Administrative Conference
of the United States

Sourcebook of United States
Executive Agencies
Jennifer L. Selin
David E. Lewis

Second Edition
October 2018

About the Administrative Conference
of the United States

T

he 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’s 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 of which 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

Sourcebook of United States
Executive Agencies
Jennifer L. Selin
David E. Lewis

Second Edition
October 2018

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.

i

Chairman’s Foreword to the Second Edition

O

f all the Administrative Conference’s many publications, none has assumed as
prominent a role as the first edition of the Sourcebook of United States Executive
Agencies (2012). All three branches of the federal government have found in the
Sourcebook an invaluable guide to the statutory structure and organization of federal
agencies available nowhere else.
They will find in the second edition a still more valuable guide. The second
edition expands the coverage of the Sourcebook significantly (by, among other things,
including agency bureaus), accounts for ongoing constitutional debates about agency
structure, and addresses the renewed importance of “government-wide legal mandates” in the administrative state.
The Conference is very grateful and honored that Professors David Lewis and
Jennifer Selin, the authors of the first edition, answered the Conference’s call to
prepare a second. They might well have begged off to pursue any number of projects
in furtherance of their important academic work rather than devote the countless
hours (none of them well compensated, even by academic standards) required to
prepare the second edition. Their willingness to do so should be recognized as an act
of public service.
While the Conference commissioned this book, it does not reflect the Conference’s views. Only recommendations adopted by the Conference’s Assembly do so.
That said, numerous Conference members contributed to this book along the way
by sharing their expertise with the authors.
Those members are thanked in the authors’ acknowledgements. I wish to thank
as well the following Conference staff who made publication of the second edition
ii

Sourcebook of United States Executive Agencies

possible: Gisselle Bourns for overseeing the project; Shawne McGibbon and David
Pritzker for carefully reviewing the close-to-final manuscript; and Frank Massaro and
Harry Seidman for seeing the final manuscript through to publication.
Matthew Lee Wiener
(Acting Chairman)

Chairman’s Foreword to the Second Edition

iii

Chairman’s Foreword to the First Edition

T

his 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.
iv

Sourcebook of United States Executive Agencies

The laboring oars on this project belonged to our consultants, David Lewis and
Jennifer Selin. At my urging and cajoling, 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

Chairman’s Foreword to the First Edition

v

About the Authors

Jennifer L. Selin is a Kinder Institute Assistant Professor of Constitutional Democracy at the University of Missouri. Professor Selin’s scholarship has been published
in political science, public administration, and law journals. Her current research
explores how the federal bureaucracy functions in the American separation of powers
system and illustrates that the legal structure of an executive agency’s decision-making
environment has important implications for agency performance. Professor Selin
holds a Ph.D. in political science from Vanderbilt University and a J.D. from Wake
Forest University.
David E. Lewis is the William R. Kenan, Jr. Professor of the Department of Political
Science at Vanderbilt University. 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). Professor 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. Professor Lewis holds a Ph.D. in political
science from Stanford University.

vi

Sourcebook of United States Executive Agencies

Acknowledgments

The Authors would like to thank Christopher Piper, Yuko Sato, Allison Archer, Ted
Briggs, Evan Haglund, John Hudak, Gbemende Johnson, and Mark Richardson for
dedicated research assistance. We also particularly thank Preeta Bansal, David Barron,
Gisselle Bourns, Clinton Brass, Marshall Breger, Lisa Bressman, Reeve Bull, Maeve
Carey, Ronald Cass, Mariano-Florentino Cuellar, Gary Edles, Gretchen Jacobs, Jeffrey Lubbers, Frank Massaro, Shawne McGibbon, Anne Joseph O’Connell, Patrick
Patterson, David Pritzker, Harold Relyea, Alasdair Roberts, Ed Rubin, Peter Shane,
Peter Strauss, Jonathan Siegel, Matthew Lee Wiener, and Paul Verkuil for commenting
on this edition or its predecessor. They saved us from many errors. Any errors that
remain are our own.

Acknowledgments

vii

Table of Contents

Chairman’s Foreword to the Second Edition .  .  .  .  .  .  .  .  .  .  .  .  . ii
Chairman’s Foreword to the First Edition .  .  .  .  .  .  .  .  .  .  .  .  .  . iv
About the Authors .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .

vi

Acknowledgments .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  . vii
Part I Introduction to the Second Edition .  .  .  .  .  .  .  .  .  .  .  .  .  . 1
A. Need for This Report  .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   . 4
B. Methodology  .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .  5
C. Structure of This Report .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .  7
Part II What is the Federal Executive Establishment?  .  .  .  .  .  .  .  .  . 8
A. What is a Federal Agency? .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  . 11
B. What This Report Omits .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   . 15
Part III Overview of the Federal Executive Establishment .  .  .  .  .  .  . 17
A. Executive Office of the President .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  . 18
1. Current Structure of the EOP .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   . 20
2. Controversies—Growth and “Czars”  .  .  .  .  .  .  .  .  .  .  .  .  .  . 25
B. Executive Departments  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  . 27
1. Executive Departments and Other
Executive Agencies Compared .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   . 34
2. The Structure of Executive Departments  .   .   .   .   .   .   .   .   .   .   .   .   . 35
3. Variation in the Number of Employees and Political Appointees  .  . 39
C. Agencies Located Outside of the EOP and Executive Departments  .   .   . 40
1. What is an Independent Agency? .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  . 42
2. Administrations .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   . 52
3. Multi-Member Bodies  .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   . 52
4. Government Corporations and
Government-Sponsored Enterprises (GSEs)  .  .  .  .  .  .  .  .  .  .  .  . 56
5. Other Forms of Government Agency:
Non-profits and Regional Agencies  .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   . 60
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Sourcebook of United States Executive Agencies

D. Federal Personnel System . . . . . . . . . . . . . . . . . . . . . 62
1. The Modern Personnel System .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  . 62
2. Trends in Personnel Management .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   . 71
a) Thickening Government  .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   . 71
b) Increase in Political Appointees  .   .   .   .   .   .   .   .   .   .   .   .   .   .   . 72
c) Increase in Agency-Specific Personnel Systems .   .   .   .   .   .   .   .   . 75
d) Increased Role of Government Contractors .   .   .   .   .   .   .   .   .   . 79
Part IV The Creation and Design of Federal Agencies .  .  .  .  .  .  .  .  . 82
A. Why a New Agency Rather Than Existing Agencies?  .   .   .   .   .   .   .   .   . 84
B. Agency Reorganization and Termination  .  .  .  .  .  .  .  .  .  .  .  .  .  . 85
C. Why Do Federal Agency Designs Differ? .   .   .   .   .   .   .   .   .   .   .   .   .   .   . 87
1. Insulating Agencies from the President .   .   .   .   .   .   .   .   .   .   .   .   .   . 88
a) Multi-member Bodies  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  . 89
b) Limitations on Appointments .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   . 89
c) Protections Against Removal  .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   . 96
d) OMB Review of Budgets, Regulations,
and Communications .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .  102
e) Control Over Agency Litigation  .   .   .   .   .   .   .   .   .   .   .   .   .   .  105
2. Insulating Agencies from Congress .  .  .  .  .  .  .  .  .  .  .  .  .  .  . 106
a) Appropriations and Agency Self-funding  .   .   .   .   .   .   .   .   .   .  107
b) Agency Reporting Relationships  .  .  .  .  .  .  .  .  .  .  .  .  .  . 110
3. Other Key Structural Features .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .  112
Conclusion .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  . 121
Appendix A-1: List of Agencies
and Subunits—By Agency Name .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  . 125
Appendix A-2: List of Agencies
and Subunits—By Abbreviation .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  . 133
Appendix B: Senate Committees Confirming
Agency and Subunit Nominees .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  . 141
Appendix C: Agency Structure Codebook .  .  .  .  .  .  .  .  .  .  .  .  . 150
Data Collection .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   . 150
Variables .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  . 152

Table of Contents

ix

List of Tables

Table 1. Entities in the Executive Office of the President  .  .  .  .  .  .  .  .  .  .  . 23
Table 2. United States Executive Departments and Prominent Subunits .  .  .  . 29
Table 3. Overview of Agencies Outside the
EOP and Executive Departments  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  . 42
Table 4. Statutory Characteristics of
Multi-Member Bodies with Fixed Terms  .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   . 45
Table 5. Non-Multimember Agencies and Subunits with
Statutorily Fixed Terms for Presidentially Appointed Leaders .   .   .   .   .   .   .   .   . 48
Table 6. Agency-Specific Personnel Systems Authorized by Statute .   .   .   .   .   .   . 76
Table 7. Statutory Limitations on the Types of Persons
Who Can Be Nominated Agency Heads or Board Members .   .   .   .   .   .   .   .   .   . 92
Table 8. Boards or Commissions Whose Membership the
President Does Not Fully Select .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   . 94
Table 9. Statutory Limitations on the President’s Removal Power  .   .   .   .   .   .   . 97
Table 10. Agencies with Explicit Double “For-Cause” Protections .   .   .   .   .   .   . 99
Table 11. Statutory Chair Selection and
Retention Rules for Multi-Member Bodies  .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .  100
Table 12. Agencies Excluded from OMB Review of Budgets,
Rulemaking, and Legislation .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  . 104
Table 13. Agency Statutes Providing Sources of Funding Other than
Appropriations  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  . 109
Table 14. Agencies and Bureaus Completely Exempt from Appropriations  .   .  110
Table 15. Government-Wide Position Mandates (CFO, CIO, IG)  .   .   .   .   .   . 114
Table 16. Agencies Subject to the Sunshine Act  .   .   .   .   .   .   .   .   .   .   .   .   .   . 115
Table 17. Agencies with Authorizing Statutes That Require
Prior Approval by Other Agency or Congress for Certain Actions .   .   .   .   .   .  116
Table 18. Agencies with Statutory Adjudicatory Authority .   .   .   .   .   .   .   .   . 117
Table 19. Details of Federal Agencies’ Rulemaking Activities  .   .   .   .   .   .   .   . 119
x

Sourcebook of United States Executive Agencies

List of Figures

Figure 1. Expansion of Federal Merit System Coverage:
Percentage of Federal Jobs in Federal Merit System, 1883-1952 .  .  .  .  .  .  .  . 64
Figure 2. Simplified Depiction of Current Federal
Civilian Personnel System .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   . 69
Figure 3. Total Number of Federal Government
Appointees and Percentage Appointed, 1960-2008  .  .  .  .  .  .  .  .  .  .  .  .  . 73

List of Figures

xi

Part I

Introduction to the Second Edition

I

n 2012, the Administrative Conference of the United States published the Sourcebook of United States Executive Agencies (Sourcebook). At that time, there was no
authoritative, current treatment of the structure and organization of the federal
executive establishment. Prior to the publication of the Sourcebook, 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.1 Admirable projects
subsequently described different components of the executive establishment, but few
works replicated the comprehensive view of Moe’s earlier work.2

1. 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].
2. Kevin R. Kosar, Cong. Research Serv., RL30365, Federal Government Corporations: An Overview (June 8, 2011) [hereinafter Kosar, Gov’t Corp.]; Marshall J. Breger
& Gary J. Edles, Independent Agencies in the United States: Law, Structure, and
Politics (2015) [hereinafter Breger & Edles, Independent Agencies]; Marshall J. Breger &
Gary J. Edles, Established by Practice: The Theory and Operation of Independent Federal Agencies, 52
Admin. L. Rev. 1111 (2000) [hereinafter Breger & Edles, Established by Practice]; Kirti Datla & Richard L. Revesz, Deconstructing Independent Agencies (and Executive Agencies), 98 Cornell L. Rev.
769 (2013); Anne Joseph O’Connell, Bureaucracy at the Boundary, 162 U. Pa. L. Rev. 841 (2017);
Jennifer L. Selin, What Makes An Agency Independent?, 59 Am. J. Pol. Sci. 971 (2015).
Introduction to the Second Edition

1

The Sourcebook described the agencies of the federal executive establishment3
and their diverse characteristics, motivated by the belief that a comprehensive examination of the executive establishment would aid in efforts to pinpoint problems
and clarify the consequences of different design choices for agency performance. It
was written as a resource for members of Congress and their staffs, agency officials,
and the general public. The report described 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. Since its publication,
the Sourcebook has served as a valuable resource for government employees, has been
recognized by the United States Supreme Court and federal judiciary,4 and has been
cited by scholars and practitioners in law,5 economics,6 public policy,7 political science,8
and public administration.9
Five years later, we embarked upon an update of the report to ensure that the
Sourcebook provides an accurate account of today’s federal executive establishment.
3. The Sourcebook 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 Moe Report, supra note 1.
See infra Part II for further discussion.
4. City of Arlington v. FCC, 569 U.S. 290, 314 (2013) (Roberts, C.J., dissenting).
5. E.g., Daniel A. Farber & Anne Joseph O’Connell, The Lost World of Administrative Law, 92 Tex.
L. Rev. 1137, 1155 (2014); Catherine Y. Kim, Presidential Control Across Policymaking Tools, 43
Fla. St. U. L. Rev. 91, 98 (2015); Jon D. Michaels, An Enduring, Evolving Separation of Powers, 115
Colum. L. Rev. 515, 542 (2015); Eloise Pasachoff, The President’s Budget as a Source of Agency Policy
Control, 125 Yale L.J. 2182, 2195 (2016); Kevin M. Stack, Purposivism in the Executive Branch: How
Agencies Interpret Statutes, 109 Nw. U. L. Rev. 871, 880 (2015); Christopher J. Walker, Inside Agency
Statutory Interpretation, 67 Stan L. Rev. 999, 1048 (2015).
6. Ethan Bueno de Mesquita & Dimitri Landa, Political Accountability and Sequential Policymaking,
132 J. Pub. Econ. 95, 96 (2015).
7. E.g., Examining the Use of Agency Regulatory Guidance, Part II: Hearing before the S. Comm. on
Homeland Sec. and Gov’t Affairs, 114th Cong. (2016) (statement of Clyde Wayne Crews, Jr., Vice
President for Policy/Director of Technology Studies, Competitive Enterprise Institute); Michelle
D. Christensen, Cong. Research Serv., R43163, The President’s Budget: Overview of
Structure and Timing of Submission to Congress (July 25, 2013); John Kamensky, How Big
is Government? New ‘Map’ Shows Us Nobody Knows, Gov’t Executive (Jan. 16, 2013), http://www.
govexec.com/excellence/promising-practices/2013/01/how-big-government-new-map-shows-us-nobody-knows/60697/.
8. E.g., Vincent Arel-Bundock, James Atkinson, & Rachel Augustine Potter, The Limits of Foreign Aid
Diplomacy: How Bureaucratic Design Shapes Aid Distribution, 59 Int’l Stud. Q. 544, 548 (2015);
Sharece Thrower, The President, the Court, and Policy Implementation, 47 Presidential Stud. Q.
122, 133 (2017).
9. E.g., Anthony M. Bertelli, Dyana P. Mason, Jennifer M. Connolly & David A. Gastwirth, Measuring Agency Attributes with Attitudes Across Time: A Method and Examples Using Large-Scale Federal
Surveys, 25 J. Pub. Admin. Res. & Theory 513, 538 (2015); Jason A. Grissom, Samantha L. Viano
& Jennifer L. Selin, Understanding Employee Turnover in the Public Sector: Insights from Research on
Teacher Mobility, 76 Pub. Admin. Rev. 241, 246 (2016); Tina T. Moldogaziev & Chris Silvia, Fostering Affective Organizational Commitment in Public Sector Agencies: The Significance of Multifaceted
Leadership Roles, 93 Pub. Admin. 557, 564 (2015).
2

Sourcebook of United States Executive Agencies

The 2012 report relied extensively on the 2012 United States Code to identify federal
executive agencies and catalogue their structural features. Since that time, the United
States Code has changed over 14,000 times.10 While not all of these changes affected
the contours of the federal executive establishment, many did. For example, in 2015,
Congress removed the Surface Transportation Board from the jurisdiction of the
Department of Transportation (making the Board its own entity).11 In addition,
recent legal and political decisions have affected the federal executive establishment.
Legal rulings such as PHH Corporation v. Consumer Financial Protection Bureau12
and UC Health v. National Labor Relations Board13 have had consequences for agency
structure and governance. Furthermore, government-wide legal mandates have taken
on renewed importance as politicians seek to exert more control over federal executive
policy. For example, in 2017, Congress used the Congressional Review Act (CRA) 15
times to pass resolutions of disapproval regarding federal rulemaking.14 This second
edition of the Sourcebook accounts for statutory, legal, and political changes like these.
In addition, the update includes an expanded set of agencies, giving the Sourcebook a
broader reach than the first edition.
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
10. Office of the Law Revision Counsel, U.S. House of Repres., United States Code
Table of Sections Amended, Enacted, Omitted, Repealed or Transferred, http://uscode.house.gov/classification/tables.shtml (number of changes as of April 3, 2017).
11. Surface Transportation Board Reauthorization Act of 2015, Pub. L. No. 114-110, § 3 (2015).
12. 881 F.3d 75 (D.C. Cir. 2018) (en banc), vacating 839 F.3d 1, 14 (2016) (addressing the constitutionality of the Consumer Financial Protection Bureau’s structure as an independent regulatory
agency headed by a single individual).
13. 803 F.3d 669 (D.C. Cir. 2015) (reviewing agency quorum requirements).
14. U.S. Gov’t Accountability Office, Congressional Review Act FAQs, https://www.gao.gov/legal/
congressional-review-act/faq (last visited May 21, 2018). These resolutions overturned rules from the
Departments of Defense (Pub. L. No. 115-11 (2017)); Education (Pub. L. No. 115-13 (2017), Pub. L.
No. 115-14 (2017)); Health and Human Services (Pub. L. No. 115-23 (2017)); Interior (Pub. L. No.
115-5 (2017); Pub. L. No. 115-12 (2017); Pub. L. No. 115-20 (2017)); Labor (Pub. L. No. 115-17
(2017); Pub. L. No. 115-21 (2017); Pub. L. No. 115-24 (2017); Pub L. No. 115-35 (2017)); and the
Consumer Financial Protection Bureau (Pub. L. No. 115-74 (2017)); Federal Communications Commission (Pub. L. No. 115-22 (2017)); General Services Administration (Pub. L. No. 115-11 (2017));
National Aeronautics and Space Administration (Pub. L. No. 115-11 (2017)); Securities and Exchange
Commission (Pub. L. No. 115-4 (2017)); and Social Security Administration (Pub. L. No. 115-8
(2017)). To put this in context, prior to 2017, Congress had only passed a resolution of disapproval on
one rule. Pub. L. No. 107-5 (2001) (overturning a Department of Labor rule on the ergonomics program promulgated during the Clinton Administration). For additional information regarding renewed
political attention to the Congressional Review Act see, for example, David Blackmon, Little-Used
Congressional Review Act Becoming An Indispensable Tool, Forbes, Mar. 6, 2017, https://www.forbes.
com/sites/davidblackmon/2017/03/06/little-used-congressional-review-act-becoming-an-indispensable-tool/#7b289522b8c8; Emmarie Huetteman, How Republicans Will Try to Roll Back Obama
Regulations, N.Y. Times, Jan. 30, 2017, https://www.nytimes.com/2017/01/30/us/politics/congressional-review-act-obama-regulations.html?_r=0.
Introduction to the Second Edition

3

sheds, and garages of an old farm.”15 The old farm metaphor, while a better characterization of the New Deal executive establishment than the current one, is useful. Like
the first edition of the Sourcebook, this report is intended to be like a map that marks
the different buildings in relation to one another and to the entire 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.
A. Need for This Report
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. The structures of federal agencies, from their
location to features of their internal design, partly determine who has influence over
non-statutory policy decisions and how well federal agencies perform in carrying out
statutorily mandated responsibilities.16 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 other key stakeholders, and who has access to decision-makers.
This is important both when there is broad agreement about what course agencies
should pursue and when there are important disagreements among the President and
members of the House and Senate.

