

Office of Science & Technology Policy

OSTP

Office of Special Counsel

OSC

Office 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

A- 3

Appendix A-1: List of Agencies – By
Agency Name, Continued
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 Office

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

A- 4

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 Affairs

EAC

U.S. Election Assistance Commission

EEOC

Equal Employment Opportunity Commission

EOP

Office of Administration

EPA

Environmental Protection Agency

EXIM

Export-Import Bank of the U.S.

A- 5

Appendix A-2: List of Agencies – By
Abbreviation, Continued
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 Thrift 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

A- 6

Appendix A-2: List of Agencies – By
Abbreviation, Continued
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

Office of the Director of National Intelligence

OFCANGTP

Office of the Federal Coordinator for Alaska Natural
Gas Transportation Projects

OGE

Office of Government Ethics

OMB

Office of Management & Budget

ONDCP

Office of National Drug Control Policy

ONHIR

Office of Navajo & Hopi Indian Relocation

OPIC

Overseas Private Investment Corporation

OPM

Office of Personnel Management

OSC

Office of Special Counsel

OSHRC

Occupational Safety & Health Review Commission

OSTP

Office 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

A- 7

Appendix A-2: List of Agencies – By
Abbreviation, Continued
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

Office of the U.S. Trade Representative

WHO

White House Office

A- 8

Appendix B. Senate Committees
Confirming Agency Nominees

A- 9

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 Affairs

CPB

1

Commerce, Science, & Transportation

DNFSB

1

Armed Services

DRA

1

Environment & Public Works

USDA

2

Agriculture, Nutrition, & Forestry;
Homeland Security & Governmental Affairs

DOC

6

Banking, Housing, & Urban
Affairs; Commerce, Science, &
Transportation; Environ & Public
Works; Finance; Homeland Security
& Governmental Affairs; Judiciary

DOD

3

Armed Services; Environment & Public
Works; Homeland Security & Govt. Affairs

DOED

2

Health, Education, Labor, & Pensions;
Homeland Security & Govt. Affairs

DOE

3

Armed Services; Energy &
Natural Resources; Homeland
Security & Govt. Affairs

HHS

4

Finance; Health, Education, Labor,
& Pensions; Homeland Security &
Govt. Affairs; Indian Affairs

Appendix B. Senate Committees Confirming
Agency Nominees, Continued
DHS

4

Commerce, Science, & Transport;
Finance; Homeland Security &
Govt. Affairs; Judiciary

HUD

2

Banking, Housing, & Urban Affairs;
Homeland Security & Govt. Affairs

DOJ

3

Judiciary; Homeland Security &
Governmental Affairs; Intelligence

DOL

3

Health, Education, Labor, & Pensions;
Homeland Security & Governmental
Affairs; Veterans Affairs

STAT

3

Foreign Relations; Homeland Security
& Governmental Affairs; Intelligence

DOI

4

Energy & Natural Resources; Environment
& Public Works; Homeland Security &
Governmental Affairs; Indian Affairs

DOT

4

Banking, Housing, Urban Affairs;
Commerce, Science, & Transportation;
Environment & Public Works;
Homeland Security & Govt. Affairs

DTRS

4

Banking, Housing, & Urban Affairs;
Finance; Homeland Security &
Governmental Affairs; Intelligence