15. 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.].
16. For recent treatments about how the structure of federal agencies influences both policy and performance see, for example, Peri E. Arnold, Making the Managerial Presidency: Comprehensive Reorganization Planning, 1905-1996 (2d ed. 1998); Herbert Emmerich, Federal
Organization and Administrative Management (1971); 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]; 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); B. Dan Wood & John
Bohte, Political Transaction Costs and the Politics of Administrative Design, 66 J. Pol. 176 (2004).
4

Sourcebook of United States Executive Agencies

Each year the Government Publishing Office prints and makes available online
the United States Government Manual,17 which is the official handbook of the federal
government. Yet, the Manual is not written to provide information systematically on
the structure and design of federal agencies.18 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.19 In contrast, the Sourcebook seeks to provide scholars and
practitioners an overview of how the executive establishment is arranged. Thus, this
report remains the primary authoritative treatment of the structure and organization
of the federal executive establishment.
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 or bureau.20 Researchers noted
statutory features of each agency along with a citation for each feature. A total of 67
statutory characteristics of agencies were tracked for 6 components of the Executive
Office of the President (EOP), the 15 executive departments and 173 bureaus within

17. E.g., Nat’l Archives & Rec. Admin., The United States Government Manual (2016)
[hereinafter NARA, Gov’t Manual], https://www.gpo.gov/fdsys/browse/collection.action?collectionCode=GOVMAN&browsePath=2017+Edition+%28August%29%3BGOVMAN-2017-08-02%3Bthumbnails%5C%2Fgovman2017.jpg&isCollapsed=false&leafLevelBrowse=false&ycord=0 (providing
access to the 1995 to 2017 editions of the United States Government Manual).
18. The 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. This may be a result of the fact that the Manual
is often compiled by multiple individuals, some of whom are not familiar with each agency’s statutory
design or functions.
19. E.g., Staff of S. Comm. on Homeland Sec. & Gov’t Affairs, 114th Cong., Policy and
Supporting Positions (Comm. Print 2016), [hereinafter 2016 Plum Book].
20. In the first edition of the Sourcebook, each researcher on the team was assigned approximately 15
agencies to research. Each researcher on the team found the original public law which 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. In the second edition, we updated the data for the agency and bureau statutes that previously
had been analyzed in either the first edition of the Sourcebook or in Selin’s What Makes An Agency
Independent? dataset to account for statutory changes since the original data collection. See Selin, supra
note 2 (data available at http://faculty.missouri.edu/~selinj/data.shtml).
Introduction to the Second Edition

5

those departments,21 and 78 agencies outside of the EOP and executive departments
and 2 bureaus within those agencies.22 Researchers noted the location of each agency
in relation to elected officials and each other (e.g., EOP, executive department, etc.),
features of agency governance (e.g., multi-member structure, number of political
appointees), agency powers (e.g., power to raise funds, independent litigating authority), and aspects of agency political oversight (e.g., Office of Management and Budget
(OMB) review and congressional reporting requirements).23 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.
Mapping the federal executive establishment is an immense task, encompassing
history, law, and political science. The topics are varied, from the development of the
federal personnel system to contemporary political oversight of administration. Each
of these topics has been a fertile research area for some time. The purpose of this 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 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
21. 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. Ronald C. Moe, Cong. Research Serv., RL30673, The President’s
Cabinet: Evolution, Alternatives, and Proposals for Change (2000) [hereinafter Moe,
President’s Cabinet].
22. This report follows a variation of the definition of “agency” in the Administrative Procedure Act
(APA), see 5 U.S.C. § 551(1) (2017), to identify all federal entities outside the legislative and judicial
branches which are headed by one or more Senate-confirmed appointees.
23. To the extent practicable, we checked the final justifications with existing academic research on
agency structure. Any discrepancies between the team’s coding and existing research are footnoted in
the complete codebook and appendix, made publicly available from the Administrative Conference of
the United States. 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 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 despite no explicit
mention in statute. See, e.g., Free Enter. Fund v. Pub. Co. Accounting Oversight Bd., 561 U.S. 477
(2010); Wiener v. United States, 357 U.S. 349 (1958); SEC. 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 structural arrangement agreed upon
between Congress and the President.
6

Sourcebook of United States Executive Agencies

provide detail about how to get around in downtown Baltimore, 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 Baltimore
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.
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 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.

Introduction to the Second Edition

7

Part II

What is the Federal Executive Establishment?

T

he 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 the 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.”24 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 when it creates and funds federal
programs and agencies. Congress confirms nominees and determines how lower-level
officials will be selected. The legislature 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 in which 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,

24. 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).
8

Sourcebook of United States Executive Agencies

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 agencies.25 For example, the GAO’s self-described mission is to
serve Congress by investigating how the U.S. government spends federal revenues.26
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.27 These units provide administrative
support for the federal courts, offer 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 Publishing Office is responsible for
publishing official information for and about all three branches. The United States
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.”28 Neither
agency self-evidently needs to be located in the legislative branch.29
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”30 and historically federal employees working either in
one of the executive departments or in scores of other entities (i.e., not a component
of the Executive Office of the President or one of the executive departments) housed
in the executive branch have carried out the functions of government, overseen and
supervised by the three branches.31
25. 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.
26. See U.S. Gov’t Accountability Office, About GAO: Making a Difference for Congress and the Nation (2011), http://www.gao.gov/about/gao_at_a_glance_2010_english.pdf.
27. See United States Courts, About Federal Courts, http://www.uscourts.gov/FederalCourts.aspx
(last visited Aug. 20, 2018).
28. United States Botanic Garden, About Us, http://www.usbg.gov/about-us (last visited Oct. 30, 2017).
29. While the Government Accountability Office identifies itself as working for 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). But see Bowsher v.
Synar, 478 U.S. 714, 729-732 (1986) (recognizing Congress has consistently viewed the Comptroller
General, as head of the GAO, as an officer of the legislative branch).
30. U.S. Const. art. II, § 1.
31. The executive departments are defined by statute. See 5 U.S.C. § 101 (2017) (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 that this report deals with below.
What is the Federal Executive Establishment?

9

Some agencies do not fit comfortably into any of the three branches. Rather, they
have been designed to be shielded from the control of elected officials. The Brownlow
Committee referred to some of the agencies outside the executive departments as
the “headless fourth branch of government”32 because they are designed to be insulated from presidential and, to a lesser extent, congressional control. Furthermore,
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 CRS
1980 Fed. Exec. Establishment Report.33 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.
In 2017 the federal executive establishment employed approximately 2.68 million
civilians34 in either a part- or full-time capacity, excluding an undisclosed number of
persons working in the intelligence agencies. By comparison, the legislative and judicial branches employed approximately 33,000 persons each.35 The military services are
comprised of approximately 1.38 million persons.36 In addition to part- and full-time
federal employees, private contract employees paid by the federal government also

32. President’s Comm. on Admin. Mgmt., supra note 15, at 40.
33. Moe Report, supra note 1.
34. Office of Mgmt. & Budget, Exec. Office of the President, Analytical Perspectives,
Budget of the United States Government, Fiscal Year 2018, at 62 (2017) [hereinafter OMB,
2018 Analytical Perspectives]. This estimate includes all executive branch civilian employees,
including the Postal Service and Postal Rate Commission. For the purposes of counting federal civilian
employees, it bears noting that the foregoing totals exclude government contractors and employees of
federal entities that are not staffed by federal employees (e.g., federally sponsored non-profits).
35. Id.
36. Id.
10

Sourcebook of United States Executive Agencies

perform substantial work for the federal government, as do state and local employees
and other workers whose salaries are paid by federal grant dollars.37
A. What is a Federal Agency?
Determining what constitutes a federal agency is not an easy task but a necessary one
for mapping 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 providing 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 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; [or] military authority
exercised in the field in time of war or in occupied territory[.]38
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
37. See, e.g., John J. DiIulio Jr., Bring Back the Bureaucrats (2014) (demonstrating that federal
bureaucratic tasks are increasingly outsourced to contractors, state, and local governments); Paul R.
Verkuil, Valuing Bureaucracy: The Case for Professional Government (2017) (evaluating the role of contractors and private sector solutions to government performance and highlighting
the need for an executive establishment that can deliver federal services). The federal government does
not systematically keep track of the number of contract employees. One source estimated the number of
contract employees at 3.7 million in 2015. See Paul C. Light, The True Size of Government, The Volcker Alliance, at 3 (2017) [hereinafter Light, True Size of Gov’t], https://www.volckeralliance.org/sites/
default/files/attachments/Issue%20Paper_True%20Size%20of%20Government.pdf. Nation Analytics
constructed this estimate using the records of every federal government contract transaction recorded in
2015 and analyzing each purchase using the Department of Commerce’s Bureau of Economic Analysis
regional input/output model of the U.S. economy. The estimate includes direct and indirect employment created by the contracts, but does not include jobs created as byproducts of contract spending.
Additionally, to measure the true size of government, one would also want to measure the number of employees paid by federal grants. An estimate of the total blended federal workforce in 2015, which includes
federal, contract, and grant employees, is over 7.3 million. Id. at 4. The Taxpayers Right-to-Know Act
(S. 317), considered by the 115th 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.
38. 5 U.S.C. § 551(1) (2017). The definition also excludes functions performed as a result of mortgage
insurance law.
What is the Federal Executive Establishment?

11

a board in which two thirds of the members are selected by private shareholders rather
than the President?39 Even more difficult are cases where Congress has created private
corporations or venture capital funds, as they pursue public ends as private entities.40
Courts have recognized that the APA’s definition of agency is not entirely clear,41
and there has been a substantial amount of litigation over which government entities
fall within the various legal classifications of agency.42 Since what constitutes an agency under the APA is governed on a case-by-case basis through litigation, there is no
authoritative list of government agencies. Every list of federal agencies in government
publications is different. For example, FOIA.gov lists 118 separate executive agencies
that comply with the Freedom of Information Act requirements imposed on every
federal agency.43 This appears to be on the conservative end of the range of possible
agency definitions. The United States Government Manual lists 305 unique or subcomponent units as agencies.44 An even more inclusive listing comes from USA.gov,
which lists over 600 government departments and agencies.45
When Congress creates programs, it most often delegates responsibility for these
programs to an executive department, a component of an executive department, or
other agencies of various types. However, the recipient of delegated authority need
not be a federal agency since Congress delegates authority to states, local governments,

39. See 12 U.S.C. § 2279aa-2(b)(2) (2017).
40. U.S. Gov’t Accountability Office, GAO-10-97, Federally Created Entities: An
Overview of Key Attributes (2009) (identifying 7 different types of federally created entities, including federally funded research and development centers) [hereinafter GAO, Federally Created
Entities].
41. 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.”).
42. Some 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 & 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). For a more thorough
legal discussion of what constitutes an “agency” under other laws, see O’Connell, Bureaucracy at the
Boundary, supra note 2, at 894-96.
43. Department of Justice, Data, http://www.foia.gov/data.html (last visited April 5, 2018).
44. NARA, Gov’t Manual, supra note 17.
45. U.S. Gen. Servs. Admin., A-Z Index of U.S. Government Departments and Agencies, https://www.
usa.gov/federal-agencies/a (last visited Oct. 30, 2017) [hereinafter GSA, A-Z Index].
12

Sourcebook of United States Executive Agencies

and private sector entities as well.46 State and local governments help implement key
federal programs such as Medicaid. Congress empowers private litigators to pursue
a public function in the enforcement of federal laws by altering economic incentives
for such behavior and allowing access to federal courts.47 While it is clear that state
and local governments and private sector firms are not federal agencies,48 since the
1960s, Congress also has delegated authority to entities that are neither typical government agencies nor completely private organizations or local governments.49 These
entities take a 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; federal research laboratories
like Los Alamos and Oak Ridge National Laboratories; venture capital funds such
as OnPoint Technologies (Army) and Red Planet Capital (National Aeronautics and
Space Administration), 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.50
Given such definitional difficulties, the term “federal agency” (or “agency”) in
this report refers to a clearly delineated set of federal entities. “Agency,” as used here,
46. E.g., Pamela J. Clouser McCann, The Federal Design Dilemma: Congress and Intergovernmental Delegation (2016); Abbe R. Gluck, Intrastatutory Federalism and Statutory
Interpretation: State Implementation of Federal Law in Health Reform and Beyond, 121 Yale L. J. 534
(2011); Harold J. Krent, Fragmenting the Unitary Executive: Congressional Delegations of Administrative Authority Outside the Federal Government, 85 Nw. U. L. Rev. 62 (1990); Gillian E. Metzger,
Privatization as Delegation, 103 Colum. L. Rev. 1367 (2002).
47. Sean Farhang, The Litigation State: Public Regulation and Private Lawsuits in
the U.S. (2010); Sean Farhang, Public Regulation and Private Lawsuits in the American Separation of
Powers System, 52 Am. J. Pol. Sci. 821 (2008).
48. Indeed, the point has been litigated with consistent results. See, e.g., Johnson v. Wells, 566 F.2d
1016, 1018 (5th Cir. 1978) (state agencies are not an “agency” within the meaning of the APA); Singleton Sheet Metal Works v. City of Pueblo, 727 F. Supp. 579, 581 (D. Colo. 1989) (city receiving federal
funding does not constitute an “agency” under the APA); Sowell’s Meats and Servs. v. McSwain, 788
F.2d 226 (4th Cir. 1986) (state agencies do not fall within the provisions of FOIA).
49. 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].
50. 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.
What is the Federal Executive Establishment?

13

refers to a federal executive instrumentality directed 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).51 We exclude entities connected to the government of the District of Columbia and international and multilateral organizations,
such as the United Nations or International Monetary Fund, whose governance is a
shared enterprise between the United States and other nations.
However, given the political importance of many agency bureaus (e.g., Food and
Drug Administration, Internal Revenue Service), we also catalogue subunits within
the above-classified agencies that Congress and the President recognize as politically
important.52 We include subunits within a larger agency (as defined above) that: (1)
promulgated a rule reported to Congress under the Congressional Review Act in

51. First, to identify whether an agency was executive in nature, we relied on the definition of executive
agency in 5 U.S.C. § 105 (2017) (an executive agency means “an Executive department, a government
corporation, and an independent establishment”). We then generated a list of any instrumentality
that was listed in any of the following sources: 2016 Plum Book, supra note 19; Christopher M.
David and Michael Greene, Cong. Research Serv., RL30959, Presidential Appointee
Positions Requiring Senate Confirmation and Committees Handling Nominations (2016); NARA, Gov’t Manual, supra note 17; Office of Personnel Management, FedScope
Employment Cubes (Sept. 2017), http://www.fedscope.opm.gov/employment.asp hereinafter [OPM,
FedScope]; GSA, A-Z Index, supra note 45. After doing this, we identified the original public law that
established the agency and that law’s corresponding citation in the U.S. Code. Each researcher on the
team then read that section of the Code to not only extract information about the agency’s structure, but also to make sure that the agency fit our definition of executive agency. Most agencies were
relatively easy to classify because their statutes specify the type or location of the agency. For example,
the provision establishing the Sentencing Commission clearly states that the agency is established as
part of the judicial branch, and thus would not classify as executive. 28 U.S.C. § 991 (2017). However,
some agencies did require a bit of judgment. We classified multi-member boards and commissions as
“agencies” if any of the voting members of the board or commission are nominated by the President
and confirmed by the Senate. Additionally, if a single individual manages the day to day operations
of an entity, but is subject to a board of governors or other similar body, we classified that entity as an
agency if any of the voting members of the board are nominated by the President and confirmed by the
Senate. Finally, for some agencies, the U.S. Code did not explicitly identify the location of the agency
in a particular branch. For example, USA.gov lists the Architect of the Capitol as an agency in the federal government. Yet the U.S. Code does not explicitly identify or include the Architect of the Capitol
among the entities listed in 5 U.S.C. § 105 and does not reference it as an agency in the organizational
provisions addressing agencies generally. See, e.g., 5 U.S.C. §§ 101-105 (2017). However, because the
agency’s structure and general powers and duties are defined in Title 2 “The Congress,” we considered
it legislative in nature. Only a handful of agencies required this sort of judgment.
52. Some subunits are legally or traditionally considered “independent” yet are statutorily defined as
existing within a larger agency. See, e.g., 12 U.S.C. § 5491(a) (2017) (establishing the Bureau of Consumer Financial Protection as an “independent bureau” within the Federal Reserve System); 42 U.S.C.
§ 7171(a) (2017) (establishing the Federal Energy Regulatory Commission within the Department of
Energy as an independent regulatory commission). Because these entities are statutorily organized as
subunits, we classify them as such.
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2016;53 or (2) are listed in both the September 2016 Employment Cube in the Office
of the Personnel Management’s Central Personnel Data File54 and in an agency’s organization chart in the 2016 Government Manual as directly reporting to an Under
Secretary or the equivalent;55 or (3) are excluded from all of the above for national
security reasons.56
B. What This Report Omits
This report focuses primarily on the top leadership and activities of agencies in the
Executive Office of the President, executive departments, agencies located outside of
the EOP and executive departments, and politically recognized component bureaus.
Inside the included federal agencies and subunits are hundreds of bureaus, administrations, divisions, offices, working groups, and committees, which 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 made up of
over 70,000 persons.57 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

53. List obtained through a search of the U.S. Government Accountability Office’s Congressional
Review Act database for rules published in the Federal Register between January 1, 2016 and December 31, 2016. U.S. Gov’t Accountability Office, Congressional Review Act, https://www.gao.gov/legal/
congressional-review-act/overview (last visited May 21, 2018). The CRA requires that, before a rule
becomes effective, the agency promulgating the rule must submit a rule report to each house of Congress and to the Comptroller General. 5 U.S.C. § 801(a)(1)(A) (2017). The law contains exemptions
for rules concerning monetary policy proposed or implemented by the Board of Governors of the
Federal Reserve System or the Federal Open Market Committee. See id. § 807. Compliance with this
legal requirement is relatively high (89.12 percent), yet agencies are less likely to report a rule in times
of divided government. Jennifer L. Selin, Political Control, Bureaucratic Responsiveness, and Agency
Structure (July 16, 2014) (unpublished Ph.D. dissertation, Vanderbilt University) (on file with author).
While this may raise concern that an entity would be excluded from the definition of “bureau” due to
statutory exemptions to the CRA or strategic decisions not to report a rule due to divided government,
it is likely such an entity will be captured by one of the other two aspects of the definition of bureau.
To ensure that each rule report in the CRA database accurately accounted for the bureau responsible
for the rule, we cross-referenced each rule with the Federal Register.
54. OPM, FedScope, supra note 51.
55. NARA, Gov’t Manual, supra note 17. This definition excludes administrative offices that are
common across many agencies, such as Offices of Public Affairs, General Counsel Offices, and the like.
56. These bureaus include the Department of Defense’s Defense Intelligence Agency, Joint Improvised-Threat Defeat Agency, National Geospatial-Intelligence Agency, and the National Security
Agency and the Department of Energy’s National Nuclear Security Administration.
57. See U.S. Gen. Servs. Admin., Federal Advisory Committee Act (FACA) Management Overview,
http://www.gsa.gov/portal/content/104514 (last visited Oct. 30, 2017) (providing background on the
implementation of the Federal Advisory Committee Act); see also Susan Moffitt, Making Policy
Public: Participatory Bureaucracy in American Democracy (2014) (dealing with advisory
commissions); Seidman, supra note 16, at 197-202 (discussing advisory commissions).
What is the Federal Executive Establishment?

15

on policies and issues that are shared across the executive branch.58 These units of the
executive establishment receive little attention in this report.
This report self-consciously relies primarily on the statutory language of authorizing statutes rather than on administrative practice. So, for example, when the report
lists features of agencies such as “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 agreed-upon structural deal made between Congress and the President.
The reliance on statutory language has the virtue of comparability and consistency
across agencies, but it 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. Statutory law does not include explicit “for-cause” protections against
the removal of commissioners, but courts have accepted that the commissioners have
such protections.59 By focusing on which agencies’ statutes include explicit “for-cause”
provisions, this 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 statute would be a worthy endeavor but are beyond 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.

58. 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 an
interagency committee. The committees are sometimes created by statute and other times created by
executive action.
59. Free Enter. Fund v. Pub. Co. Accounting Oversight Bd., 561 U.S. 477, 487 (2010) (assuming that
SEC commissioners are protected from removal by “for-cause” provisions, in part because neither
party argued otherwise); SEC v. Blinder, Robinson, & Co., 855 F.2d 677 (10th Cir. 1988) (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). But see Free Enter. Fund,
561 U.S. at 546 (Breyer, J. dissenting) (arguing that statutory silence implies the absence of for-cause
protections).
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Part III

Overview of the Federal
Executive Establishment

T

he federal executive establishment is comprised of several parts. It includes the
Executive Office of the President, the executive departments, and free-standing
agencies of various types—administrations, commissions, and government corporations and other agencies. By far, the most significant component 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
subunits.60 These entities may be identified under a variety of terms such as agency,
bureau, administration, division, or service. Over eighty percent of federal civilian
personnel work in one of the 15 executive departments.61 The remainder work in an
agency in the Executive Office of the President or in some type of agency outside the
executive departments. Agencies in the EOP primarily assist the President in carrying

60. Approximately 1.884 million civilians work in executive departments, as compared to approximately 589,000 in the Postal Service and the Postal Regulatory Commission and 202,500 in other federal
agencies. OMB, 2018 Analytical Perspectives, supra note 34, at 61-62 (2017). For estimates of
the total delegated authority of each agency in the federal executive establishment, see Jennifer Selin,
Who Has the Power? The Accumulation of Delegated Authority in Federal Executive Agencies (May
25, 2018) (working paper, on file with author).
61. Office of Mgmt. & Budget, Exec. Office of the President, Historical Tables,
Budget of the United States Government, Fiscal Year 2018, at Table 16.2 (2017). Of
the federal employees who work in an executive department, over sixty percent work in one of three
departments—Defense, Veterans Affairs, or Homeland Security. Id.
Overview of the Federal Executive Establishment

17

out constitutional or statutory responsibilities, and many EOP employees see it as
their job to work for the President. Other agencies, outside the departments and the
EOP, are not subject to the direction of a departmental Secretary, and often have
characteristics that limit presidential and, to a lesser extent congressional, influence
over agency decision-making and actions.62 These “independent” agencies come in
a variety of forms: administrations, boards, commissions, government corporations,
or other hybrid agencies.63
This section reviews the agencies in the different parts of the 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.64
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.65 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,66 and Congress did not appropriate money for

62. 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.
63. 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.
64. 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.
65. 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 16, at 43-44.
66. 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 (2d ed. 1995).
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Sourcebook of United States Executive Agencies

presidential staff until 1857.67 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.
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, grew to ten executive
departments and a score of powerful independent agencies by 1920.68 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.69 In 1921, Congress enacted the Budget and Accounting Act of 1921, which
created the Bureau of the Budget.70 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.71
The creation of a permanent professional staff formally attached to the presidency did not come until 1939.72 In response to the Great Depression, President
Roosevelt and Congress embarked on a dramatic New Deal domestic program that
substantially expanded 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.73

67. 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 66,
at 17.
68. Among the independent agencies established during this period were the Civil Service Commission,
the Interstate Commerce Commission, the Board of Governors of the Federal Reserve System, and the
Federal Trade Commission.
69. Moe Report, supra note 1, at 4-5; Louis Fisher, Presidential Spending Power 31 (1975).
70. Pub. L. No. 67-13, 42 Stat. 20 (1921).
71. Short, supra note 24, 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 66, at 32.
72. 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).
73. Historical Statistics of the United States 5-127 (Carter et al. eds., 2006).
Overview of the Federal Executive Establishment

19

With New Deal expansion, however, came concerns about management.74 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.75 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 1939.76 Reorganization Plan No. 1 formally created the EOP in 1939.77 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.78
1. Current Structure of the EOP
The EOP is best understood not as an agency in its own right, but as a warehouse
that contains many distinct agencies and offices. Since its creation, the EOP has included anywhere from three to 17 presidential staff agencies.79 Every President since
Roosevelt inherited an EOP and White House Office staff structure from previous
administrations. Some aspects of the existing 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 and eliminating or merging others.80 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.81 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
74. See Joanna L. Grisinger, The Unwieldy American State: Administrative Politics
Since the New Deal 17-31 (2012) (providing an account of criticisms of the administrative state
after New Deal expansion).
75. Burke, supra note 66, at 6.
76. 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 66, at 7; Hart, supra note 66, at 28.
77. 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. No. 76-19, 53 Stat. 562-3 (1939).
78. 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).
79. See Relyea, CRS, supra note 76, at 12-24 (providing a comprehensive list of EOP agencies created,
reorganized, and eliminated since 1939).
80. 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].
81. Relyea, CRS, supra note 76; Hart, supra note 50, at 66.
20

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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.82 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.83 EOP agencies
also generally lack the structural characteristics such as party balancing limitations
on political appointees or fixed terms and protections from removal that can insulate
entities from presidential control.84 The multi-member boards 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 EOP employees’ primary
loyalty to the President as opposed to their agencies or to Congress. Other federal
employees in agencies located outside of the EOP may have a limited personal loyalty
to the President and may see their work as being more directly tied to congressional
committees and agencies.
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
increase the responsiveness of EOP agencies.85 Presidents may create new units in
the EOP and temporarily use existing appropriated funds to pay for the operations

82. See Selin, supra note 2 (the agencies located within the EOP rank as having the most political
structures in terms of policy).
83. 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).
84. As 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 16.
85. Relyea, CRS, supra note 76; Hart, supra note 66, at 148; Relyea, Executive Office, supra note 65.
Overview of the Federal Executive Establishment

21

of the unit.86 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. Congress has been deferential to presidential choices involving EOP agencies
in the same way that presidents have been reluctant to modify legislative branch
appropriations.
The EOP currently includes 12 units that employ 1,876 persons.87 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.88 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.89 The term “White House” or “White House Staff”
can refer to different entities and persons depending upon the context. Sometimes
86. 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. No. 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 (2017). 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 16, at 82.
87. Office of Mgmt. & Budget, Exec. Office of the President, Budget of the United
States Government, Fiscal Year 2018, 1047-57.
88. See generally Patterson, supra note 83.
89. 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. 3 U.S.C. § 113 (2017).
22

Sourcebook of United States Executive Agencies

the term “White House” is synonymous with the Executive Office of the President.
In other cases, the “White House” means simply the President’s residence, White
House Office, or the White House Office plus a few other units in the EOP such
as the National Security Council.90 For persons working in 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.
Table 1. Entities in the Executive Office of the President
Staff Size
FY 2017

Budget
$Million

Origin

Date

Council of Economic Advisers

28

4

Statute

1946

Council on Environmental Quality

24

3

Statute

1970

Executive Residence

96

13

RO Plan

1939

EOP Component

National Security Council

68

14

RO Plan

1947

Office of Administration

240

101

RO Plan

1977

Office of Management and Budget

465

95

Statute

1921

Office of Federal Procurement Policy

Statute

1974

Office of Information and Regulatory Affairs

Statute

1980

Office of National Drug Control Policy

74

20

Statute

1988

Office of Science and Technology Policy

33

6

Statute

1976

Office of the United States Trade Representative

230

56

Statute

1962

Office of the Vice President

6

25
Executive Order

2008

President’s Intelligence Advisory Board
White House Office
Domestic Policy Council

450

58

RO Plan

1939

Executive Order

1993

Executive Order

2001

Executive Order

1993

Office of National AIDS Policy
Office of Faith Based & Neighborhood
Partnerships
Office of Social Innovation & Civic
Participation
National Economic Council
Office of Cabinet Affairs

90. 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 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 83, at 65.
Overview of the Federal Executive Establishment

23

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

Staff Size
FY 2017

Budget
$Million

Origin

Date

Executive Order

2009

Office of Communications
Office of Digital Strategy
Office of the First Lady
Office of Legislative Affairs
Office of Management and Administration
Office of Public Engagement &
Intergovernmental Affairs
Office of Public Engagement
Office of Intergovernmental Affairs
Office of Urban Affairs
Office of Scheduling and Advance
Office of the Staff Secretary
Oval Office Operations
Presidential Personnel Office
White House Counsel
Note: RO Plan indicates agency originated as part of a Reorganization Plan. Date is the year when the
unit became a part of the EOP. While President Bush renamed it in 2008, some form of the President’s
Intelligence Advisory Board existed in every presidential administration since Eisenhower, except Carter.
For information on White House Office structure, see White House, Executive Office of the President, www.
whitehouse.gov/administration/eop (last visited Oct. 30, 2017); Relyea, CRS, supra note 17; Hart, supra
note 7, at 242-44; see also Office of Mgmt. & Budget, Exec. Office of the President, Budget of the
United States Government, Fiscal Year 2018, 1047-57. 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, but these two subunits are not included elsewhere in the Sourcebook
because they do not fall within the agency subunit classification scheme identified supra, Part II, A.

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
(1962), 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 became a part of the EOP 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 stemming originally from the Employment Act of 1946). Congress also added
some partly as symbolic responses to national policy issues requiring presidential

24

Sourcebook of United States Executive Agencies

attention (e.g., Council on Environmental Quality).91 Other agencies aimed to help
presidents control centralized administrative processes such as budgets and legislative
clearance (e.g., Office of Management and Budget).92 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).93
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 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 the number of White House employees and scholarly analyses noting
the management challenges of the burgeoning presidential staff.94 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.”95
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.96 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.97 The title “czar” has been attached
to administration officials at least since the Franklin Delano Roosevelt (FDR) Administration.98 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
91. 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 16, at 178.
92. Moe Report, supra note 1, at 24.
93. Andrew Rudalevige, Managing the President’s Program: Presidential Leadership
and Legislative Policy Formation (2002).
94. Id. at 195.
95. Id. at 197 (quoting National Academy of Public Administration, A Presidency for
the 1980s 17 (1980)).
96. 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 & Justin S. Vaughn, Revolt Against the Czars: Why Barack Obama’s Staffing Critics Are
(Mostly) Wrong, 32 Presidency Res. Group Rep. 8 (2010).
97. Barbara L. Schwemle, et al., Cong. Research Serv., R40856, The Debate Over
Selected Presidential Assistants and Advisors: Appointment, Accountability, and
Congressional Oversight (2011).
98. Id. at 4.
Overview of the Federal Executive Establishment

25

through the red tape” or “ensure coordinated effort.”99 For example, in 2014, President Obama named an “Ebola Czar” to coordinate the government’s comprehensive
response to the Ebola epidemic.100 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, when officials were lampooned in a cartoon in the Evening Star wearing crowns and robes.101
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, and Congress ultimately enacted legislation to create
a new executive department.102 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.103 While some officials named to coordinate policy on the President’s behalf
are Senate-confirmed political appointees, a number of such officials 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 plausibly should be nominated and confirmed, and
99. Id. at 6.
100. See Tanya Somanader, President Obama Names Ron Klain to Coordinate the U.S. Response to
Ebola, White House, Oct. 17, 2014, https://obamawhitehouse.archives.gov/blog/2014/10/17/
president-obama-names-ron-klain-coordinate-us-response-ebola; Juliet Eilperin & Lena H. Sun, Ebola
Czar Ron Klain to Leave Feb. 15 after Leading U.S. Response to Outbreak, Wash. Post, Jan. 29, 2015,
https://www.washingtonpost.com/national/health-science/ebola-czar-ron-klain-to-leave-feb-15-after-leading-us-response-to-outbreak/2015/01/29/aa9c503c-a0d7-11e4-b146-577832eafcb4_story.
html?utm_term=.cf607d691372.
101. Schwemle, supra note 97, at 3 (the cartoon, drawn by Clifford Kennedy Berryman and published on September 7, 1942, depicted Leon Henderson, Donald Nelson, and Emory S. Land wearing
crowns and ermine-trimmed robes).
102. Elizabeth Becker, Senator Insists Ridge Testify Before Congress, N.Y. Times, April 5, 2002, http://
www.nytimes.com/2002/04/05/us/senator-insists-ridge-testify-before-congress.html. Ridge was also
criticized for poor performance. Harold C. Relyea, Organizing for Homeland Security, 33 Pres. Stud.
Q. 602 (2003).
103. James P. Pfiffner, President Obama’s White House Czars, 32 Presidency Res. Group Rep. 5
(2010) [hereinafter Pfiffner, Obama Czars]; Villalobos & Vaughn, supra note 96.
26

Sourcebook of United States Executive Agencies

critics worry that the naming of White House officials in visible policy coordinating
roles is a means of bypassing the Senate confirmation process.104
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 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.105 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.106 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.107 It becomes harder for presidents to recruit the best talent
from the private sector if White House aides repeatedly overrule agency heads. 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 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
104. E.g., Mark J. Rozell & Mitchel A. Sollenberger, Policy Czars already have too much power. Trump
would make that worse, Wash. Post, Mar. 30, 2016, https://www.washingtonpost.com/news/in-theory/wp/2016/03/30/policy-czars-already-have-too-much-power-trump-would-make-that-worse/?utm_
term=.2f68891db411.
105. Pfiffner, Obama Czars, supra note 103, at 5.
106. 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).
107. Pfiffner, Obama Czars, supra note 103, at 5-7.
Overview of the Federal Executive Establishment

27

“Cabinet” departments. The number of executive departments has varied over time
with the creation of new departments and with the reorganization of old departments
into new configurations. The first Congress created the first executive departments,
Treasury, State, and War, in 1789.108 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.109 In 1849, Congress created the Department of the Interior,
colloquially known then as the “Department of Everything Else,” to assume many of
these oddly fitting functions.110 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.111 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 2017 and 1960 (or later if the department was created
after 1960), for reference.

108. 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.
109. 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 Publishing Office. Id. at 35. Three of these are located in the legislative
branch. Other early agencies include the Board of Supervising Inspectors (created in 1852 to regulate
steamboat safety) and the U.S. Mint. See Jerry L. Mashaw, Creating the Administrative Constitution – The Lost One Hundred Years of American Administrative Law (2012).
110. 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); Short, supra note 24, at 472.
111. See Short, supra note 24, 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 response to pressure from the United States Agricultural Society, the Department of
Education in response to pressure from the National Association of School Superintendents, and the Department of Labor in response to the Knights of Labor. Id. Congress also created other smaller agencies
during this period in response to public pressure from clients. Id.; see also Fenno, supra note 110, at 24.
28

Sourcebook of United States Executive Agencies

Table 2. United States Executive Departments and Prominent Subunits
Date

Dept.

Prominent Subunits

1960

Political Appointeesa
Emp.
% App.

Total App.
Emp.
% App.

PAS

PA

NA

SC

Total

1789

STAT

Arms Control and International
Security; Civilian Security,
Democracy, and Human Rights;
Economic Growth, Energy, and
Environment; Political Affairs;
Public Diplomacy and Public
Affairs; United States Agency for
International Development

13,126
0.03%

265

4

38

123

430

274
37,972
0.01%

1789

TRS

Alcohol, Tobacco Tax and Trade
Bureau; Bureau of Engraving and
Printing; Bureau of the Fiscal
Service; Community Development
Financial Institutions Fund;
Financial Crimes Enforcement
Network; Internal Revenue Service;
Office of the Comptroller of
Currency; U.S. Mint

92,109
0.001%

31

3

36

56

126

96
77,318
0.001%

1789,
1947

DOD

Air Force; Army; Combatant
Commands; Defense Advanced
Research Projects Agency;
Defense Commissary Agency;
Defense Contract Audit Agency;
Defense Contract Management
Agency; Defense Field Activities;
Defense Finance and Accounting
Service; Defense Health Agency;
Defense Information Systems
Agency; Defense Intelligence
Agency; Defense Legal Services
Agency; Defense Logistics
Agency; Defense POW Agency;
Defense Security Cooperation
Agency; Defense Security Service;
Defense Threat Reduction Agency;
Joint Chiefs of Staff; Joint
Improvised-Threat Defeat Agency;
Missile Defense Agency; National
Geospatial-Intelligence Agency;
National Reconnaissance Office;
National Security Agency; Navy;
Pentagon Force Protection Agency

737,855
0.0003%

52

0

77

109

238

159
1,036,754
0.0004%

1870

DOJ

Bureau of Alcohol, Tobacco,
Firearms, and Explosives;
Bureau of Prisons; Community
Oriented Policing Services; Drug
Enforcement Administration;
Executive Office for U.S. Attorneys;
Executive Office for U.S. Trustees;
Federal Bureau of Investigation;
Foreign Claims Settlement
Commission; Interpol; Office for
Access to Justice; Office of Justice
Programs; Office on Violence
Against Women; U.S. Marshals
Service; U.S. Parole Commission

117,127
0.003%

209

14

55

55

333

331
31,035
0.01%

Overview of the Federal Executive Establishment

29

Table 2. United States Executive Departments and Prominent Subunits
Date

Dept.

Prominent Subunits

Political Appointeesa
Emp.
% App.

1960
Total App.
Emp.
% App.

PAS

PA

NA

SC

Total

1849

INT

Bureau of Indian Affairs; Bureau
of Indian Education; Bureau of
Land Management; Bureau of
Ocean Energy Management;
Bureau of Reclamation; National
Park Service; Office of Insular
Affairs; Office of Surface Mining
Reclamation and Enforcement;
Special Trustee for American
Indians; U.S. Fish and Wildlife
Service; U.S. Geological Survey

71,057
0.001%

17

0

37

52

106

111
53,257
0.002%

1862,
1889

USDA

Agricultural Research Service;
Agricultural Marketing Service;
Animal and Plant Health
Inspection Service; Center for
Nutrition Policy and Promotion;
Economic Research Service; Farm
Service Agency; Food Safety
and Inspection Service; Foreign
Agricultural Service; Food and
Nutrition Service; Forest Service;
Grain Inspection, Packers, and
Stockyards Administration;
National Agricultural Library;
National Agricultural Statistics
Service; National Institute of
Food and Agriculture; Natural
Resources Conservation Service;
Risk Management Agency; Rural
Business Cooperative Service;
Rural Housing Service; Rural
Utilities Service

96,591
0.002%

14

2

48

165

229

96
94,904
0.001%

1903,
1913

COM

Bureau of Economic Analysis;
Bureau of Industry and Security;
Bureau of the Census; Economic
and Statistics Administration;
Economic Development
Administration; International
Trade Administration; Minority
Business Development Agency;
National Institute of Standards
and Technology; National
Telecommunications and
Information Administration;
National Oceanic and Atmospheric
Administration; National Technical
Information Service; U.S. Patent
and Trademark Office

44,704
0.005%

21

1

39

165

223

116
33,070
0.004%

30

Sourcebook of United States Executive Agencies

Table 2. United States Executive Departments and Prominent Subunits
Date

Dept.

Prominent Subunits

Political Appointeesa
Emp.
% App.

1960
Total App.
Emp.
% App.

PAS

PA

NA

SC

Total

1913

DOL

Bureau of International Labor
Affairs; Bureau of Labor Statistics;
Employee Benefits Security
Administration; Employment
and Training Administration;
Occupational Safety and Health
Administration; Mine Safety and
Health Administration; Office of
Disability Employment Policy;
Office of Federal Contract
Compliance Programs; Office of
Labor-Management Standards;
Office of Workers’ Compensation
Programs; Pension Benefit
Guaranty Corporation; Veterans’
Employment and Training Service;
Wage and Hour Division; Women’s
Bureau

15,766
0.008%

16

2

26

88

132

46
7,268
0.01%

1965

HUD

Center for Faith-Based and
Community Initiatives; Community
Planning and Development; Fair
Housing and Equal Opportunity;
Federal Housing Administration;
Federal Housing Finance Board;
Field Policy and Management;
Government National Mortgage
Association; Office of Federal
Housing Enterprise Oversight;
Office of Healthy Homes and Lead
Hazard Control; Public and Indian
Housing

8,061
0.01%

13

0

28

41

82

95
14,940
0.01%

1966

DOT

Federal Aviation Administration;
Federal Highway Administration;
Federal Motor Carrier Safety
Administration; Federal Railroad
Administration; Federal Transit
Administration; Maritime
Administration; National Highway
Traffic Safety Administration;
Pipeline and Hazardous Materials
Safety Administration; Saint
Lawrence Seaway Development
Corporation

55,172
0.002%

22

2

28

39

91

63
59,803
0.001%

1977

DOE

Electricity Delivery and Energy
Reliability; Energy Efficiency and
Renewable Energy; Environment,
Health, Safety, and Security;
Environmental Management;
Federal Energy Regulatory
Commission; Fossil Energy;
Indian Energy Programs; National
Nuclear Security Administration;
Nuclear Energy; Regional Power
Administrations; U.S. Energy
Information Administration

15,153
0.009%

21

0

33

83

137

150
21,557
0.01%

Overview of the Federal Executive Establishment

31

Table 2. United States Executive Departments and Prominent Subunits
Date

Dept.

Prominent Subunits

Political Appointeesa
Emp.
% App.

1960
Total App.
Emp.
% App.

PAS

PA

NA

SC

Total

1979

DOED

Center for Faith-Based Community
Initiatives; Federal Student Aid;
Institute of Education Sciences;
Office of Career, Technical,
and Adult Education; Office
of Elementary and Secondary
Education; Office of English
Language Acquisition; Office of
Innovation and Improvement;
Office of Special Education and
Rehabilitative Services; Office of
Vocational and Adult Education;
Risk Management Service

4,362
0.04%

15

2

20

123

160

92
7,364
0.01%

1953,
1980

HHS

Administration for Children and
Families; Administration for
Community Living; Agency for
Healthcare Research and Quality;
Agency for Toxic Substances and
Disease Registry; Centers for
Disease Control and Prevention;
Center for Faith-Based and
Neighborhood Partnerships;
Centers for Medicare and
Medicaid Services; Food and Drug
Administration; Health Resources
and Services Administration;
Indian Health Service; National
Institutes of Health; Substance
Abuse and Mental Health Services
Administration

86,552
0.002%

18

2

80

80

180

196
155,662
0.001%

1988

DVA

Board of Veterans Appeals;
National Cemetery Administration;
Veterans Benefits Administration;
Veterans Health Administration

373,149
0.0001%

11

4

10

11

36

32
259,406
0.0001%

2002

DHS

Citizenship and Immigration
Services; Domestic Nuclear
Detection Office; Federal
Law Enforcement Training
Center; Transportation Security
Administration; U.S. Coast
Guard; U.S. Customs and Border
Protection; U.S. Immigration and
Customs Enforcement; U.S. Secret
Service

191,644
0.001%

17

7

50

82

156

200
152845
0.001%

Note: 2016 Plum Book, supra note 19.(providing data on Senate-confirmed political appointees (PAS) and other
presidential appointments not requiring Senate confirmation); OPM, FedScope, supra note 51. Some subunits are legally or
traditionally considered “independent” (e.g., Federal Energy Regulatory Commission) yet are statutorily defined as existing
within a department. As such, those entities are included as prominent subunits in this table and elsewhere. See supra
note 52. The final column includes data on the total number of appointees, employees, and percentage appointed in 1960
unless the department was created after 1960, in which case the data come from the next Plum Book published after their
creation (i.e., 1968 for HUD and DOT; 1980 for DOE, DOED, and HHS; 1992 for DVA; and 2004 for DHS). Employment data
from the earlier period came from U.S. Civil Service Commission/Office of Personnel Management, Employment and Trends,
various years.
a
Letter codes that denote the type of appointment are as follows: PAS = Presidential Appointment with Senate
Confirmation; PA = Presidential Appointment (without Senate confirmation); NA = Noncareer Appointment; SC = Schedule
C Excepted Appointment.