DVA

2

Veterans Affairs; Homeland
Security & Govt. Affairs

EAC

1

Rules & Administration

EPA

2

Environment & Public Works;
Homeland Security & Govt. Affairs

EEOC

1

Health, Education, Labor, & Pensions

EXIM

2

Banking, Housing, & Urban Affairs;
Homeland Security & Govt. Affairs

FCA

1

Agriculture, Nutrition, & Forestry

FAMC

1

Agriculture, Nutrition, & Forestry

FCC

1

Commerce, Science, & Transportation

FDIC

2

Banking, Housing, & Urban Affairs;
Homeland Security & Govt. Affairs

FEC

1

Rules & Administration

A - 10

Appendix B. Senate Committees Confirming
Agency Nominees, Continued
FHITFB

1

Finance

FHFA

1

Banking, Housing, & Urban Affairs

FLRA

1

Homeland Security & Governmental Affairs

FMC

1

Commerce, Science, & Transportation

FMCS

1

Health, Education, Labor, & Pensions

FMSHRC

1

Health, Education, Labor, & Pensions

FED

1

Banking, Housing, & Urban Affairs

FRTIB

1

Homeland Security & Governmental Affairs

FSMITFB

1

Finance

FTC

1

Commerce, Science, & Transportation

GSA

1

Homeland Security & Governmental Affairs

HSTSF

1

Health, Education, Labor, & Pensions

IMLS

1

Health, Education, Labor, & Pensions

IAIA

1

Indian Affairs

IAF

1

Foreign Relations

JMMFF

1

Health, Education, Labor, & Pensions

LSC

1

Health, Education, Labor, & Pensions

MSPB

1

Homeland Security & Governmental Affairs

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. Affairs

NARA

1

Homeland Security & Governmental Affairs

NCCB

1

Banking, Housing, & Urban Affairs

NCD

1

Health, Education, Labor, & Pensions

NCUA

1

Banking, Housing, & Urban Affairs

NEA

1

Health, Education, Labor, & Pensions

NEH

1

Health, Education, Labor, & Pensions

NIBS

1

Banking, Housing, & Urban Affairs

NLRB

1

Health, Education, Labor, & Pensions

NMB

1

Health, Education, Labor, & Pensions

NSF

1

Health, Education, Labor, & Pensions

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Appendix B. Senate Committees Confirming
Agency Nominees, Continued
NSEB

1

Armed Services

NTSB

1

Commerce, Science, & Transportation

NRC

2

Environment & Public Works;
Homeland Security & Govt. Affairs

OSHRC

1

Health, Education, Labor, & Pensions

OGE

1

Homeland Security & Governmental Affairs

ONHIR

1

Indian Affairs

OPM

1

Homeland Security & Governmental Affairs

OSC

1

Homeland Security & Governmental Affairs

ODNI

1

Intelligence

OFCANGTP

1

Energy & Natural Resources

OPIC

1

Foreign Relations

PCRP

1

Foreign Relations

PRC

1

Homeland Security & Governmental Affairs

PCLOB

1

Judiciary

RRB

2

Health, Education, Labor, & Pensions;
Homeland Security & Govt. Affairs

SEC

1

Banking, Housing, & Urban Affairs

SIPC

1

Banking, Housing, & Urban Affairs

SSS

1

Armed Services

SBA

2

Small Business & Entrepreneurship;
Homeland Security & Govt. Affairs

SSA

2

Finance; Homeland Security & Govt. Affairs

SSAB

1

Finance

SJI

1

Judiciary

TVA

2

Environment & Public Works;
Homeland Security & Govt. Affairs

USAID

2

Foreign Relations; Homeland
Security & Governmental Affairs

USIP

1

Health, Education, Labor, & Pensions

USITC

1

Finance

USPS

1

Homeland Security & Governmental Affairs

USTDA

1

Foreign Relations

Note: Many agencies that have Homeland Security & Govt. Affairs in addition to other committees have this committee listed because of
its role in confirming inspectors general.

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Appendix C. Agency Structure Codebook
This codebook describes the data collected for The Federal
Executive Establishment, a report prepared for the Administrative
Conference of the United States. The 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 Microsoft Excel spreadsheet containing the data.
This document comprises the first 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 defined 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-confirmed political
appointees. The data collection focuses on the top leadership and
activities of agencies in the Executive Office of the President, the
executive departments, and independent agencies, rather than their
component bureaus, divisions, and committees. Agency statutes
are the primary source of data for each agency. The 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
confirmation and oversight information.
Method
Data collection proceeded in three phases. In the first 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.
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Unless otherwise specified, 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 Office 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, fixed 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. The team lead also coded the statutes for each
of the agencies. After 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 final data in the Master Agency Structure Spreadsheet.
In the final phase, coding of the data was validated using
a variety of different 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-confirmed 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.

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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:
The Theory 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 often 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 differ 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.