32

Sourcebook of United States Executive Agencies

These departments were not created out of whole cloth.112 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 federal government (finance, foreign affairs, national
defense) are embodied in executive departments, but so are some less obvious functions (agriculture, education, urban policy). The earliest departments developed out
of existing administrative structures carrying over from the government under the
Articles of Confederation.113 Other departments evolved from previously administered federal government programs and agencies. For example, the Department of
Agriculture emerged from an existing independent agricultural agency created more
than twenty years earlier. In the twentieth century, the pattern remained the same. The
Department of Labor superseded the Bureau of Labor (1888). 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.114 Most recently, Congress created
the Department of Homeland Security by combining 22 separate federal agencies,
including the Coast Guard, Federal Emergency Management Agency, and the former
Immigration and Naturalization Service, into one new department.115
There is no fundamental constitutional or management principle guiding which
agencies are departments and which agencies are sub-department bureaus or agencies
located outside of the departments. 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.116 In 1966, Congress enacted legislation
creating a new department that was intended to address transportation problems by
consolidating existing programs and 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,
112. Fenno, supra note 110, at 22.
113. See Short, supra note 24, at 35.
114. Department of Veterans Affairs Act, Pub. L. No. 100-527, 102 Stat. 2635 (1988).
115. Homeland Security Act of 2002, Pub. L. No. 107-296, 116 Stat. 2135 (2002).
116. The first bill proposing the creation of a federal Department of Transportation was introduced in
1890. Seidman, supra note 16, at 174.
Overview of the Federal Executive Establishment

33

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, illustrating that choices about which functions get grouped together in one department
or agency reflect 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.117 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; and in 2018, the Trump Administration
announced a government reorganization proposal, which included changes to the
Departments of Agriculture, Energy, Health and Human Services, Homeland Security, Housing and Urban Development, Interior, State, Treasury, Transportation,
and Veterans Affairs.118
1. Executive Departments and Other Executive Agencies Compared
The primary difference between an executive department and a free-standing
administration is symbolic. Department status is conferred to confirm the importance
of certain constituencies (farmers, business, labor, veterans) or to 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. When presidents name other officials as
members of the Cabinet, this does not change agency features. It only provides invitations to Cabinet meetings. 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 decision-making body, and in-

117. Lewis, Agency Design, supra note 16.
118. Press Release, White House Office of the Press Secretary, President Obama Announces Proposal
to Reform, Reorganize and Consolidate Government (Jan. 13, 2012), http://www.whitehouse.gov/
the-press-office/2012/01/13/president-obama-announces-proposal-reform-reorganize-and-consolidate-gov. The Trump Administration reform proposal also included changes to the structure and/
or functions of the Environmental Protection Agency, General Services Administration, National
Science Foundation, Nuclear Regulatory Commission, Office of Personnel Management, and Social
Security Administration. Office of Mgmt. & Budget, Exec. Office Of The President,
Delivering Government Solutions in the 21st Century: Reform Plan and Reorganization Recommendations (2018), https://www.whitehouse.gov/wp-content/uploads/2018/06/
Government-Reform-and-Reorg-Plan.pdf.
34

Sourcebook of United States Executive Agencies

clusion in the Cabinet has little direct influence on presidential policymaking.119 The
categorization of an agency as a department also provides political justification for a
department-like management structure in terms of the number of bureaus, Assistant,
Under, and Deputy Secretaries, and other officials. For example, once the Department
of Defense added a Deputy Secretary for the first time in 1949, other departments
followed suit soon thereafter.120
The main structural difference between executive departments and other agencies,
where such differences exist, is in placement, pay, and number 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 (EPA) 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).121 Second, executive departments tend to have more
political appointees than other agencies, even though many executive departments
are significantly smaller than some agencies outside of the departments. One of the
smaller executive departments is Education, which employs about 4,300 employees.
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 15,000
employees, and the Social Security Administration (SSA) has over 64,000 employees.
In contrast to the Department of Education, which has 160 political appointees, the
EPA, NASA, and SSA have 64, 16, and 17, respectively.
2. The Structure of Executive Departments
From the earliest days of the Republic, 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
119. Moe Report, supra note 1; Fenno, supra at 110. Of course, the Presidential Succession Act
does include cabinet members in the line of succession. 3 U.S.C. § 19(d)(1) (2017) (“If by reason of
death, resignation, removal from office, inability or failure to qualify, [there is no Speaker of the House
or President pro tempore of the Senate to act as President], then the officer of the United States who
is highest on the following list, and who is not under disability to discharge the powers and duties of
the office of President shall act as President: Secretary of State, Secretary of the Treasury, Secretary of
Defense, Attorney General, Secretary of the Interior, Secretary of Agriculture, Secretary of Commerce, Secretary of Labor, Secretary of Health and Human Services, Secretary of Housing and Urban
Development, Secretary of Transportation, Secretary of Energy, Secretary of Education, Secretary of
Veterans Affairs, Secretary of Homeland Security”).
120. Paul C. Light, Thickening Government: Federal Hierarchy and the Diffusion of
Accountability 105 (1995) (hereinafter Light, Thickening).
121. 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(b)(1) (2017).
Overview of the Federal Executive Establishment

35

boards during the pre-Constitution period.122 Today, a team of presidential appointees requiring Senate confirmation, and their staffs, manage each of the departments.
Modern department leadership currently includes from 11 to 52 Senate-confirmed
positions,123 including the Secretary, a Deputy Secretary, and a number of Under
and Assistant Secretaries. Under these officials are chiefs of staff and special advisors,
but 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.124
These members of the president’s administration preside over distinct sub-department agencies. The modern executive departments are comprised of anywhere
from three to 40 organizationally distinct bureaus, with most housing 10-15.125
“Bureau” is a general term that refers to many different sub-units within larger departments, entities 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.126
The autonomy of department subunits 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.127 Large bureaus are also generally headed by
Senate-confirmed political appointees, making bureau chiefs accountable to con122. See Short, supra note 24, 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 departments).
123. This count includes some PAS positions in the Departments of State and Justice. There are a high
number of Senate-confirmed appointees in the State Department (265) due to the requirement that
all ambassadors be confirmed by the Senate. The high number of Senate-confirmed appointees in the
Department of Justice (209) is due to the requirement that all U.S. Attorneys, as well as U.S. Marshals,
must be confirmed by the Senate.
124. Light, Thickening, supra note 120.
125. 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, 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 17.
126. Departments referred to as “holding company” departments include Interior, Defense, Commerce, Health and Human Services, Homeland Security, and Transportation. See Moe Report, supra
note 1, at 11; Fenno, supra note 110, at 228-29; J. Leiper Freeman, The Political Process—
Legislative Committee Relations (1958); Seidman, A Typology, supra note 108, at 38.
127. 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 110, at 228-29. Moe Report, supra note 1, at 29.
36

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gressional committees as well as to higher departmental officials.128 Some, though
a minority, are headed by political appointees who serve for fixed terms of varying
lengths but are not protected from removal by for-cause provisions.129 Of course,
political appointees serving fixed terms may leave their jobs before the end of the
term, but fixed terms can serve as a symbolic source of autonomy from political actors.
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 (in the Department of Commerce) traces its
history to the constitutional requirement for a decennial census.130 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.131 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 freedom from administration political appointees
and other members of Congress.132
When deciding to create new departments or agencies, Congress can specify a
few or many of the details of internal agency organization.133 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.134 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.135 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
128. Freeman, supra note 126.
129. See infra Part IV.C.1 (discussing protections against removal). Similarly, although not in the Executive Branch, but nevertheless held to be a Head of a Department for the purposes of the Appointments Clause, 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. 2012), reh’g en banc denied, 2012 U.S. App.
LEXIS 18230 (D.C. Cir. 2012).
130. U.S. Const. art. I, § 2.
131. 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, http://www.usphs.gov/aboutus/history.
aspx (last visited May 22, 2018).
132. See Freeman, supra note 126; Herbert Kaufman, The Administrative Behavior of
Federal Bureau Chiefs 170 (1981); Schick, supra note 29, at 522.
133. Moe Report, supra note 1.
134. Compare 6 U.S.C. §§ 101-63 (2017) (referencing 37 bureaus, offices, and agencies to be moved or
created within the Department of Homeland Security), with 42 U.S.C. §§ 3501-15d (2017) (referencing only five bureaus, offices, and agencies within the Department of Health and Human Services).
135. See, e.g., Homeland Security Act of 2002, Pub. L. No. 107-296, 116 Stat. 2135.
Overview of the Federal Executive Establishment

37

detail but not the departments of State or War.136 Congress now specifies the internal
organization of federal agencies in greater detail than in the past.137
Statutorily provided details about internal department and agency structures
come from both the organic act creating the agency and subsequent legislative action.138 Congress regularly creates new agencies and bureaus and adds them to existing
departments or agencies. For example, the Dodd-Frank legislation created the Consumer Financial Protection Bureau (2010) and added it to the Federal Reserve System
(1913).139 The decision to place an entity within a larger department or agency can
affect the entity’s decision-making structure and performance.140 In some instances,
placing an entity within a larger agency can create layers of accountability, as the
new bureau has to obtain approval from those higher up in the agency’s hierarchy
before making important policy changes. In other instances, the decision can actually
insulate the entity from political supervision. For example, critics of the Consumer
Financial Protection Bureau argue that the Director of the Bureau enjoys significantly more unilateral power than any other agency, as the structure of the Federal
Reserve System may serve as a layer of protection for the bureau from presidential
or congressional interference, yet the Federal Reserve Board cannot supervise, direct,
or remove the Director.141
Congress also, from time to time, mandates the creation of offices with a particular mission in all federal agencies. A notable example is when Congress mandated the
creation of offices of inspector general in all executive departments in the Inspector
General Act of 1978.142 Other 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, leading to the creation of new
136. Short, supra note 24.
137. Moe Report, supra note 1.
138. 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.
For example, President Nixon created the Environmental Protection Agency through reorganization
plan. Reorganization Plan No. 3 of 1970, 35 Fed. Reg. 15,623, reprinted in 97 Stat. 485 (1970). While
Congress has continued to delegate policymaking authority to the EPA through laws such as the Clean
Water Act and Clean Air Act Amendments, the agency’s structure remains largely unspecified by
statute.
139. See Dodd-Frank Wall Street Reform and Consumer Protection Act, Pub. L. No. 11-203, 124 Stat.
1376 (2010); Jacob E. Gersen, Administrative Law Goes to Wall Street: The New Administrative Process,
65 Admin. L. Rev. 689 (2013) (discussing newer agency structures in financial regulation agencies).
140. See Selin, supra note 2, at 977-78.
141. E.g., PHH Corp. v. Consumer Financial Protection Bureau, 881 F.3d 75 (D.C. Cir. 2018) (en
banc), vacating 839 F.3d 1, 14 (2016); Consumer Financial Protection Bureau v. RD Legal Funding,
2018 WL 3094916 (S.D.N.Y. June 21, 2018).
142. 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, Inspectors General Directory, https://www.ignet.gov/content/inspectors-general-directory
(last visited Oct. 30, 2017).
38

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and similar offices in different agencies across the executive establishment.143 Other
government-wide 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 additional common offices across departments
and agencies (e.g., FOIA offices, faith-based initiatives offices, and equal employment
opportunity or civil rights offices).144 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).145
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 in the depth and placement of political appointees. By far
the largest department is the Department of Defense (DOD), which employs over
700,000 federal civilians, oversees more than one million uniformed military personnel, and utilizes 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 160,000 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. Energy and Labor have close to
130 political appointees, while the smaller Department of Education has closer to 160.
As a percentage of agency employees, Education and HUD have the most political
appointees.146 These differences in numbers of political appointees 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 agency management.147

143. Clinton T. Brass, Cong. Research Serv., RL32388, General Management Laws:
Major Themes and Management Policy Options (2004) [hereinafter Brass, Gen. Mgmt.
Laws].
144. See id. (for a compendium of government-wide managerial mandates).
145. Moe Report, supra note 1, at 28.
146. David E. Lewis, The Politics of Presidential Appointments: Political Control
and Bureaucratic Performance 82 (2008) [hereinafter Lewis, Presidential Appt.].
147. G. Calvin Mackenzie, The Politics of Presidential Appointments (1981); Martin
Tolchin & Susan Tolchin, To the Victor: Political Patronage from the Clubhouse
to the White House (1971) [hereinafter Tolchin & Tolchin, To the Victor]; Martin
Tolchin & Susan Tolchin, Pinstripe Patronage: Political Favoritism from the
Clubhouse to the White House and Beyond (2010) [hereinafter Tolchin and Tolchin,
Pinstripe Patronage]; Domonic A. Bearfield, What Is Patronage? A Critical Reexamination, 69
Pub. Admin. Rev. 64 (2009).
Overview of the Federal Executive Establishment

39

C. Agencies Located Outside of the EOP and Executive Departments
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.148 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 that point, Congress had
episodically created new agencies outside of existing departments. They 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 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.149 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.150 Congress created the ICC as a five-member commission with six-year fixed and
staggered terms, and provided that the President could remove commissioners for

148. 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 24, 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 departments).
149. The ICC was originally within the executive department structure since the original act gave the
Secretary of the 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 16, at 163. Paul P. Van Riper, History of
the United States Civil Service 103-04 (1958).
150. E.g., Marver H. Bernstein, Regulating Business by Independent Commission 23
(1955); Breger & Edles, Independent Agencies, supra note 2, at 32-36 (2015); Jed Handelsman
Shugerman, The Dependent Origins of Independent Agencies: The Interstate Commerce Commission, the
Tenure of Office Act, and the Rise of Modern Campaign Finance, 31 J.L. & Pol. 139 (2015).
40

Sourcebook of United States Executive Agencies

“inefficiency, neglect of duty, or malfeasance in office.”151 The Interstate Commerce
Act stipulated that no more than three 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 (1914).152 The creation of independent regulatory commissions continued
well into the twentieth and twenty-first centuries, with the New Deal of the 1930s
and also the early 1970s being notable for the addition of new commissions.153 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.154 Table 3 provides an overview of agencies that exist outside of the EOP
and executive departments.

151. 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. In 1869, Congress revised the Tenure of Office Act, but still protected
high-ranking officers from presidential removal. Act to Amend the Tenure of Office Act, ch. 154, §
10, 16 Stat. 6 (1869). Repeal of the Tenure of Office Act occurred in 1887 after President Cleveland
challenged it as an unconstitutional limit on the President’s removal power. See Shugerman, supra note
150, at 153-64 (providing a historical account of the Tenure of Office Act).
152. 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 & Edles, Established by Practice, supra
note 2, at 1130-33.
153. See Patrick M. Corrigan & Richard L. Revesz, The Genesis of Independent Agencies, 92 N.Y.U. L.
Rev. 637, 668-75 (2017) (finding some evidence to support the hypothesis that Congress was more
likely to establish agencies with a multi-member structure and specified tenure during the New Deal).
154. 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]. This is not to say that these agencies are never
terminated, just that commissions with fixed terms and party-balancing limitations are substantially
more durable than other agencies. Id. at 396.
Overview of the Federal Executive Establishment

41

Table 3. Overview of Agencies Outside the EOP and Executive Departments
Administrations
Broadcasting Board of
Governors
Central Intelligence
Agency
Environmental
Protection Agency
Federal Housing
Finance Agency
Federal Mediation and
Conciliation Service
General Services
Administration
Office of Acquisition
Policy
Institute of Museum and
Library Services
National Aeronautics
and Space
Administration
National Archives and
Records Administration
National Endowment for
the Arts
National Endowment for
the Humanities
Office of Government
Ethics
Office of Personnel
Management
Office of Special
Counsel
Office of the Director of
National Intelligence
Peace Corps
Small Business
Administration
Social Security
Administration
Trade and Development
Agency

Independent Commissions
(regulatory)

Boards (nonregulatory)

Government
Corporations/Other

Board of Governors of the Federal
Reserve System
Consumer Financial Protection
Bureau
Commodity 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
Corporation
Federal Election Commission
Federal Labor Relations Authority
Federal Maritime Commission
Federal Mine Safety and Health
Review Commission
Federal Trade Commission
Merit Systems Protection Board
National Credit Union
Administration
National Labor Relations Board
National Transportation Safety
Board

Barry Goldwater
Scholarship and
Excellence in Education
Foundation
Chemical Safety and
Hazard Investigation
Board
Election Assistance
Commission
Federal Hospital
Insurance Trust Fund
Board
Federal Old-Age and
Survivors Insurance Trust
Fund and the Federal
Disability Insurance Trust
Fund

Administrative Conference
of the United States
AMTRAK
Corporation for National and
Community Service
Corporation for Public
Broadcasting
Export-Import Bank of
the U.S.
Farm Credit System
Insurance Corporation
Federal Agricultural
Mortgage Corporation
Federal National Mortgage
Association
Legal Services Corporation
Millennium Challenge
Corporation
National Association of
Registered Agents and
Brokers
National Consumer
Cooperative Bank
National Institute of Building
Sciences
Overseas Private Investment
Corporation
Securities Investor
Protection Corporation
State Justice Institute
Tennessee Valley Authority
United States African
Development Foundation
United States Institute of
Peace
United States Postal Service

Nuclear Regulatory Commission
Occupational Safety and Health
Review Commission
Postal Regulatory Commission
Securities and Exchange
Commission
Surface Transportation Board
United States International Trade
Commission

Federal Retirement Thrift
Investment Board
Federal Supplementary
Medication Insurance
Trust Fund Board
Harry S. Truman
Scholarship Foundation
Inter-American Foundation
James Madison Memorial
Fellowship Foundation
Marine Mammal
Commission
Morris K. Udall and
Stewart L. Udall
Foundation
National Mediation Board
Privacy and Civil Liberties
Oversight Board
Puerto Rico Financial
Oversight and
Management Board
Railroad Retirement Board
Social Security Advisory
Board

Regional Agencies
Appalachian Regional
Commission
Delta Regional Authority
Metropolitan Washington
Airports Authority
Northern Great Plains
Regional Authority

Notes: The Consumer Financial Protection Bureau, is not an independent commission. However, because
it is a subunit of an agency classified as an independent regulatory commission (the Federal Reserve),
the Bureau is listed in column 2. 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 opined 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). Because the Administrative Conference of the United States (ACUS) is an agency governed by
a Chairman and advisory board, ACUS does not fit neatly into any category and is thus classified as “Other.”

1. What is an Independent Agency?
The foregoing discussion begs the question of what defines agency independence.
There is no general, widely accepted definition of an independent agency across all
government officials, practitioners, and scholarly disciplines, but this label or defini-

42

Sourcebook of United States Executive Agencies

tion is consequential for both law and politics.155 For some scholars, primarily those
in political science, public administration, and public policy, any agency established
outside the EOP or executive departments is an “independent agency.”156 Thus, under
this definition, the class of independent agencies would include all administrations,
commissions, and corporations outside the EOP and executive departments, such as
the Environmental Protection Agency and Federal Deposit Insurance Corporation.
It would not, however, include multi-member bodies inside an executive department such as the Federal Energy Regulatory Commission (within the Department
of Energy) or bureaus whose heads have fixed terms such as the Federal Aviation
Administration or Commissioner of the Internal Revenue Service.157
For other scholars, primarily those in law, structural features, particularly fixed
terms with for-cause removal protections (i.e., presidentially appointed agency leaders
cannot be removed except “for-cause,” “inefficiency, neglect of duty, or malfeasance
in office,” or similar language), and not location define independence.158 Court juris-

155. Jacob E. Gersen, Designing Agencies, in Research Handbook on Public Choice and Public Law 347 (Daniel A. Farber & Anne Joseph O’Connell eds., 2010) [hereinafter Gersen, Designing
Agencies]; Breger & Edles, Established by Practice, supra note 2; Datla & Revesz, supra note 2; Angel
Manuel Moreno, Presidential Coordination of the Independent Regulatory Process, 8 Admin. L. J. 468
(1994).
156. David Epstein and Sharyn O’Halloran, Delegating Powers: A Transaction Cost
Politics Approach to Policy Making Under Separate Powers (1999); Lewis, Agency
Design, supra note 16; Seidman, supra note 16.
157. See 42 U.S.C. § 7171(a) (2017) (“There is established within the Department an independent
regulatory commission to be known as the Federal Energy Regulatory Commission.”); 49 U.S.C. §
106(b) (2017) (the Federal Aviation Administrator has a fixed, five-year term); 26 U.S.C. § 7803(a)(1)
(B) (2017) (the Commissioner of the Internal Revenue Service serves for a fixed, five-year term).
158. 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 & Robert B. Thompson, The Future of Agency Independence, 63 Vand. L. Rev. 599, 610 (2010); Neal Devins, Political Will and the Unitary Executive:
What Makes an Independent Agency Independent, 15 Cardozo L. Rev. 273 (1993) [hereinafter
Devins, Political Will]; Gersen, Designing Agencies, supra note 155, at 347; Elena Kagan, Presidential
Administration, 114 Harv. L. Rev. 2247 (2001); Saikrishna B. Prakash, Independence, Congressional
Weakness, and the Importance of Appointment: The Impact of Combining Budgetary Autonomy with
Removal Protection, 125 Harv. L. Rev. 1822, 1824 (2012); Paul R. Verkuil, The Purposes and Limits
of Independent Agencies, 1988 Duke L.J. 257 (1988).
Overview of the Federal Executive Establishment

43

prudence on the issue also focuses overwhelmingly on these structural features.159 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 30 agencies and subunits with administrators or directors who serve
for a fixed term and are protected from removal by for-cause provisions, including
multi-member agencies located within executive departments such as the National
Indian Gaming Commission160 and agencies headed by single individuals located
outside of executive departments like the Office of Special Counsel.161
Statutory law and executive materials also vary in their consideration of what
constitutes agency independence. For example, Title 5 defines an “independent
establishment” as any establishment in the executive branch, other than the Postal
Service or Postal Regulatory Commission, which is not an executive department,
military department, government corporation, or part thereof.162 The Paperwork
Reduction Act of 1980 lists 19 independent regulatory agencies and, while the
majority of agencies listed are commissions for-cause protections, the statute also
classifies the Department of the Treasury’s Offices of Financial Research and the
Comptroller of the Currency as independent regulatory agencies.163 Furthermore,
the statute notes that other agencies might be classified as independent by providing
that the group includes, “any other similar agency designated by statute as a Federal
independent regulatory agency or commission.”164 Executive Order 12,866, relating
to regulatory planning and review, adopts this statutory definition of independent
regulatory agency.165

159. E.g., Free Enter. Fund v. Pub. Co. Accounting Oversight Bd., 561 U.S. 477 (2010) (addressing
the removal provisions for the Public Company Accounting Oversight Board); Buckley v. Valeo, 424
U.S. 1, 135-42 (1976) (discussing agency independence in the context of the President’s removal
power); 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); PHH Corp.
v. Consumer Financial Protection Bureau, 881 F.3d 75 (D.C. Cir. 2018) (en banc), vacating 839 F.3d
1, 14 (D.C. Cir. 2016) (addressing the constitutionality of an independent agency headed by a single
director); In re Aiken County, 645 F.3d 428, 439 (D.C. Cir. 2011) (recognizing for-cause protections
as a primary indicator of an independent agency); Collins v. Federal Housing Finance Agency, 254 F.
Supp. 3d 841, 847-848 (S.D. Tex. 2017) (recognizing the constitutionality of an “independent agency”
headed by a single individual protected from removal but for cause); Consumer Financial Protection
Bureau v. Future Income Payments, 252 F. Supp. 3d 961, 971 (C.D. Cal. 2017) (providing that there is
no textual basis in the Constitution for concluding independent agencies must be led by multi-member commissions).
160. 25 U.S.C. § 2704(b)(6) (2017).
161. 5 U.S.C. § 1211(b) (2017).
162. Id. § 104.
163. 44 U.S.C. § 3502(5) (2017).
164. Id.
165. Executive Order 12,866, Regulatory Planning and Review §3(b), 58 Fed. Reg. 51735 (Sept. 30,
1993).
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Table 4 includes all multi-member bodies whose members have fixed terms.166
The table lists each such agency and subunit and whether the entity includes other
features scholars have generally associated with independent agencies. The table
lists 68 such entities, 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 agencies.167 Interestingly, some of the traditional 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.168
Table 4. Statutory Characteristics of Multi-Member Bodies with Fixed Terms
Agency

Explicit
Outside
“For-Cause”
Exec. Dept. Protections

Explicit
Staggering
of Terms

AMTRAK

X

Barry Goldwater Scholarship and
Excellence in Education Foundation

X

X

Board of Governors of Federal
Reserve

X

X

Board of Veterans Appeals

Party
Balancing

Quorum
Rules

X

X

X

Chemical Safety and Hazard
Investigation Board

X

Commodity Futures Trading
Commission

X

X
X

X

166. We classified an agency as a multi-member body if any of the voting members of the board or
commission are nominated by the President and confirmed by the Senate. Additionally, if a single
individual manages the day-to-day operations of an entity, but reports to a board of governors or other
similar body, we classified that entity as a multi-member body.
167. 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 155, at 475-78.
168. However, courts have recognized implicit “for-cause” protections. See, e.g., Free Enter. Fund
v. Pub. Co. Accounting Oversight Bd., 561 U.S. 477 (2010); 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 v. United States, 295 U.S. 602 (1935) (“for-cause”
provisions are constitutional in predominately quasi-legislative or quasi-judicial agencies); SEC v.
Blinder, Robinson, & Co., 855 F.2d 677 (10th Cir. 1988) (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).
Overview of the Federal Executive Establishment

45

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

Explicit
Outside
“For-Cause”
Exec. Dept. Protections

Explicit
Staggering
of Terms

Party
Balancing

Quorum
Rules

X

X

X
X

Consumer Product Safety
Commission

X

Corporation for National and
Community Service

X

X

Corporation for Public Broadcasting

X

X

Defense Nuclear Facilities Safety
Board

X

X

X

Election Assistance Commission

X

X

X

Equal Employment Opportunity
Commission

X

Export-Import Bank of the U.S.

X

Farm Credit Administration

X

Farm Credit System Insurance
Corporation

X

X

X

X

X

X

X

X

X

X

X

X

X

Federal Agricultural Mortgage
Corporation

X

X

X

X

Federal Communications
Commission

X

X

X

Federal Crop Insurance Corporation

X

Federal Deposit Insurance
Corporation

X

Federal Election Commission

X

Federal Energy Regulatory
Commission

X
X

X

X

X

X

X

Federal Hospital Insurance Trust
Fund Board

X

Federal Labor Relations Authority

X

X

X

Federal Maritime Commission

X

X

X

Federal Mine Safety and Health
Review Commission

X

X

Federal Old-Age and Survivors
Insurance Trust Fund

X

Federal Retirement Thrift
Investment Board

X

Federal Supplementary Medical
Insurance Trust Fund Board

X

Federal Trade Commission

X

X

X

X
X

X

X

X

Foreign Claims Settlement
Commission

X

X

46

X

X

X

X

X

X

Financial Stability Oversight Council

Harry S. Truman Scholarship
Foundation

X

X

X

X
X

Sourcebook of United States Executive Agencies

Table 4. Statutory Characteristics of Multi-Member Bodies with Fixed Terms
Agency
Inter-American Foundation

Explicit
Outside
“For-Cause”
Exec. Dept. Protections
X

Internal Revenue Service Oversight
Board

X

James Madison Memorial
Fellowship Foundation

X

Legal Services Corporation

X

Marine Mammal Commission

X

Merit Systems Protection Board

X

X

Metropolitan Washington Airport
Authority

X

X

Millennium Challenge Corporation

X

Morris K. Udall Scholarship
Foundation

X

National Association of Registered
Agents and Brokers

X

X

National Consumer Cooperative
Bank

X

X

National Credit Union
Administration

X

National Indian Gaming
Commission

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

National Institute of Building
Sciences

X

National Labor Relations Board

X

X

X

National Mediation Board

X

X

X

National Transportation Safety
Board

X

X

X
X
X

X

X

X

X

X

Nuclear Regulatory Commission

X

X

X

Occupational Safety and Health
Review Commission

X

X

X

X

Overseas Private Investment
Corporation

X

X

X

Postal Regulatory Commission

X

Privacy and Civil Liberties Oversight
Board

X

Puerto Rico Financial Oversight and
Management Board

X

X

X
X

X

Railroad Retirement Board

X

Securities and Exchange
Commission

X

X

Securities Investor Protection
Corporation

X

X

Overview of the Federal Executive Establishment

X

X
X

47

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

Explicit
Outside
“For-Cause”
Exec. Dept. Protections

Explicit
Staggering
of Terms

Party
Balancing

Quorum
Rules

X

X

X

X

X

X

Social Security Advisory Board

X

State Justice Institute

X

X

Surface Transportation Board

X

X

Tennessee Valley Authority

X

X

United States African Development
Foundation

X

X

X

X

United States Institute of Peace

X

X

X

X

United States International Trade
Commission

X

X

X

X

X

United States Parole Commission
United States Postal Service

X

X

X

X

X

X

X

X

Note: The EEOC, FCC, and FLRA 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. No. 92-261, § 8(d) (1972) (EEOC); Pub. L. No. 97-259, § 103(a) (1982) (FCC); Pub. L. No. 98-224, § 3(b)
(1984) (FLRA).

While Table 4 focuses on multi-member bodies, there are also agencies and
bureaus located throughout the executive establishment that are led by a single presidentially appointed individual who serves a fixed term. These terms may coincide
with presidential terms of office or overlap presidential administrations and, while
most of the individuals who serve in these positions may lack for-cause removal
protections, four agency statutes provide for fixed terms with for-cause provisions.169
Table 5 lists those agencies and bureaus that are not multimember bodies and are led
by a presidential appointee who serves for a fixed term.
Table 5. Non-Multimember Agencies and Subunits with Statutorily Fixed Terms for
Presidentially Appointed Leaders
Department/Agency

Bureau

Term
Length

Administrative Conference of the
United States

Chairman

5

Board of Governors of the Federal
Reserve System

Director, Consumer Financial Protection Bureau

5

Broadcasting Board of Governors

Chief Executive Officer

3

Department of Agriculture

Director, National Institute of Food and
Agriculture

6

Department of Commerce

Director, Bureau of the Census

5

ForCause

X

169. Hogue & Carey, Cong. Research Serv., R44083, Appointment and Confirmation of
Executive Branch Leadership: An Overview (2015).
48

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Table 5. Non-Multimember Agencies and Subunits with Statutorily Fixed Terms for
Presidentially Appointed Leaders
Term
Length

ForCause

Department/Agency

Bureau

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 Health and Human
Services

Director, Indian Health Service
Surgeon General

4
4

Department of Homeland Security

Commandant of the Coast Guard
Under Secretary of Transportation for Security

4
5

Department of Housing and Urban
Development

Director, Office of Federal Housing Enterprise
Oversight

5

Department of Justice

Director, Community Relations Service
Director, Federal Bureau of Investigation
United States Attorneys
United States Marshals

4
10
4
4

Department of Labor

Commissioner of Labor Statistics

4

Department of the Treasury

Commissioner of Internal Revenue
Comptroller of the Currency
Director of the Mint

5
5
5

Department of Transportation

Administrator, Federal Aviation Administration

5

Federal Housing Finance Agency

Director

5

Institute of Museum and Library
Services

Director

4

National Endowment for the Arts

Chairperson

4

National Endowment for the
Humanities

Chairperson

4

Office of Government Ethics

Director

5

Office of Personnel Management

Director

4

Office of Special Counsel

Special Counsel

5

X

Social Security Administration

Commissioner of Social Security

5

X

X

Note: This list excludes bureaus whose personnel are named by the agency head and have fixed terms. X
indicates that agency statutes include explicit “for-cause” protections against removal.

Recently there has been increased attention to the relative insulation of two
types of entities featured in Tables 4 and 5: those led by a single presidentially appointed individual who serves a fixed term and is protected from removal except
for cause, and those led by one or more individuals who serve a fixed term but are
not protected by for-cause removal provisions. First, discussions of independent
agencies often revolve around the set of multi-member boards and commissions
Overview of the Federal Executive Establishment

49

patterned after the ICC that have for-cause protections against removal and often
have quasi-judicial or quasi-legislative authority. As famously noted by the Supreme
Court in Humphrey’s Executor, these multi-member agencies are a “body of experts
appointed by law and informed by experience,” and the agencies’ structure reduces
the risk of arbitrary decision-making.170 However, four agencies and bureaus are led
by a single presidentially appointed individual who cannot be removed from office
except for-cause (Consumer Financial Protection Bureau, Federal Housing Finance
Agency, Office of Special Counsel, and the Social Security Administration). Some
in both law and politics question whether this structure unconstitutionally permits
these individuals to exercise unilateral power that remains unchecked by the President
or other executive officials.171 The U.S. Supreme Court has never struck down any
statute conferring traditional for-cause protections, in the commission structure or
otherwise,172 yet recent attention to the for-cause removal restrictions placed on the
Director of the Consumer Financial Protection Bureau arose due to the regulatory
and enforcement powers of the agency, as well as its relative insulation from traditional
mechanisms of political control.173
Second, at least 61 agencies and bureaus are led by one or more individuals who
serve a fixed term but are not protected by explicit for-cause removal provisions (19
are led by a single individual). Some of these agencies, like the Securities and Exchange
Commission, were established at a time when legal jurisprudence cast serious doubt

170. 295 U.S. 602, 624 (1935).
171. E.g., PHH Corp. v. Consumer Financial Protection Bureau, 839 F.3d 1, 16 (D.C. Cir. 2016);
Consumer Financial Protection Bureau v. Future Income Payments, 252 F. Supp. 3d 961, 971-75
(C.D. Cal. 2017); Collins v. Federal Housing Finance Agency, 254 F. Supp. 3d 841, 846 (S.D. Tex.
2017); The Bureau of Consumer Financial Protection’s Unconstitutional Design: Hearing Before the
Subcomm. on Oversight and Investigations of the H. Comm. on Financial Services, 115th Cong. (2017)
(statement of Rep. Wagner, Chairwoman, Subcomm. on Oversight and Investigations, H. Comm.
on Financial Services); Administrative Law – Agency Design – Dodd-Frank Act Creates the Consumer
Financial Protection Bureau – Dodd-Frank Act, Pub. L. No. 111-203, 124 Stat. 1376 (2010), 124 Harv.
L. Rev. 2123, 2125 (2011).
172. See PHH Corp. v. Consumer Financial Protection Bureau, 2018 WL 627055, 1 (D.C. Cir. 2018)
(en banc), vacating 839 F.3d 1 (2016) (the Court has only invalidated unusual restrictions such as the
second layer of for-cause protection of the SEC’s Public Accounting Oversight Board and statutes in
which Congress assigned removal power to itself).
173. E.g., PHH Corp. v. Consumer Financial Protection Bureau, 839 F.2d 1, 18-22 (2016); Who’s
Watching the Watchmen? Oversight of the Consumer Financial Protection Bureau: Hearing Before the
Subcomm. On TARP, Financial Services and Bailouts of Public and Private Programs of the H. Comm.
on Oversight and Government Reform, 112th Cong. 77 (2011) (statement of Andrew Pincus) (noting
that the CFPB’s structure “consolidates more power in the director than in the head of any other
agency that regulates private individuals and entities”); Examining the Consumer Financial Protection
Bureau’s Semi-Annual Report to Congress, Reviewing the Bureau’s Operations and Actions Since the Last
Semiannual Report Was Published: Hearing before the S. Comm. on Banking, Housing and Urban Affairs, 114th Cong. 1 (2016) (statement of Sen. Shelby, Sen. Comm. on Banking, Housing and Urban
Affairs) (“I have said many times that regulatory independence should never mean independence from
accountability or vigorous congressional oversight.”).
50

Sourcebook of United States Executive Agencies

on the constitutionality of for-cause protections.174 However, most of the agencies
and bureaus in this category were created at a time when the legal status of for-cause
language was clear. When Congress creates an agency with leadership that serves for a
fixed term, but that leader is not protected by explicit for-cause protections, the President legally may remove the individual from office for any reason.175 Yet any fixed term
often establishes an expected tenure of office, and that expectation may influence the
susceptibility of the appointee to presidential influence. A fixed term may also mean
that an individual serves for more than one presidential administration, as officials are
not required to resign upon changes in administrations. Furthermore, the removal
of an individual before his or her term expires may impose political costs on the
President.176 President Trump’s removal of James Comey as Director of the Federal
Bureau of Investigation (FBI) in 2017 is an illustrative case, as the FBI Director serves
for a 10-year term, but the position is not protected by statutory for-cause language.177

174. Free Enter. Fund v. Pub. Co. Accounting Oversight Bd., 561 U.S. 477, 546-57 (Breyer, J. dissenting); Corrigan & Revesz, supra note 153, at 672 (2017). It is worth noting that, despite explicit
statutory language, commissioners are largely recognized as being protected by for-cause protections.
The Supreme Court has never ruled on the issue, and in the recent Free Enterprise Fund v. Public Co.
Accounting Oversight Board decision, the parties merely stipulated that Commission members could
not be removed except under the Humphrey’s Executor standard of inefficiency, neglect of duty, or
malfeasance in office. 571 U.S. 477, 487 (2010). Some question whether such a stipulation is appropriate. E.g., Free Enter. Fund v. Pub. Co. Accounting Oversight Bd., 561 U.S. 477, 545-548 (Breyer, J.
dissenting); Gary Lawson, Stipulating the Law, 109 Mich. L. Rev. 1191 (2011); Tuan Samahon, A
Whopper of an Assumption in Free Enterprise Fund v. PCAOB, Concurring Opinions (Mar. 8, 2010,
5:09 PM), http://www.concurringopinions.com/archives/2010/03/ a-whopper-of-an-assumption-infree-enterprise-fund-v-pcaob.html.
175. E.g., Dep’t of Transp. v. Ass’n of Am. R.R., 135 S. Ct. 1225, 1232-33 (2015) (citing Office of
Legal Counsel memorandum that recognized Amtrak is not an adjudicatory body and thus its Board
members, who serve fixed terms, are removable by the President without cause); Shurtleff v. United
States, 1829 U.S. 311, 315 (1903) (holding that only clear and explicit language can restrict the President’s removal power); Parsons v. United States, 167 U.S. 324, 343 (1897) (holding that even if statutory law provides for a fixed term of office, the President still has the power of removal); Removability
of the Federal Coordinator for Alaska Natural Gas Transportation Projects, 33 Op. O.L.C., 2009 WL
4325376, at 2 (Oct. 23, 2009) (finding the Coordinator is removable because of lack of explicit forcause protections); Memorandum Opinion for the General Counsel, Department of the Treasury and
the Chief Counsel, Office of Thrift Supervision from Daniel L. Koffsky, Acting Assistant Attorney
General, Office of Legal Counsel (Sept. 4, 2001) (suggesting that an individual who serves a fixed
term with no for-cause removal protection does so at the pleasure of the President); Breger & Edles,
Independent Agencies, supra note 2, at 146; Corrigan & Revesz, supra note 153, at 656; Datla &
Revesz, supra note 2, at 832 (2013); Neomi Rao, Removal: Necessary and Sufficient for Presidential
Control, 65 Ala. L. Rev. 1205, 1252-53 (2014) [hereinafter Rao, Removal]; Peter L. Strauss, Overseer,
or “The Decider”? The President in Administrative Law, 75 Geo. Wash. L. Rev. 696, 716 (2007);
Adrian Vermeule, Conventions of Agency Independence, 113 Colum. L. Rev. 1163, 1174 (2013).
176. See generally Hogue & Carey, supra note 169; Michael J. Gerhardt, Constitutional Arrogance,
165 U. Pa. L. Rev. 7 (2016); Thomas O. Sargentich, The Emphasis on the Presidency in U.S. Public
Law: An Essay Critiquing Presidential Administration, 59 Admin. L. Rev. 1 (2007); Vermeule, supra
note 175, at 1195-96, 1200-03 (2013).
177. See Datla & Revesz, supra note 2, at 833-35 (arguing that there is no statutory basis for implying
for-cause removal protection from a set term of years).
Overview of the Federal Executive Establishment

51

2. Administrations
Administrations located outside of the EOP and executive departments look
structurally most like executive departments. A comparison of the organization charts
of 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.
The larger single-headed agencies include the Social Security Administration
(64,400 employees), Environmental Protection Agency (15,600 employees), and
National Aeronautics and Space Administration (17,300 employees). The SSA was
formerly part of the Department of Health and Human Services (HHS). Congress
removed it from HHS in 1994 in order to alleviate the budgetary and managerial
pressures of being inside a department.178 Among the smaller administrations are
the Trade and Development Agency (57 employees) and the Office of Government
Ethics (68 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 head of the
Social Security Administration serves for a six-year term and may only be removed
for neglect of duty or malfeasance in office.179
3. Multi-Member Bodies
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 6,300 employees to just a handful.180 As discussed above, the most recognizable of
these are the independent regulatory commissions, designed with the same structural
features as the ICC—located outside executive departments, having multi-member
body, for-cause protections, staggered terms, and party balancing requirements, and
exercising quasi-legislative and/or quasi-judicial power.181 These agencies are involved

178. Social Security Independent and Program Improvements Act of 1994, Pub. L. No. 103-296, 108
Stat. 1464 (1994).
179. 42 U.S.C. § 902(a)(3) (2017).
180. Among the smallest agencies are the Barry Goldwater Scholarship and Excellence in Education
Foundation and the Harry S. Truman Scholarship Foundation with two and five employees, respectively, as of September 2017. See OPM, FedScope, supra note 51 (Employment Cube – Sept. 2017).
181. See generally Humphrey’s Ex’r v. United States, 295 U.S. 602 (1935). Two agencies are purely
adjudicatory (OSHRC and FMSHRC).
52

Sourcebook of United States Executive Agencies

in significant ways in regulating many aspects of the economy, from antitrust to
banking to labor to communications to consumer products.182
There are a number of reasons why the independent commission structure
was and still is appealing to policymakers. Most notably, the commission structure
requires deliberation and may lead to decisions that are more moderate as commissioners compromise to reach agreement.183 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.184 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.185
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.186
Yet the presence of independent commissions has been controversial in the
American political system, as commissions can lead to inefficiencies.187 The Brownlow Committee charged that “they do violence to the basic theory of the American
Constitution that there should be three major branches of government and only
three.”188 The Brownlow Committee also complained about commission performance, noting, “For purposes of management, boards and commissions have turned
out to be failures.”189

182. See Gary J. Miller & Andrew B. Whitford, Above Politics: Bureaucratic Discretion and Credible Commitment (2016) (using a series of theoretical models and a case study of
financial regulation to explore how federal administrators exercise and protect independence and when
and why politicians allow federal agencies to operate autonomously).
183. E.g., Stephen M. Bainbridge, Why a Board? Group Decisionmaking in Corporate Governance, 55
Vand. L. Rev. 1, 12-19 (2002); Harry T. Edwards, The Effects of Collegiality on Judicial Decision
Making, 151 U. Pa. L. Rev. 1639, 1645 (2003); Gersen, supra note 139, at 696 (2013); Edith Ramirez,
The FTC: A Framework for Promoting Competition and Protecting Consumers, 83 Geo. Wash. L. Rev.
2049, 2053 (2015); Glen O. Robinson, On Reorganizing the Independent Regulatory Agencies, 57 Va.
L. Rev. 947, 963 (1971).
184. Lewis, Agency Design, supra note 16; Moe, Bureaucratic Structure, supra note 16; Nolan
McCarty, The Appointments Dilemma, 48 Am. J. Pol. Sci. 413 (2014); McCubbins et al., supra note
16. But see Neomi Rao, Administrative Collusion: How Delegation Diminishes the Collective Congress,
90 N.Y.U. L. Rev. 1463, 1496-1501 (2015) [hereinafter Rao, Administrative Collusion] (arguing that
any delegation to the modern administrative state undermines the Congress as an institution).
185. Moe Report, supra note 1, at 11; Kosar, Quasi Gov’t, supra note 49.
186. Moe Report, supra note 1, at 32.
187. Breger & Edles, Established by Practice, supra note 2; Datla & Revesz, supra note 2, at 794.
188. President’s Comm. on Admin. Mgmt., supra note 15, at 40.
189. Id. at 32.
Overview of the Federal Executive Establishment