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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:
The number of distinct bureaus or offices within the

agency mentioned in the statute. Given the

irregularity of the use of terms (agency, administration,

bureau, division, and office), no distinction is made

in counting between whether something is called an

“agency,” “administration,” “bureau,” “office,” or
		“division.” Source: Agency statute.
Employees: The number of employees in the agency as of
		September 2011.337 Source: Office 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 officials, and secondary

sources for estimates of agency employment.
Features Insulating from the President
Commission: (1) The agency is governed by a multi-member board

or commission whose members are protected from

removal except for neglect of duty or malfeasance in

office; (0) The 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 office. 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.
These 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 identified in note 27.

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agencies are “quasi-judicial and quasilegislative.”338 These 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 specifies 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

specifies to constitute a quorum. Source:
			Agency statute.
Political appointees:
PAS:

Number of positions in agency subject to presidential
appointment with Senate confirmation. 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/GPO-

338. See Blinder, 855 F.2d 677; Fed. Election Comm’n v. Nat’l Rifle Aass’n Political
Victory Fund, 6 F.3d 821 (D.C. Cir. 1993).

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		PLUMBOOK-2008.pdf [hereinafter 2008 Plum Book].

NA:
Number of Senior Executive Service general positions

in agency filled by non-career appointment. Source:
		2008 Plum Book.
SchC:
Number of positions in agency filled by Schedule C
		Excepted Appointment. Source: 2008 Plum Book.
PA:
Number of positions in agency subject to presidential

appointment without Senate confirmation 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.
Agencyspecific
Personnel
System:
For the purposes of the chapters of Title 5 relating

to pay and allowances, certain agencies’ employees

are excluded from the definition of “employee”339 and

other agencies’ statutes permit employment

systems particular to that agency. Examples of

statutory language indicating separate employment

systems include “members, officers, 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).

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the number. Examples of this sort of language

include the agency “may appoint not more than 425

of the scientific, engineering, and administrative

personnel of the Administration without regard to

civil service laws.”342 Agency-specific personnel

system is coded (3) if 5 U.S.C. § 5012 excepts agency

employees from the definition 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 specifically 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).

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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:

Conflict of
Interest:

(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.
(1) Statute places a conflict of interest limitation on
the nomination/selection of members; (0) Statute
does not place a conflict of interest limitation on
members. Source: Agency statute.

Congressional
Input:
(1) Statute provides some mechanism for
congressional input in the nomination process aside
from confirmation; (0) Statute does not provide for
congressional input. Examples of congressional
input include “appointed by the President after 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
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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 specifically 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 specifies a fixed term for members,
commissioners, or agency heads; (0) Statute does not
specify a fixed term for members/commissioners/
agency head. Source: Agency statute.
Term Length: If Fixed Terms is coded (1), the number of years

specified 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 fixes 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 fix terms so that
nomination will be staggered; (.) The 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.

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For Cause:

Double 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
office,” “inefficiency,” 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.
(1) Agency identified as having two levels of “for
cause” protection; (0) Agency not identified 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 fixed term; (0) No bureau

inside agency has an official with a fixed term. Source:
		Agency statute.
ServePresident: (1) Statute specifies that officials serve at the
pleasure of the President; (0) Statute does not
specifically state that officials 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 qualified; (0)
If Fixed Terms is coded (1) and statute does not
provide for continuation until replacement; (.)
The commission or board members or agency head
do not have fixed terms.344 Source: Agency statute.
344. The Department of the Treasury’s statute provides that, when a term of office
of any officer of the Department ends, the officer may continue to serve until a
successor is appointed and qualified. 31 U.S.C. § 329(a)(1) (2012). However,
because the Secretary of the Treasury does not have a fixed term, the Treasury
Department is coded (.)

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Acting Service
Rules:
(2) Statute specifies that in the event of absence,
disability, or vacancy at the position of agency head,
the President may designate an individual to fill the
vacancy; (1) Statute designates a specific official
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 specifies that the President, with advice
and consent of Senate, appoints the agency head
and the agency head is not an official 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 specifies 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 different means are coded as a (1) in two categories.
For example, the Appalachian Regional Commission has co-chairmen—one
appointed by the President and confirmed by the Senate, and one elected by the
state members of the Commission. 40 U.S.C. §§ 14102(a)(1), 14301(b) (2012).
This 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). This position
is coded as a (0).