53

The Committee’s concerns have been echoed throughout the twentieth century.190
While some scholars suggest that the commission structure guards against undue influence by politically powerful interests,191 others have argued that 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 regulated industries ultimately can
make the agency sympathetic to, or “captured” by, regulated industries.192 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 that the increasing
appointment of strong partisans or ideologues has undermined the moderate and
bipartisan composition of boards.193
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 are going to
be autonomous in ways that are useful to policymakers in some cases and frustrating
in others.194
When agencies are involved in adjudication or making decisions with large consequences for markets and society, most would agree that the agency should make
decisions on the basis of evidence and expertise rather than on partisan considerations.
The features of agency design that limit partisan influence are precisely those that
characterize independent commissions. The alternative to creating independent
commissions is allowing less insulated agencies to make these decisions with no
particular protection from partisan influence or to use statutory details or political
oversight to limit and confine the authority of executive officials. In complex areas
of law and policy, however, precise statutes are difficult to craft. Detailed statutes
190. Critics of the independent agencies lament the fragmentation of policy into disparate agencies.
For example, President Truman 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 16, at 21-22.
191. Barkow, supra note 158, at 38; Bressman & Thompson, supra note 158, at 611.
192. Marver Bernstein, Regulating Business by Independent Commission (1977);
George Stigler, The Theory of Economic Regulation, 2 Bell J. Econ. 114 (1971).
193. E.g., “Symposium on the Quality of Regulatory Appointments,” in Senate Committee on
Government Operations, Study on Federal Regulation, Volume I, “The Regulatory Appointments
Process,” Appendix I, p. 233, 95th Cong. 1st Sess. (Jan. 1977); Gillian E. Metzger, Agencies, Polarization, and the States, 115 Colum. L. Rev. 1739, 1761-62 (2015). 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 & David E. Lewis, Not-So-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); Vermeule, supra note 175, at 1179-81.
194. David E. Lewis & Jennifer L. Selin, Political Control and the Forms of Agency Independence, 83
Geo. Wash. L. Rev. 1487 (2015).
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can be counterproductive if they limit useful flexibility and prevent agencies from
using expertise they have acquired. In some cases, political oversight can help correct
wayward agency policymaking, 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 for 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 because
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. There has been much work on whether agencies of various
types are more responsive to Congress or the President.195 While some of this work
provides evidence that the commission structure makes an agency relatively more
responsive to Congress, other scholarship suggests that independent commissions
are removed from both congressional and presidential control.196
Beyond the classic independent regulatory commissions, there are also boards
outside of the EOP and executive departments that neither regulate nor adjudicate.
These boards 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 (the Administrative Conference of the United States
or the Social Security Advisory Board) or to hand out federal scholarships.
The list of agencies with at least one of the features of independent commissions
(multiple members, fixed terms, or for-cause protections) includes independent regulatory and non-regulatory agencies, government corporations, scholarship agencies,
and agencies created to facilitate regional development. This illustrates the general
view that there is no direct or necessary relationship between agency structure and
195. See, e.g., Anthony M. Bertelli & Christian R. Grose, Secretaries of Pork? Executive Ideology,
Multiple Bureaucratic Principals, and Distributive Public Policy, 71 J. of Pol. 926 (2009); Randall
L. Calvert, Mathew D. McCubbins & Barry Weingast, A Theory of Political Control and Agency Discretion, 33 Am. J. Pol. Sci. 588 (1989); John Ferejohn & Charles Shipan, Congressional Influence on
Bureaucracy, 6 J. L. Econ. & Org. 1 (1990); Thomas H. Hammond & Jack H. Knott, Who Controls
the Bureaucracy?: Presidential Power, Congressional Dominance, Legal Constraints, and Bureaucratic
Autonomy in a Model of Multi-Institutional Policy-Making, 12 J. L. Econ. & Org. 119 (1996);
Charles Shipan, Regulatory Regimes, Agency Actions, and the Conditional Nature of Congressional
Influence, 98 Am. Pol. Sci. Rev. 467 (2004); Barry R. Weingast & Mark J. Moran, Bureaucratic
Discretion or Congressional Control? Regulatory Policymaking by the Federal Trade Commission, 91 J.
Pol. Econ. 765 (1983); Andrew B. Whitford, The Pursuit of Political Control by Multiple Principals,
67 J. of Pol. 29 (2005); B. Dan Wood & Richard W. Waterman, The Dynamics of Political Control of
the Bureaucracy, 85 Am. J. Pol. Sci. 801 (1991).
196. Epstein & O’Halloran, supra note 156; Lewis, Agency Design, supra note 16; Steven
G. Calabresi & Saikrishna B. Prakash, The President’s Power to Execute the Laws, 104 Yale L.J. 541,
582-83 (1994); Joshua D. Clinton, David E, Lewis & Jennifer L. Selin, Influencing the Bureaucracy:
The Irony of Congressional Oversight, 58 Am. J. Pol. Sci. 387 (2014); Brian D. Feinstein, Designing
Executive Agencies for Congressional Influence, 69 Admin. L. Rev. 259, 283-286 (2017); Selin, supra
note 2, at 982; Weingast & Moran, supra note 195.
Overview of the Federal Executive Establishment

55

function.197 Regulatory and adjudicative authority is delegated to single-headed
executive agencies and independent commissions. For example, the Department of
Agriculture and the Federal Trade Commission both regulate. The Department of
Housing and Urban Development and the National Labor Relations Board both
adjudicate. Government corporations exist 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.198
4. Government Corporations and Government-Sponsored Enterprises (GSEs)
The remaining class of agencies outside of the EOP and executive departments often shares many of the structural characteristics of multi-member bodies such as 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.199
Among this class of agencies are government corporations and government-sponsored enterprises, federally empowered non-profits and cooperatives, and federally
sponsored regional development agencies whose governance is shared by states.200
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.201 As a result, the legislature 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 granted both business-like tractability
and insulation from political influence. Congress struggled with how to ensure public
accountability and preserve management flexibility at the same time.202 Its answer was
197. Peter L. Strauss, The Place of Agencies in Government: Separation of Powers and the Fourth Branch,
84 Colum. L. Rev. 573 (1984) [hereinafter Strauss, Place of Agencies]; Verkuil, supra note 157, at 263.
Tables 18 and 19, infra, respectively list agencies with adjudicatory authority and detail federal agencies’
rulemaking activities in the last fifteen years.
198. Lewis, Agency Design, supra note 16; Amy Beth Zegart, Flawed by Design: The Evolution of the CIA, JCS, and NSC (1999); Moe, Bureaucratic Structure, supra note 16; William G.
Howell & David E. Lewis, Agencies by Presidential Design, 64 J. Pol. 1095 (2002); McCubbins et al.,
supra note 16; Wood & Bohte, supra note 16.
199. For an overview of more non-traditional agency types, see GAO, Federally Created Entities, supra note 40.
200. See O’Connell, Bureaucracy at the Boundary, supra note 2, at 851-52 (identifying agencies that do
not easily fit the definitions of “executive agency” or “independent commission”).
201. Kosar, Gov’t Corp., supra note 2; Seidman, supra note 16, at 188-89.
202. A. Michael Froomkin, Reinventing the Government Corporation, 1995 U. Ill. L. Rev. 560 (1995).
56

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the Government Corporation Control Act of 1945,203 which tries to regularize government corporation accountability without impinging on necessary flexibilities.204
While not consistently defined legally,205 a “government corporation” in this
report is defined as a wholly or partially owned government instrumentality206 that
performs business-like functions and usually does not rely on annual appropriations
for funding.207 Government corporations are chartered by acts of Congress and
generally are board-governed and exempted from government-wide managerial
mandates.208 What distinguishes government corporations from other federal agencies
is the grouping of function, structure, and (sometimes) ownership.209 For example,
many federal agencies that perform business-like functions are not government cor203. Pub. L. No. 248, 59 Stat. 597 (1945).
204. 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 Government Corporation Control Act of 1945. See Lebron v. Nat’l R.R Passenger Corp., 513 U.S.
374 (1995).
205. See O’Connell, Bureaucracy at the Boundary, supra note 2, at 856. For the purposes of Title 5,
“government corporation” means a corporation owned or controlled by the Government of the United
States. 5 U.S.C. § 103(1) (2017). This relatively vague definition has resulted in case-by-case determinations of what constitutes a government corporation. See, e.g., Banks v. Merit Systems Protection Board,
854 F.3d 1360, 1362 (D.C. Cir. 2017) (the Postal Service is not a government corporation); Defense
Criminal Investigative Service, Dep’t of Defense v. Federal Labor Relations Authority, 855 F.2d 93, 98
(3rd Cir. 1988) (the definition does not include the Department of Defense or any of its subunits);
Hamilton-Warwick v. U.S. Bancorp, 2016 WL 740257 (D. Minn. 2016) (the Federal Deposit Insurance Corporation is a government corporation); Makky v. Chertoff, 489 F. Supp. 2d 421, 429 (D.N.J.
2007) (the Transportation Security Administration is not a government corporation).
206. 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; Financing Corporation; Resolution Trust Corporation; and Resolution
Funding Corporation. 31 U.S.C. § 9101(2) (2017). The wholly-owned government corporations
are: the Commodity Credit Corporation; Community Development Financial Institutions Fund;
Export-Import Bank of the United States; Federal Crop Insurance Corporation; Federal Prison
Industries, Inc.; Corporation for National and Community Service; Government National Mortgage
Association; International Clean Energy Foundation; Millennium Challenge Corporation; Overseas
Private Investment Corporation; Pension Benefit Guaranty Corporation; Rural Telephone Bank; St.
Lawrence Seaway Development Corporation; Federal Housing Administration Fund; and Tennessee
Valley Authority. Id. § 9101(3).
207. Kosar, Gov’t Corp., supra note 2. 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. U.S. Gen. Accounting Office, GAO/GDD-96-14,
Government Corporations: Profiles of Existing Government Corporations (1995)
[hereinafter GAO, Existing Gov’t Corps.]; GAO, Federally Created Entities; supra note
40; Froomkin, supra note 202, at 543.
208. Board governance takes different forms with some managed by full-time boards, some by parttime 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 2, at 9.
209. Id. at Appendix A.
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57

porations. Similarly, many federal entities have comparable features to government
corporations but do not perform business-like functions. Congress also has designated agencies “corporations” even though they do not perform business-like functions
and are not self-funding.210 For example, the Millennium Challenge Corporation (“a
corporation”)211 and the Legal Services Corporation (“a private membership nonprofit corporation”)212 are called corporations but do not perform business-related
functions and rely on annual appropriations.213
Some government corporations such as the Federal Deposit Insurance Corporation (mixed ownership) and Tennessee Valley Authority (wholly owned by the federal
government) are distinct agencies that report directly to the President and Congress.
Others, such as the St. Lawrence Seaway Development Corporation (Transportation) and the Commodity Credit Corporation (Agriculture) 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.214
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.215 Rather, the expectation
is that government corporations should be self-funding, although Congress will
intervene to supplement revenues or to provide resources for capital improvements
or new programs.216 Government corporations are also frequently exempted from

210. See Seidman, supra note 16, 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 government “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).
211. 22 U.S.C. § 7703(a) (2017).
212. 42 U.S.C. § 2996b(a) (2017).
213. Similarly, the Millennium Challenge Corporation is a grant-giving agency that relies on annual
appropriations.
214. This feature of government corporations 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 2, at 7; Seidman, supra note 16, at 190-91.
215. As many corporations’ statutes explicitly state the entity is not an agency or instrumentality of
the United States, these corporations are exempted from OMB’s jurisdiction, which generally covers
agencies and instrumentalities of the United States. Agencies with these explicit statutory provisions
include: AMTRAK; Corporation for Public Broadcasting; Legal Services Corporation; National
Association of Registered Agents and Brokers; National Institute of Building Sciences; Puerto Rico
Financial Oversight and Management Board; Securities Investor Protection Corporation; State Justice
Institute; and Tennessee Valley Authority.
216. Some exceptions include the Tennessee Valley Authority. In a 1995 survey, the U.S. General
Accounting Office found that most government corporations received some federal appropriations in
Fiscal Year 1994. GAO, Existing Gov’t Corps, supra note 207, at 21-22.
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many government-wide managerial mandates and have the ability to create their own
personnel systems outside traditional civil service laws.217
Government-sponsored enterprises (GSEs) perform business-like functions as
well, but are private, for-profit organizations (yet still government entities) created
to make credit more available to certain sectors of the economy.218 They are governed
by a board, the majority of which is selected by private actors, either investors or borrowers.219 There are currently seven GSEs.220 These entities are not staffed by federal
employees and do not have the authority to exercise government 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 is also believed to 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.221 Given the perceived backing of
the federal government, these firms have market advantages that can translate into
significant economic and political power. For example, the Federal National Mortgage Corporation (Fannie Mae) and the Federal Home Loan Mortgage Corporation
(Freddie Mac) grew dramatically between 1990 and 2008 and are among the biggest
financial institutions in the country.222 These two GSEs spent heavily on congressional lobbying and numerous journalistic accounts questioned their influence in the

217. See id. (finding substantial variation across corporations and providing a thorough review of
government corporation adherence to government-wide management laws).
218. Kevin R. Kosar, Cong. Research Serv., RS21663, Government-Sponsored Enterprises (GSEs): An Institutional Overview (2009) [hereinafter Kosar, GSEs]. See also GAO,
Federally Created Entities, supra note 40, at 18-19; Thomas H. Stanton, Federal Supervision of
Safety and Soundness of Government-Sponsored Enterprises, 5 Admin. L.J. 395 (1991).
219. Kosar, GSEs, supra note 218, at 8.
220. Id. at 3. The list of GSEs includes three investor-owned entities (the Federal Agricultural
Mortgage Corporation, Federal Home Loan Mortgage Corporation, and Federal National Mortgage
Association), two entities owned cooperatively by their borrowers (Farm Credit System and Federal
Home Loan Bank System), and two funding shells (Financing Corporation and Resolution Funding
Corporation). Id.
221. See, e.g., Ronald C. Moe & Thomas H. Stanton, Government-Sponsored Enterprises as Federal
Instrumentalities: Reconciling Private Management with Public Accountability, 49 Pub. Admin. Rev.
321 (1989).
222. Kosar, GSEs, supra note 218, at 4.
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regulatory regime that contributed to the financial crisis.223 Both Fannie Mae and
Freddie Mac were among the top 20 lobbying spenders between 1998 and 2008.224
Some scholars have noted that the agencies’ structure as GSEs provided them with a
unique opportunity to form powerful connections with the financial industry and to
exert political influence.225 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.226 However, by 2012, both Fannie Mae
and Freddie Mac returned to profitability.227 The two GSEs remain in conservatorship,
a matter of some controversy, as they continue to share their profits with the federal
government, despite having paid back the money they received in the 2008 bailout.228
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.229 Notably, Congress has overseen the creation of non-profit
organizations to help pursue public purposes. Non-profit organizations are also used

223. Lisa Lerer, Fannie, Freddie Spent $200M to Buy Influence, Politico, July 16, 2008, http://
www.politico.com/news/stories/0708/11781.html (last visited May 23, 2018); Tom Raum and Jim
Drinkard, Fannie Mae, Freddie Mac Spent Millions on Lobbying, USA Today, July 17, 2008, http://
www.usatoday.com/money/companies/2008-07-17-fannie-freddie-lobbying_N.htm (last visited May
23, 2018); Tim Reid, Margaret Chadbourn & Mark Hosenball, Fannie, Freddie Tentacles Embraced
Many in Washington, Reuters, Nov. 17, 2011, http://www.reuters.com/article/2011/11/18/
us-usa-campaign-freddie-idUSTRE7AH02A20111118 (last visited May 23, 2018).
224. Raum & Drinkard, supra note 223; Tim Reid et al., supra note 223.
225. E.g., Richard Scott Carnell, Handling the Failure of a Government-Sponsored Enterprise, 80
Wash. L. Rev. 565, 592-93; Darrell Issa, Unaffordable Housing and Political Kickbacks Rocked the
American Economy, 33 Harv. J. L. & Pub. Pol’y 407, 413-17 (2010); Jonathan G.S. Koppell, Hybrid
Organizations and the Alignment of Interests: The Case of Fannie Mae and Freddie Mac, 61 Pub.
Admin. Rev. 468 (2001).
226. Kosar, GSEs, supra note 218, at 4. For information on the status of Fannie Mae and Freddie
Mac and the future of GSEs, see N. Eric Weiss, Cong. Research Serv., R40800, GSEs and the
Government’s Role in Housing Finance: Issues for the 113th Congress (2013); Andrea
J. Boyack, Laudable Goals and Unintended Consequences: The Role and Control of Fannie Mae and
Freddie Mac, 60 Am. U. L. Rev. 1489 (2011); Richard Boyd, Bringing the GSE’s Back In?: Bailouts,
U.S. Housing Policy, and the Moral Case for Fannie Mae, 11 Geo. J. L. & Pub. Pol’y 457 (2013);
Steven M. Davidoff & David Zaring, Regulation by Deal: The Government’s Response to the Financial
Crisis, 61 Admin. L. Rev. 463 (2009).
227. Fairholme Funds v. United States, No. 13-465 (Fed. Cl. filed July 9, 2013); Steven Davidoff
Solomon & David Zaring, After the Deal: Fannie, Freddie, and the Financial Crisis Aftermath, 95 B.U.
L. Rev. 371, 385 (2015).
228. The GSEs have returned $270.9 billion to the federal government, $83.4 billion more than they
received in the bailout. E.g., Andrew Ackerman & Brent Kendall, Supreme Court Declines to Wade
Into Fight Over Fannie, Freddie Profits, Wall St. J., Feb. 20, 2018; Joe Light, Fannie, Freddie Profit
Payments Should Continue, Treasury Says, Bloomberg Mkts. May 2, 2017; Gretchen Morgenson,
U.S. Foresaw Better Return in Seizing Fannie and Freddie Profits, N.Y. Times, July 23, 2017.
229. Kosar, Gov’t Corp., supra note 2, at 1, 4.
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as tools for policy implementation in many different federal agencies.230 For example,
Congress established the Public Company Accounting Oversight Board to oversee
public company audits and further the public interest by protecting the interests of investors.231 The structure and connection of these non-profits to the federal government
varies, but the non-governmental status of these agencies helps insulate them 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 District of Columbia law and
operates as an adjunct of the Securities and Exchange Commission.232 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 System, and the President.233 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.234 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.235
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 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.236 The Delta Regional
Authority237 and the Northern Great Plains Regional Authority238 follow a similar
form. The Metropolitan Washington Airports Authority runs the two Washington,
DC airports. Its board includes seven members appointed by the governor of Virginia,

230. 15 U.S.C. § 7211(a) (2017).
231. Id. The PCAOB is notable given litigation over its structure. Free Enter. Fund v. Pub. Co. Accounting Oversight Bd., 561 U.S. 477 (2010) (holding that the agency’s dual for-case provisions were
an unconstitutional limitation on the President’s power of removal).
232. 15 U.S.C. § 78ccc(a) (2017).
233. Id. § 78ccc(c)(2).
234. 42 U.S.C. § 10704(c)(1) (2017).
235. 22 U.S.C. § 4605(b) (2017).
236. 40 U.S.C. § 14301(b) (2017).
237. 7 U.S.C. § 2009aa-1(a) (2017).
238. Id. § 2009bb-1(a).
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61

four by the Mayor of the District of Columbia, three by the Governor of Maryland,
and three members nominated by the President and confirmed by the Senate.239
In summary, there is tremendous variation in the structure and purpose of free
standing agencies that exist outside of the EOP and executive departments. Some of
these agencies look very much like executive departments, while others are governed
by multi-member boards that are statutorily established with non-governmental
status. Just as political officials have experimented with various agency designs, the
President and Congress have also established a complicated system of employment
for federal personnel.
D. Federal Personnel System
The Constitution provides scant detail about federal personnel.240 It includes only a
few references to officers, consuls, and ministers, 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.241 The
Constitution grants to Congress the power to determine the means of appointing
inferior officers but specifies that it must be done either by the President, a Court of
Law, or Head of a Department.242 There is no constitutional restriction on the appointment of employees below the status of inferior officers. Congress has provided
the outlines of the personnel system in statutory law.243 Presidents and federal agencies
have further defined and augmented the system Congress created, through a series of
executive orders and agency rules.
1. The Modern Personnel System
The key statute that initiated the modern federal personnel system was the Civil
Service Act of 1883.244 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% at the time) would
be filled on the basis of merit proven through examinations. The Act created for the
first time a divided personnel system. From this point forward, some federal jobs
239. 49 U.S.C. § 49106(c)(1) (2017).
240. Moe Report, supra note 1, at 3; Fairlie, supra note 110, at 55; Short, supra note 24, at 15, 22,
26; William Franklin Willoughby, An Introduction to the Study of the Government
of Modern States 242 (1919).
241. 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., cl. 2.
242. Id. The question of what counts as an inferior officer is the subject of legal debate, but includes
the vast majority of federal officers.
243. E.g., 5 U.S.C. §§ 1301-11001 (2017).
244. Civil Service Act of 1883, Pub. L. No. 16, 22 Stat. 403 (1883).
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would be filled on the basis of merit and others filled at the discretion of the President,
the President’s subordinates, or other actors Congress had identified.245 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.246 By the middle of
the twentieth century, close to 90% of federal jobs were covered by civil service laws
and regulations.247 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).

245. 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. These are known as “political appointees.” The other employees in the agency,
however, are usually selected through procedures governed by civil service law and regulation. These
are known as “career employees.”
246. U.S. Office of Pers. Mgmt., Biography of an Ideal: A History of the Federal
Civil Service (2003); Ronald N. Johnson & 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 149.
247. Protections against dismissal for partisan reasons were added in the late 1890s, and federal workers
gained the right to unionize in 1912 after a decade of pressure. 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 146, 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. 360-63
(1944); Frank J. Sorauf, The Silent Revolution in Patronage, 20 Pub. Admin. Rev 28-34 (1960).
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63

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

Additional features:
1. Protections against
removal without cause
2. Right to unionize

Career Civil Service 90%

3. Prohibitions against
political activity
4. Regularized pay grades and
job definitions

Today, federal civilian jobs are primarily defined by a pay system and appointment
authority. There are four main pay systems that apply to most federal jobs.248 The
Federal Wage System (FWS) covers blue collar work (trade, craft, skilled, and unskilled
laborers).249 The General Schedule (GS) is the pay system for administrative, technical,
clerical, and professional jobs.250 The Senior Level and Scientific and Professional (SL/
ST) system establishes pay for high level non-executive positions above the highest GS
pay level.251 Senior management positions are defined in the Executive Schedule (EX)
and the Senior Executive Service pay schedule (ES).252 The EX pay system 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
248. Additionally, there are several miscellaneous systems that apply to a small number of employees.
See 5 U.S.C. §§ 5371-5379, 5392 (2017). For example, there are three levels of basic pay for administrative law judges and basic pay rate specifications for certain federal police forces. Id. § 5372 (administrative law judges); id. § 5375 (National Zoo’s police force); id. § 5378 (police officers for the protection of
the Bureau of Engraving and Printing and the United States Mint).
249. See 5 U.S.C. §§ 5341-49 (2017).
250. Id. §§ 5331-38.
251. Id. § 3104.
252. See id. §§ 5311-18.
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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.253
The pay system should not be confused with appointment authority. Appointment authority comes from the laws, executive orders, or rules that authorize a person
to join the federal service and govern the terms of the individual’s employment. Pay
category and appointment authority are distinct but often correlated. Top-level
positions, for example, are filled through political appointment rather than through
procedures governed by civil service law and regulation (appointment authority), and
political appointees tend to receive the highest salaries (pay category).254 In general
terms, the federal civil service still is comprised of two types of employees, political
appointees and “career” 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 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.
There are four main types of political appointees.255 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

253. Federal law also requires that there be equal pay for substantially equal work within each local
pay area and mandates that the federal government work to reduce pay disparities (the extent to which
rates of pay under the General Schedule are generally lower than the rates paid for the same work
by non-Federal workers). See id. §§ 5301-07 (2017). Each year, the Bureau of Labor Statistics (BLS)
conducts locality pay surveys to calculate annual wage estimates by occupation for each area. The
President’s Pay Agent (Secretary of Labor and the Directors of the Office of Management and Budget
and Office of Personnel Management) then uses the BLS data to estimate local pay disparities and
recommend adjustments to the General Schedule.
254. 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, 2017 Pay Tables for Executive and Senior Level Employees, https://
www.opm.gov/policy-data-oversight/pay-leave/salaries-wages/salary-tables/pdf/2017/SLST.pdf (pay
tables for senior-level federal civilian employees) [hereinafter OPM, 2017 Pay Tables], with 2016 Plum
Book, supra note 19 (identifying positions in legislative and executive branches subject to noncompetitive appointment and listing applicable federal salary schedule or pay system).
255. For a full description, see 2016 Plum Book, supra note 19, at 197-202; Lewis, Presidential
Appt., supra note 146, at 22-25; David E. Lewis, Presidential Appointments and Personnel, 14 Ann.
Rev. Pol. Sci. 52 (2011) [hereinafter Lewis, Appt and Personnel].
Overview of the Federal Executive Establishment

65

in this manner.256 While the definition of “officers of the United States” is relatively
vague, federal courts consider factors such as the significance of the official’s duties,
the finality of the official’s actions, and the amount of discretion the official has.257 A
second set of employees, “inferior officers,” may be appointed in any way Congress
establishes by law.258 These inferior officers are appointed in a variety of ways, from
nomination by the President and confirmation by the Senate to appointment by
agency heads.259
Among the most important positions nominated by the President and confirmed
by the Senate are department Secretaries, agency Administrators, and federal Commissioners. In 2016, there were approximately 1,237 positions in the federal executive
establishment requiring Senate confirmation.260 Of these, 187 are U.S. attorneys and
U.S. Marshals, about 188 are ambassadors, and hundreds are members of small boards
or commissions, often serving on a part-time basis.261 The Senate-confirmed positions
in the executive departments include Deputy, Under, and Assistant Secretaries, as

256. U.S. Const. art. II, § 2, cl. 2; Buckley v. Valeo, 424 U.S. 1, 132 (1976) (unless provided for
elsewhere in the Constitution, all officers of the United States are to be appointed in accordance with
this clause).
257. Buckley, 424 U.S. at 140-141; Freytag v. Comm’r Internal Revenue, 501 U.S. 868, 880 (1991);
Raymond J. Lucia Cos. v. SEC, 832 F.3d 277, 283-289 (D.C. Cir. 2016); Tucker v. Comm’r Internal
Revenue, 676 F.3d 1129, 1132 (D.C. Cir. 2012); Landry v. FDIC, 204 F.3d 1125, 1132-34 (D.C. Cir.
2000); Jennifer L. Mascott, Who Are “Officers of the United States”?, 70 Stan. L. Rev. 443 (2018).
258. U.S. Const. art. II, § 2, cl. 2.
259. A third and final group of employees perform duties that do not rise to the level of those required
for inferior officers. Buckley, 424 U.S. at 126 n.162; Mascott, supra note 257. Determining whether an
employee falls within this second and third group is somewhat difficult. See generally Freytag, 501 U.S.
at 881 (establishing three characteristics identify an “inferior officer” – a position established by law; the
duties, salary, and means of appointments are established by statute; and the officer exercises significant
discretion in carrying out important functions); Morrison v. Olson, 487 U.S. 654, 671-72 (1988) (providing a functional test for inferior officers); Edmund v. United States, 520 U.S. 651, 663 (1997) (noting
that to be an inferior officer, one must have a superior); Mascott, supra note 257. There has been recent
attention to whether administrative law judges constitute inferior officers, in part due to a circuit split
on the issue. See, e.g., Bandimere v. SEC, 844 F.3d 1168, 1170 (10th Cir. 2016) (holding that ALJs in
the SEC are inferior officers); Raymond J. Lucia Cos. v. SEC, 832 F.3d 277, 283-289 (D.C. Cir. 2016),
rehearing en banc, 868 F.3d 1021 (2017) (holding that ALJs in the SEC are not inferior officers). In
2018, the Supreme Court held that administrative law judges qualify as “Officers of the United States.”
Lucia v. S.E.C., 138 S. Ct. 2044 (2018). See also Randall Bryer, The SEC’s Potential Appointments
Clause Defect and How It Could Impact the Administrative State, 19 U. Pa. J. Const. L. 521 (2016);
Linda D. Jellum & Moses M. Tincher, The Shadow of Free Enterprise: The Unconstitutionality of the
Securities and Exchange Commission’s Administrative Law Judges, 70 S.M.U. L. Rev. 3 (2017).
260. There are also 5 persons in the legislative branch agencies such as the Library of Congress, Government Publishing Office, Architect of the Capitol, and Government Accountability Office nominated
by the President and confirmed by the Senate. 2016 Plum Book, supra note 19. This does not include
Senate-confirmed appointments to judgeships or multilateral organizations such as the United Nations.
261. For example, there are eight Senate-confirmed appointees on the Barry Goldwater Scholarship and
Excellence in Education Foundation. All serve in a part-time capacity without pay, but are entitled to
reimbursement for travel, subsistence, and other necessary expenses. 20 U.S.C. § 4703 (2017)
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well as a general counsel and an inspector general.262 As indicated above, most large
sub-department bureaus are headed by Senate-confirmed political appointees. The
heads of free-standing executive agencies (e.g., Environmental Protection Agency,
General Services Administration, National Aeronautics and Space Administration)
and the commissioners of all large commissions are positions that require Senate
confirmation.263
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 a second category of political appointees. The Senior Executive
Service (SES) is a corps of managers created by the Civil Service Reform Act of 1978.264
The SES is comprised of over 7,500 managers distributed across the federal executive
establishment.265 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.266 The president’s 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.267 No more than 10 percent of
the Senior Executive Service as a whole or 25 percent of the allocated SES positions
in an agency may be filled by political appointees.268 Some examples of SES positions
262. The Department of Defense is something of an outlier since it has 52 positions subject to Senate
confirmation. Each of the military services has 7-8 Senate-confirmed positions, as well 30 additional
positions in other parts of the Department of Defense. 2016 Plum Book, supra note 19.
263. Multi-member bodies that include members not appointed with Senate confirmation include:
Appalachian Regional Commission; Barry Goldwater Scholarship and Excellence in Education Foundation; Board of Veterans Appeals; Commodity Credit Corporation; Council of Economic Advisers;
Delta Regional Authority; Federal Agricultural Mortgage Corporation; Federal Crop Insurance Corporation; Harry S. Truman Scholarship Foundation; James Madison Memorial Fellowship Foundation; Metropolitan Washington Airports Authority; National Consumer Cooperative Bank; National
Indian Gaming Commission; Northern Great Plains Regional Authority; Overseas Private Investment
Corporation; Puerto Rico Financial Oversight and Management Board; Securities Investor Protection
Corporation; Social Security Advisory Board; United States Postal Service.
264. 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).
265. According to data from the Office of Personnel Management, as of September 2017, there were
7,349 career members of the SES and 475 non-career appointee members. See OPM, FedScope, supra
note 51.
266. 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. §§ 3132-33 (2017).
267. The SES was created partly to give presidents more control over managerial personnel. Presidents
have more ability to move members of the SES than 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 146, at 23; David E. Lewis & Terry M. Moe, Struggling Over Bureaucracy: The Levers of
Control, in The Presidency and the Political System (Michael Nelson ed., 9th ed. 2009).
268. 5 U.S.C. § 3134 (2017).
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67

include 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.269 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.270 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. As
of September 2017, there were 830 Schedule C appointees.271 Some examples of
higher-level Schedule C positions include the Director for Scheduling and 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
Department of the Interior’s White House Liaison. The most common positions for
Schedule C appointees are 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
2006, there were 314 of these persons, the bulk of whom served either in the White
House Office or on small 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 and increased the number of other political appointees. The affected positions
269. 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, 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 Matters 12-15 (2016), https://www.google.com/
url?sa=t&rct=j&q=&esrc=s&source=web&cd=1&ved=0ahUKEwi__bCx78bZAhWSxVkKHeJcBRQQFggsMAA&url=https%3A%2F%2Fourpublicservice.org%2Fpublications%2Fdownload.
php%3Fid%3D1339&usg=AOvVaw1KVnU2_hygONH0n522QYzN [hereinafter OPM, Presidential
Transition].
270. OPM, Presidential Transition, supra note 269, at 12; Thomas J. Weko, The Politicizing
Presidency: The White House Personnel Office, 1948-1994 (1995).
271. OPM, FedScope, supra note 51 (Employment Cube - September 2017).
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include a number of managerial positions such as chief financial officers and Assistant
Secretaries for Administration and a number of appointments to minor boards and
commissions. As a result, in 2016, there were 462 presidential appointments without
Senate confirmation.272
The vast majority of civilian employees, however, are included in some form
of merit-based civil service system.273 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 a majority of the public attention federal agencies
receive focuses on Washington, DC, where most key policymaking employees work,
only about 20 percent of federal employees work in the Washington, DC metropolitan
area.274 The remainder work in a network of regional and field offices, from military
bases to local Social Security offices.
Figure 2. Simplified Depiction of Current Federal Civilian Personnel System

PAS
SES
Schedule C

Increasing
Pay
Increasing
Responsibility

Traditional
Merit System

1,230 Positions
Among PAS about 600 are
key policymaking positions
7,800 Positions
Ten percent of the SES
are political appointees
1,500 Positions
Positions vary in pay
from GS7 to GS15

Agency-Specific
Personnel Systems

Note: Figure excludes PA appointments that 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.

272. 2016 Plum Book, supra note 19.
273. 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).
274. OPM, FedScope, supra note 51.
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69

Figure 2 provides a simplified graphical representation of the modern personnel
system.275 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 1,200 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 an
agency has its own personnel system. This is why SES managers do not extend all the
way across the hierarchy in the figure. In agencies with their own personnel system,
personnel rules specific to those agencies govern managers. 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 appointee penetration varies across the federal executive establishment. Some agencies have many political appointees that penetrate deeply into
their organizations and others have few political appointees. The extent of political
appointee infiltration 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.276 As a general matter,
agencies in the EOP and executive departments or agencies structured like executive
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 agency, 7.8%), Department of Education (executive
department, 3.7%), and Federal Election Commission (independent agency, 6.7%).
Independent commissions can have high percentages of political appointees since
commissioners are usually political appointees and commissioners often each have
an appointed staff member. While the presence of political appointees can politicize
agencies, the additional political appointees in these agencies are not usually a conduit
for White House influence since the statutes establishing commissions typically place
limitations on presidential control.

275. 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).
276. 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).
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2. Trends in Personnel Management
Since the mid-twentieth century, four trends have shaped the federal personnel
system: an increase in the number of agency managers, a growth in the number of
political appointees who serve in executive agencies, the development of agency-specific personnel systems, and the federal government’s increased reliance on private
contract workers.
a) Thickening Government
First, there has been an increase in layers of management between top agency
officials and front-line employees. There has been proliferation of both top-level executives and middle-level managers and supervisors, increasing the ratio of managers
to front-line employees. The number of agency executives such as Deputy Secretaries,
Under Secretaries, and Assistant Secretaries has multiplied, and with them has come
an increase in deputies, chiefs of staff, assistants, and advisors.277 Paul Light refers to
these as “title riding” positions—positions whose title depends upon the status of
another position. Whereas there were an average of 1.4 title-riding positions attached
to Assistant Secretaries in 1960, by 1992 the number had increased to 5.8 positions.
Departments that once had Under and Assistant Secretaries 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.
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
labor market in which talented employees have viable private sector options. Since
federal executives have limited flexibility to use pay to counter private sector 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. For example, from 2008 to 2017, there was an over $327 billion increase
in the amount of federal grant awards.278 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
277. Light, Thickening, supra note 120.
278. Federal grant spending was $391,655,880,500 in 2008 and $718,947,628,456 in 2017. USAspending.gov, https://www.usaspending.gov/#/search/2701fa2f11adce328244048670780bd0.
Overview of the Federal Executive Establishment

71

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 have both almost doubled since 1960 (Figure 3).279 Part of the
expansion in political appointees comes naturally from an increase in the number
of federal programs and agencies.280 Political actors also have driven the increase in
political appointees in an effort to gain control over federal policymaking. Presidents
have sought to increase the number of political appointees to enhance their control
over federal agencies. Congress has at times sought to increase 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.281 The benefits of increased political appointees are greater for presidents now
than in the past, since presidents currently assert more control over the selection of
political appointees. Presidents have dramatically expanded White House capacity to
vet potential nominees by building up staffs dedicated to personnel.282

279. Lewis, Appt and Personnel, supra note 255, at 47-66.
280. Light, Thickening, supra note 120.
281. It is worth noting that in 2012, Congress actually decreased the number of appointments subject
to Senate approval. See Presidential Appointment Efficiency and Streamlining Act, Pub. L. No. 112166, 126 Stat. 1283 (2012).
282. See National Academy of Public Administration, America’s Unelected Government: Appointing the President’s Team 21-44 (1983); Mackenzie, supra note 147; James P.
Pfiffner, The Strategic Presidency: Hitting the Ground Running (2d ed. 1996) [hereinafter Pfiffner, Strategic Presidency]; Weko, supra note 270; 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). 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 three 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.
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Figure 3. Total Number of Federal Government Appointees
and Percentage Appointed, 1960-2008
4000

Number

Percent

3500

0.1

2500
0.08
2000
0.06

1500

0.04

1000

0.02

500
0

Percent Appointed

0.12

3000
Number of Appointees

0.14

1960 1964 1968 1972 1976 1980 1984 1988 1992 1996 2000 2004 2008
Year

0

Note: Includes salaried PAS, Schedule C, Noncareer SES, and NEA appointments (NEA refers to non-career executive appointmnet, 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, 20I0, 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.)

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.283 The Presidential Personnel Office plays a role in the
selection of all four types of appointees (PAS, PA, NA, and SC).284 The Office does
so in cooperation with top-level agency officials, facilitated by an expansion of liaison
positions in the departments and agencies designed to enhance coordination between
agencies and the White House.285
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 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
283. Lewis, Presidential Appt., supra note 146; Pfiffner, Strategic Presidency, supra note
282; Weko, supra note 270.
284. Presidential Appointment with Senate Confirmation, Presidential Appointment (without Senate
confirmation), Noncareer Appointment, and Schedule C Excepted Appointment.
285. Pfiffner, Strategic Presidency, supra note 282; Weko, supra note 270.
Overview of the Federal Executive Establishment

73

congressional majority both prefer. Increases in political appointees also provide
patronage opportunities that benefit the majority party.
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 in regional posts.286 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.287 Across the executive
establishment, presidents notably have 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).288
Presidents also have targeted agencies with policy views dissimilar to their own.289 This
is particularly the case if these agencies implement a policy central to the President’s
political agenda.290
The presence of a significant number of political appointees can influence agencies differently under different circumstances 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 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,

286. The number of appointed regional posts has actually declined. Weko, supra note 270, at 25.
This contrasts with career employment, which tends to be located outside of the Washington metropolitan area.
287. 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.
288. For details of the increase in appointees in the Bureau of the Budget/Office of Management and
Budget, see Lewis, Presidential Appt., supra note 146; Hugh Heclo, OMB and the Presidency—
The Problem of “Neutral Competence”, 38 Pub. Int. 80 (1975). See also Lewis and Moe, supra note 267.
289. 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 & 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).
290. Historically, Democratic presidents have targeted more traditionally conservative agencies, and
Republican presidents have targeted traditionally liberal agencies. Lewis, Presidential Appt., supra
note 146.
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tie party factions together, or engender future good will. The difference in types of
political appointees can be consequential for management.291
A number of scholars and commissions have noted with alarm the increasing
number of political appointees in the federal executive establishment and have argued
that having too many political appointees hurts federal management performance.292
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 progressively
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.293
Presidents have been among those defending the large number of political appointees
as necessary to bring responsiveness and energy to the federal bureaucracy.294
c) Increase in Agency-Specific Personnel Systems
A third trend that characterizes the federal personnel system since the mid-twentieth century is the move 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 particular agencies from the requirements of Title 5. The largest change came in 1970 when the Postal Service (736,000
employees at the time) 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), the former Office of Thrift Supervision
(1989), Federal Aviation Administration (1996), and Internal Revenue Service (1998).
Table 6 includes a list of all agencies and bureaus 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.
291. Mackenzie, supra note 147; Tolchin & Tolchin, To the Victor, supra note 147; Tolchin
& Tolchin, Pinstripe Patronage, supra note 147; Bearfield, supra note 147; Gary E. Hallibaugh, Jr.,
Gabriel Horton & David E. Lewis, Presidents and Patronage, 58 Am. J. Pol. Sci. 1024 (2014).
292. National Commission on the Public Service, Leadership for America: Rebuilding
the Public Service (1989) [hereinafter 1989 Volcker Report]; 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).
293. Heclo, supra note 287; Lewis, Presidential Appt., supra note 146; Ezra Suleiman, Dismantling Democratic States (2003); Sean Gailmard & John W. Patty, Slackers and Zealots: Civil
Service, Policy Discretion, and Bureaucratic Expertise, 51 Am. J. Pol. Sci. 873 (2007);
294. American Enterprise Institute, A Discussion with Gerald R. Ford: The American Presidency,
March 25, 1977, Transcript of Interview at 11.
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Table 6. Agency-Specific Personnel Systems Authorized by Statute
Allowing Agency-Specific Personnel Authority

Restricting Agency Authority

Entities not considered agencies
or establishments of the United
States Government or whose
employees are excluded from the
definition of “employee” for the
purposes of Title 5.a

Agencies whose statutes permit
the agency to use an agencyspecific employment system.b

Agencies with statutory
limitations on the number
of employees compensated
without regard to civil service
provisions.c

AMTRAK
CIA
CPB
DRA
DIA
LSC
NARAB
NGIA
NIBS
NIST
NSA
OSNI
PRFOMB
SIPC
SJI
TVA

ANGTP
CFPB
CFTC
CNCS
EAC
FAA
FAMC
FBI
FCA
FCSIC
FDIC
FEC
FED
FHFA
JMMFF
MCC
MUSUF
NCCB
NCUA
NIGC
OMB
PCLOB
PRC
SEC
SSAB
TSA
USPS

ARC
BBG
CEA
CEN
DHS
DNDO
DOC
DOD
DOE
DOJ
DOL
DOT
DVA
FCC
FCIC
FDA
FMCS
FRTIB
FTC
HHS
IHS

IMLS
IRS
MMC
NARA
NASA
NAVY
NNSA
NTSB
OPIC
PBGC
PC
SBA
SSA
TSA
TRS
USDA
USIP
USPTO
USTR
VHA

Note: Inclusion or exclusion of agencies or bureaus is based upon agency authorizing statutes. The table
only includes information about agencies rather than classes of employees, such as Foreign Service
Officers.
a
5 U.S.C. § 5101 (2017). 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.”
c
While agencies have general or agency-specific authority to take personnel actions outside the normal
personnel process to account for specific agency needs or circumstances, 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 salary systems. 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”).