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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 specifies that the head of the agency is
an official 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 official. For example, the Secretary of
the Treasury is the Managing Trustee of the Federal
Supplementary Medication Insurance Trust Fund
Board. This 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 official from another agency, (1) Statute
specifies a term of office for the chair of the agency; (2)
Statute specifies that the chair may only be removed
for inefficiency, neglect of duty, or malfeasance in
office; (3) Statute specifies 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 office 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 office or for cause protections for board
members or commissioners generally but are silent
with respect to the chair specifically 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”).

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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, Office 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) The agency is exempted from submitting all
regulatory actions to the administrator of the Office
of Information and Regulatory Affairs; (0) The
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) The agency asserts “informal” legislative bypass
authority without any explicit authority, statutory
or otherwise, even though OMB Circular A-19 does
348. The 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. The Federal Aviation Administration and the Surface Transportation
Board (both part of the Department of Transportation), as well as the Offices
of the Comptroller of the Currency, Thrift 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).

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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) The 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, Office 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 The 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).

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Features Insulating from Congress
Independent Sources
of Funding: (1) Statute authorizes the agency to accept, use, and
dispose of gifts, 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
fiscal 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 specific 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
fiscal 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.

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Congressional Oversight
Committees
Confirming
Appointments:352 The names of the committees in the Senate
handling nominations for presidential appointee
positions requiring Senate confirmation. Source:
Henry B. Hogue, Maureen Bearden & Terrence L.
Lisbeth, Cong. Research Serv., RL30959, Presidential
Appointee Positions Requiring Senate Confirmation
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 Office
reports. Source: Agency statute.
Number
Committees: Number of committees specified 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
Affairs; 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 Affairs;
Indian Affairs; Judiciary; Rules and Administration; Select Committee on Ethics;
Select Committee on Intelligence; Select Committee on Aging; Small Business and
Entrepreneurship; and Veterans Affairs.
353. House committees of the 112th Congress include: Agriculture;
Appropriations; Armed Services; Budget; Education and the Workforce; Energy
and Commerce; Ethics; Financial Services; Foreign Affairs; Homeland Security;
House Administration; Intelligence; Judiciary; Natural Resources; Oversight and
Government Reform; Rules; Science, Space, and Technology; Small Business;
Transportation and Infrastructure; Veterans’ Affairs; and Ways and Means.

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legislative veto. Source: Agency statute.
Reporting
Committees: The names of the committees included in the

NumberCommittees count. Source: Agency statute.
Other Key Structural Features
Government-Wide Management Laws
CIO:

(1) The agency is statutorily mandated to have a Chief
Information Officer; (0) The agency is not statutorily
mandated to have a Chief Information Officer.
Source: Clinger-Cohen Act, 40 U.S.C. § 11315 (2012)
(incorporating 40 U.S.C. § 11314(c) (2012)).

IG:

(3) The agency is an “establishment” as defined by
the Inspector General Act of 1978 and has an Office
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) The
agency is a “designated federal entity” as defined
by the Inspector General Act of 1978 and the OMB
published list of designated federal entities and has
an Office of Inspector General that is headed by an
Inspector General who is appointed by the agency;
(1) The agency is a “federal entity” as defined by
the Inspector Generals Act of 1978 and the OMB
published list of federal entities and has an audit
office that is required to report an annual audit and
investigative activities to each house of Congress
and the Director of OMB; (0) The 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 Office 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 Office of the Director of National Intelligence’s IG
requirements).

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“federal entity.” Source: Inspector General Act of
1978, 5 U.S.C. §§ App. 3(2), (8G) (2012). See also
Office of Mgmt. & Budget,, 74 Fed. Reg. 3656-57
(Executive Office of the President Jan. 21, 2009);
U.S. Government Accountability Office, Inspectors
General: Reporting on Independence, Effectiveness,
and Expertise (2011).
CFO:

(2) The Chief Financial Officers Act mandates that
the agency have a Chief Financial Officer appointed
by the President and confirmed by the Senate; (1)
The Chief Financial Officers Act mandates that the
agency have a Chief Financial Officer appointed by
the head of the agency and is a career appointee from
either the competitive service or the Senior Executive
Service; (0) The Chief Financial Officers Act places no
requirements on the agency. Source: Chief Financial
Officers Act, 31 U.S.C. § 901(b) (2012).

Sunshine:

(1) The agency is subject to the Government in the
Sunshine Act of 1976; (0) The 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
officio members or members of the agency who
are appointed to other offices. 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).

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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 effect. For example, the Postal Regulatory
Commission may set aside any United States Postal
Service decision to close or consolidate any post
office if the Commission finds 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. The 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. The 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 specifies 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).

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does not specify that advisory commissions may be
established. Source: Agency statute.
Action Requires
Approval:
Some agencies cannot take specific action without
getting prior approval from one or more actors
outside the agency. This 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 Officer of the Corporation for National
Community Service cannot issue regulations
establishing a selection and compensation system for
the Corporation’s employees without first obtaining
the approval of the Director of the Office 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 specifies 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 specifies 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 specifically
authorize agency to promulgate rules and/or

359. 42 U.S.C. § 12651d(c)(7) (2012).
360. 7 U.S.C. § 16a(a) (2012).

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regulations. Source: Agency statute.361
Economically
Significant Rule: (1) Agency has promulgated an economically
significant rule in the last 15 years; (0) Agency has
not promulgated an economically significant rule
in the last 15 years. Source: Office of Information
and Regulatory Affairs, Office of Management
and Budget, Historical Reports, available at http://
www.reginfo.gov/public/do/eoHistoricReport
(information on economically significant 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
specifically authorize adjudication or the
361. The coding for this variable was also verified by using the Federal Register’s
website to confirm 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 Office for Immigration Review in the Department of Justice).

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employment of administrative law judges. Mere
authority to conduct hearings is not enough to
constitute a coding as (1). There 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 find
agencies identified under the APA provision relating
to adjudication (5 U.S.C. § 554). This 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).

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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).

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Department of Justice

Office of the Federal Coordinator for Alaska Natural

Department of Labor

Gas Transportation Projects

Department of State

Office of Government Ethics

Department of the Interior

Office of Management & Budget

Inter-American Foundation

Office of National Drug Control Policy

James Madison Memorial Fellowship Foundation

Office of Personnel Management

Legal Services Corporation

Office of Science & Technology Policy

Merit Systems Protection Board

Office of Special Counsel

Metropolitan Washington Airport Authority

Office of the U.S. Trade Representative

Millennium Challenge Corporation

Overseas Private Investment Corporation

Mississippi River Commission

Peace Corps

Morris K. Udall Scholarship Foundation

Postal Regulatory Commission

National Aeronautics & Space Administration

Privacy & Civil Liberties Oversight Board

National Archives & Records Administration

Railroad Retirement Board

National Consumer Cooperative Bank

Securities & Exchange Commission

National Council on Disability

Securities Investor Protection Corporation

National Credit Union Administration

Selective Service System

National Endowment for the Arts

Small Business Administration

National Endowment for the Humanities

Social Security Administration

National Institute of Building Sciences

Social Security Advisory Board

National Labor Relations Board

State Justice Institute

National Mediation Board

Tennessee Valley Authority

National Railroad Passenger Corp

U.S. African Development Foundation

National Science Foundation

U.S. Agency for International Development

National Security Education Board

U.S. Election Assistance Commission

National Transportation Safety Board

U.S. Institute of Peace

www.acus.gov
1120 20th Street, NW
Suite 706 South
Washington, DC 20036

Nuclear Regulatory Commission
Occupational Safety & Health Review Commission
Office of Administration
Office of the Director of National Intelligence
Office of Navajo & Hopi Indian Relocation

U.S. International Trade Commission
U.S. Postal Service
U.S. Trade & Development Agency
White House Office