76

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During the George W. Bush Administration, the President worked aggressively,
but unsuccessfully, to ensure that the new Department of Homeland Security had its
own personnel system.295 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.296 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.297 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.298 While there is an ongoing 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.299 Furthermore, cumbersome hiring processes make it hard to attract interested
employees. As stated by the Government Accountability Office in 2008:
In short, the federal hiring process is often an impediment to the very
customers it is designed to serve in that it makes it difficult for agencies
and managers to obtain the right people with the right skills, and appli-

295. 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); Douglas A. Brook & Cynthia L. King, Civil Service Reform as National Security:
The Homeland Security Act of 2002, 67 Pub. Admin. Rev. 299 (2007) (describing the role of civil
service reform in the Homeland Security Act).
296. Christopher Lee & 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.
297. Brittany R. Ballenstedt, Homeland Security Scraps Plans for Personnel System, Gov’t Executive,
Oct. 2, 2008, http://www.govexec.com/dailyfed/1008/100208b1.htm (last visited June 28, 2018).
298. Steve Nelson, The State of Civil Service Today: Aching for Reform, 24 Rev. Pub. Personnel
Admin. 202 (2004); 1989 Volcker Report, supra note 292. Retention of federal employees is
increasingly important, as bureaucratic expertise is developed on the job. Sean Gailmard and John
W. Patty, Learning While Governing: Expertise and Accountability in the Executive Branch (2013).
299. U. S. Gov’t Accountability Office, GAO-12-564, Federal Workers: Results of
Studies on Federal Pay Varied Due to Differing Methodologies (2012). See also The
President’s Pay Agent, “Report on Locality-Based Comparability Payments for the General Schedule.”
Annual Report of the President’s Pay Agent (providing pay disparities for pay localities for each year).
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77

cants can be dissuaded from public service because of the complex and
lengthy procedures.300
Additionally, 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.301
Yet when employees work under numerous different personnel systems and rules,
it is difficult to monitor employment practices centrally to ensure fairness, fidelity to
merit system principles, and equal pay for equal work.302 Some managers use increased
flexibility to accomplish more easily agency goals. Others use the flexibility to do
precisely what the rules of the Title 5 system were created to prevent. Furthermore,
reform of any kind cannot be effective if agencies, and those who manage them, are
incapable of setting priorities and implementing personnel policies.303 There is some
evidence that many agencies simply do not have the capacity for the type of human
capital management that a decentralized system contemplates.304
The proliferation of distinct personnel systems also makes centralized human
resource management difficult. When one set of rules governed federal employment,
it was easier not only to monitor agency work but also to centrally manage. It is
now more difficult for the President or Congress to direct agency policy in multiple
agencies at the same time through changes in personnel or personnel policy because
expertise about personnel systems has devolved to the agencies themselves rather than
in 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 explain what
was working well or working poorly and how to improve performance. Now, with
300. Transforming Federal Recruiting and Hiring Efforts: Hearing before the Subcomm. on Regulatory
Affairs and Federal Management of the S. Comm. on Homeland Security and Governmental Affairs,
110th Cong. (2008) (statement of Robert N. Goldenhoff, Director, Strategic Issues, U.S. Gov’t
Accountability Office).
301. See Donald Kettl, Doris Hausser, Jozef Raadschelders, Ronald Sanders & Stan
Soloway, No Time to Wait: Building a Public Service for the 21st Century (2017)
(discussing human capital challenges facing the federal government and arguing for the need to move
away from a “one-size-fits-all” strategy).
302. Some question whether the core principle of merit embedded in civil service laws and regulations
can survive a more flexible system. See Larry M. Lane & Colleen A. Woodward, Merit without the
System: An Emergency Model for Public Sector HRM, in Radical Reform of the Civil Service
(Stephen E. Condrey & Robert Maranto, eds., 2001); James R. Thompson, The Federal Civil Service:
The Demise of an Institution, 66 Pub. Admin. Rev. 496 (2006).
303. See, e.g., Mark Considine & Jenny M. Lewis, Governance at Ground Level: The Frontline Bureaucrat in the Age of Markets and Networks, 59 Pub. Admin. Rev. 467 (1999); James L. Perry, Trent
A. Engbers & So Yun Jun, Back to the Future? Performance-Related Pay, Empirical Research, and the
Perils of Persistence, 69 Pub. Admin. Rev. 39 (2009); Norma M. Riccucci & Frank J. Thompson, The
New Public Management, Homeland Security, and the Politics of Civil Service Reform, 68 Pub. Admin.
Rev. 877 (2008).
304. U.S. Gov’t Accountability Office, GAO-14-168, Human Capital: Strategies to Help
Agencies Meet Their Missions in an Era of Highly Constrained Resources (2014).
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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 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 sector 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.305 The
federal government relies on contract employees to perform a variety of government
jobs, from janitorial or clerical work to writing regulations and providing security
in combat zones. Estimates suggest that a significant proportion of the increase has
come in service jobs. Although no exact count of contract employees exists,306 recent
estimates suggest that between 7.5 million and 10 million contract employees perform
work for the federal government, up from 4.5 million in 1999.307 By most accounts,
the number of contract employees is increasing.308
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 past few decades, the New Public Management (NPM). Developed in the 1980s
in an effort to make public agencies more efficient, NPM was famously the basis of
305. Paul C. Light, A Government Ill Executed 193 (2008) [hereinafter Light, Ill Executed].
306. 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 required 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); Curtis W. Copeland, Cong. Research Serv.,
RL34685, The Federal Workforce: Characteristics and Trends 4 (2011) [hereinafter
Copeland, Federal Workforce].
307. Light, True Size of Gov’t, supra note 37; Copeland, Federal Workforce, supra note 306.
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, http://fcw.com/articles/2011/05/26/house-hearing-debate-size-of-federal-workforce.aspx.
308. Light, Ill Executed, supra note 305, at 197; U.S. Gov’t Accountability Office, GAO07-235R, 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].
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79

Vice President Gore’s National Performance Review, which sought to provide “a
government that works better and costs less.”309 The NPM emphasized the benefits
of competition in order to provide managerial flexibility, purchase expertise, and
reduce costs.310 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 to 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.311 Proponents of contracting
hoped that the private sector would compete for government contracts and that 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.312
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 power of the firms themselves and that contract employees do
not necessarily improve performance or reduce costs.313 Supporters of the civil service
system argue that the increased reliance on contract employees undermines federal
executive 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 one of its high priority issues, citing no-bid
contracts, understaffed contract management offices, lax oversight, poor contracting
practices, and cost overruns.314 Federal contracts can be large and complicated, with
only one or a few bidders having 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

309. Kosar, Quasi Gov’t, supra note 49, at 5.
310. 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.
311. 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).
312. Light, Ill Executed, supra note 305, at 190, 192.
313. Kettl, supra note 106.
314. GAO, Areas For Oversight, supra note 308, 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).
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a public service ethic.315 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.316
In summary, a complex collection of statutes, executive orders, regulations,
and administrative practices govern the modern personnel system. While there is
variation in terms pay system and appointment authority across the executive establishment, one can identify four common trends across most federal agencies. Since
the mid-twentieth century, government has thickened with layers of management,
the number of political appointees in the executive establishment has grown, more
agencies are authorized to operate outside of traditional civil service laws, and the
federal government as increased its reliance on private contracting.

315. Paul R. Verkuil, Outsourcing Sovereignty: Why Privatization of Government
Functions Threatens Democracy and What We Can Do About It (2007); James P.
Pfiffner, The Public Service Ethic in the New Public Personnel Systems, 29 Pub. Personnel Mgmt. 54
(1999). OMB Circular A-76 establishes the standards for determining whether commercial activities
should be performed under contract with commercial sources or using federal government facilities
and personnel. Office of Mgmt. & Budget, Exec. Office of the President, OMB Circular
A-76 (1999).
316. Kettl, supra note 106, at 421.
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81

Part IV

The Creation and Design of Federal Agencies

T

he 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.317 In some cases,
statutes delegate new tasks or responsibilities to agencies, and administration officials
respond, generally with congressional support, by creating bureaus, divisions, or
offices to implement these new assignments. 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 in statute. Some
prominent examples include the Peace Corps and the series of civil rights agencies

317. Agencies historically have been created by statute, reorganization plan, executive order, or
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., Arnold, supra note 16; Lewis, Agency Design, supra note 16. 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).
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created by presidents from Franklin Roosevelt to Kennedy.318 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.319
Instances where administration officials have created agencies Congress would
not have created are not the norm. 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. While administration officials must secure appropriations for the new agencies after they have been created, agencies do not have to be
formally authorized or given a line of their own in the budget.320 The administration
can satisfy the requirement for authorization by describing the new units in budget
documents.321
From the President’s perspective, executive action occasionally can be an effective
form of agency creation when presidents can secure appropriations but not authorization for an agency. The nature of the budget process allows for the packaging of
policies into one piece of legislation and funds for new agencies can be buried in the
large appropriations bills.322 Presidents can also create agencies and present them
to Congress as a fait accompli. For example, President Kennedy created the Peace

318. Hugh Davis Graham, Civil Rights and the Presidency: Race and Gender in
American Politics, 1960-1972 (1992); William G. Howell, Power without Persuasion:
The Politics of Direct Presidential Action (2003); Lewis, Agency Design, supra note 16;
Howell & Lewis, supra note 198.
319. Howell & Lewis, supra note 198.
320. 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 (2017). See generally U.S. Gov’t Accountability Office, GAO-16-463SP,
Principles of Federal Appropriations Law (4th ed. 2016) (describing existing authorities and
interpretations of federal appropriations law).
321. 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 16, at 192, n.8 (quoting the 1970 hearings).
322. See, e.g., Barbara Sinclair, Unorthodox Lawmaking: New Legislative Process in
the U.S. Congress 196-264 (3d ed. 2007).
The Creation and Design of Federal Agencies

83

Corps by executive order in 1961,323 an action decried by Republicans in Congress.
By the time Congress had a chance to pass 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.324
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. Alternatively, existing agencies may resist
the delegation of authority because the new policy deviates from what the agency
perceives as its primary mission.325
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.326 There is substantial variation across the government in the ideology of
federal employees, and federal employees self-select into agencies whose missions they
support.327 For example, 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.328 This
fact influences the choices of whether to delegate new authority to existing agencies
or create a new agency to carry out new programs.329 For instance, President Roos323. Exec. Order No. 10,924, 3 C.F.R. 85-86 (Supp. 1961).
324. Id. at 84; Government Agencies (Donald Robert Whitnah ed., 1983).
325. James Q. Wilson, Bureaucracy: What Government Agencies Do and Why They Do
It (1989).
326. Joshua D. Clinton & David E. Lewis, Expert Opinion, Agency Characteristics, and Agency
Preferences, 16 Pol. Analysis 3 (2008); Epstein & O’Halloran, supra note 156; George Krause &
Ann O’M. Bowman, Adverse Selection, Political Parties, and Policy Delegation in the American Federal
System, 21 J.L. Econ. & Org. 359 (2005).
327. Joel D. Aberbach, Robert D. Putnam & B. A. Rockman, Bureaucrats and Politicians in Western Democracies (1981); Joel D. Aberbach & Bert A. Rockman, In the
Web of Politics: Three Decades of the U.S. Federal Executive (2000); Joel D. Aberbach
& Bert A. Rockman, The Political Views of U.S. Senior Federal Executives, 1970-1992, 57 J. Pol. 838
(1995); Joel D. Aberbach & Bert A. Rockman, Clashing Beliefs Within the Executive Branch: The
Nixon Administration Bureaucracy, 70 Am. Pol. Sci. Rev. 456 (1976); 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, Still Clashing after All These Years: Ideological Conflict
in the Reagan Executive, 37 Am. J. Pol. Sci. 681 (1993); Robert Maranto & Karen M. Hult, Right
Turn? Political Ideology in the Higher Civil Service, 1987-1994, 34 Am. Rev. Pub. Admin. 199 (2004);
Mark D. Richardson, Joshua D. Clinton & David E. Lewis, Elite Perceptions of Agency Ideology and
Workforce Skill, 80 J. Pol. 303 (2018).
328. Clinton et al., supra note 327.
329. Epstein & O’Halloran, supra note 156; Clinton et al., supra note 327.
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evelt 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.330 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 decision-making. For example, some structures insulate the agency from the
influence of the President or Congress. Others provide privileged access to agency
decision-making for some groups and interests. In many cases, there would be no
agency created at all unless the new agency included certain features that allow broad
representation and regular review by Congress.331
B. Agency Reorganization and Termination
Once created, federal agencies are durable but not immortal. In one study of agencies
created since 1946, 62 percent had been terminated or substantially reorganized by
1997.332 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. For example, 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.333 After the Gulf Oil Spill, agencies in the Department

330. Seidman, A Typology, supra note 108, at 43.
331. Moe, Bureaucratic Structure, supra note 16; McCubbins et al., supra note 16.
332. David E. Lewis, The Politics of Agency Termination: Confronting the Myth of Agency Immortality,
64 J. Pol. 89 (2002); see also Herbert Kaufman, Are Government Organizations Immortal? (1976); 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).
333. In response to the savings and loan crisis, Congress passed the Financial Institutions Reform,
Recovery, and Enforcement Act, which, inter alia, eliminated the Federal Home Loan Bank Board and
the Federal Savings and Loan Insurance Corporation and created the Federal Housing Finance Board,
the Office of Thrift Supervision, and the Resolution Trust Corporation. Financial Institutions Reform, Recovery and Enforcement Act of 1989, Pub. L. No. 101-73, 103 Stat. 183 (1989). In response
to the economic crisis of 2008, Congress then eliminated the Office of Thrift Supervision and created
agencies such as the Consumer Financial Protection Bureau and the Financial Stability Oversight
Council. Dodd-Frank Wall Street Reform and Consumer Protection Act, Pub. L. No. 111-203, 124
Stat. 1376 (2010).
The Creation and Design of Federal Agencies

85

of the Interior were reorganized.334 Notably, after 9/11, the National Commission
on Terrorist Attacks Upon the United States called for extensive reorganization of
the intelligence community.335 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.336 In addition, the Intelligence Reform and
Terrorism Prevention Act made significant changes to the structure of intelligence
agencies, including creating a Director of National Intelligence to serve as the head
of the intelligence community.337
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 to 200.338 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 newly established AmeriCorps program.
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.339 They succeeded in defunding or eliminating the Administrative
Conference of the United States, the National Biological Service, the Office of Technology Assessment, and the Interstate Commerce Commission. Mitt Romney, the
Republican nominee for the 2012 election, pledged to eliminate the Department of
334. After the Deepwater Horizon oil spill, Interior Secretary Salazar divided the Minerals Management Service into three separate organizations: the Office of Natural Resources Revenue, the Bureau
of Safety and Environmental Enforcement, and the Bureau of Ocean Energy Management. Secretary
Order No. 3299 (May 19, 2010). Almost a decade later, the Trump Administration is considering
reorganizing the Department of the Interior again to improve collaboration across agencies and
empower regional officials. E.g., Jennifer A. Dlouhy, Trump Weighing Combining Agencies Separated
After Gulf Spill, Sources Say, Bloomberg Pol. (June 8, 2017), https://www.bloomberg.com/news/
articles/2017-06-08/trump-said-to-mull-combining-agencies-separated-after-gulf-spill.
335. National Commission on Terrorist Attacks Upon the United States, The 9/11
Commission Report, 403 (2004).
336. Homeland Security Act of 2002, Pub. L. No. 107-296, 116 Stat. 2135 (2002). See also U.S. Dep’t of
Homeland Security, Who Joined DHS, https://www.dhs.gov/who-joined-dhs (last visited May 18, 2018).
337. Intelligence Reform and Terrorism Prevention Act of 2004, Pub. L. No. 108-458, 118 Stat. 3638
(2004).
338. Moe Report, supra note 1, at 15.
339. 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.
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Housing and Urban Development and to shrink the Department of Education.340 In
2017, President Trump issued an executive order directing the Director of the Office
of Management and Budget to develop a proposal to eliminate unnecessary agencies,
components of agencies, and agency programs.341 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 interests and often
significant numbers of Congress members.
Among the most durable agencies are those multi-member bodies located outside
the executive departments with features such as party-balancing limitations and fixed
terms. 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. More insulated multi-member agencies may produce more moderate policies
than executive departments since the median voter on a board hews more closely to
the middle of the political spectrum. There are also fewer opportunities to eliminate
these agencies since they often bypass Office of Management and Budget review and
they historically were often excluded from the President’s reorganization authority.342
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 some of its functions persisted
in the Surface Transportation Board.343
C. Why Do Federal Agency Designs Differ?
Part of what distinguishes the agencies in the categories described above—EOP,
executive departments, administrations, multi-member bodies, government corporations/other—are specific structural features that determine agency responsiveness
to elected officials and agency powers. The previous section of this 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.
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 design over time
340. Ryan Lizza, Why Romney’s No Reagan, New Yorker, April 17, 2012, http://www.newyorker.
com/online/blogs/newsdesk/2012/04/why-romneys-no-reagan.html.
341. Exec. Order No. 13,781, 82 Fed. Reg. 13,959 (Mar. 16, 2017).
342. Lewis, Adverse Consequences, supra note 154.
343. ICC Termination Act of 1995, Pub. L. No. 104-88, 109 Stat. 803 (1995); Surface Transportation
Board Reauthorization Act of 2015, Pub. L. No. 114-110, 129 Stat. 2228 (2015).
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87

are made separately, subject to the interests and politics of the moment, and not by
some grand notion of efficiency or effectiveness.344 As noted by Professor (and former
FCC commissioner) Glen Robinson, “[T]he history of important institutions and
government programs is often more one of eclectic confusion than of single-minded
purpose.”345 Common, but episodic, concerns about the President or Congress having
too much power have shaped agency design. So, too, have concerns about due process,
representation, and too much concentration of power.
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.346 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.347 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.348 Their belief was that a central bank
immune from political pressures to inflate or deflate the currency would lead to better
economic policymaking.
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 Office of Management and Budget) over agency budget submissions,
the regulatory process, and agency legislative proposals and testimony. Presidents also
have claimed control over agencies through centralized control over litigation.349 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
344. Moe, Bureaucratic Structure, supra note 16.
345. Glen Robinson, American Bureaucracy: Public Choice and Public Law 12 (1991).
346. McCarty, supra note 184; McCubbins et al., supra note 16.
347. Lewis, Agency Design, supra note 16; Moe, Bureaucratic Structure, supra note 16. Additionally, there is some evidence that Congress is less likely to establish agencies with removal protections
when the President is popular. Corrigan & Revesz, supra note 153, at 644.
348. See Federal Reserve Act, Pub. L. No. 63-43 (1913).
349. 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. Moreno, supra
note 155, at 500; Strauss, Place of Agencies, supra note 197, at 573.
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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 multi-member bodies rather than administrations.
Governance by multiple members limits 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.350 Statutes provide
different amounts of detail concerning the functioning of commissions with regard
to quorums, vacancies, and dealing with ties.351
b) Limitations on Appointments
Congress can also provide for few or many political appointees within an 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. Statutory features of an agency, such as limitations
on the types of persons eligible to serve, limit White House influence by shrinking the
President’s pool of potential nominees and decreasing the chances that the President
will be able to select exactly the person of his choice for a position. Yet many agency
statutes do place limitations on presidential discretion. 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

350. Robert Eugene Cushman, The Independent Regulatory Commissions (1972); Lewis, Agency Design, supra note 16.
351. 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.
Two recent cases drew national attention to the effect of quorum requirements on agency governance.
In NLRB v. Noel Canning, the Supreme Court held that the National Labor Relations Board lacked
the authority to conduct business due to the fact that three of its five members held invalid appointments, meaning the Board did not have a quorum under statutory law. 134 S. Ct. 2550 (2014). In UC
Health v. National Labor Relations Board, the D.C. Circuit Court clarified that a Regional Director
had authority to certify representation election results when the Board lacked a quorum. 803 F.3d 669
(D.C. Cir. 2015).
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served for two years as a Captain in the regular or volunteer army, and
shall be proficient in the Spanish language and laws.352
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.353 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.354 Of course,
Congress may impose any qualification requirements it prefers on nominees informally through the confirmation process even if the legislature did not write them into law.
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,”355
and the Solicitor General must be “learned in the law.”356 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.”357 The Secretary of Defense must be appointed from civilian life and
352. An Act For making further and more effectual provision for the national defense, and for other
purposes. Pub. L. No. 85, 39 Stat. 166, 169 (1916).
353. Army Bill Joker Aims to Rob Wood of Honor Medal, N.Y. Times, May 19, 1916.
354. 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). In 1976, the Supreme Court invalidated a 1974 statute creating the Federal
Election Commission that included a provision specifying that Congress appoint four members of the
Commission. Buckley v. Valeo, 424 U.S. 1, 141 (1976) (the Commission’s members are “Officers of
the United States” and must be appointed in a manner consistent with their constitutional position).
Congress and the President sometimes 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. Hogue, Cong. Research Serv., RL33886, Statutory Qualifications for Executive
Branch Positions (2010) [hereinafter Hogue, Statutory Qualifications].
355. 44 U.S.C. § 2103(a) (2017).
356. 28 U.S.C. § 505 (2017).
357. 12 U.S.C. § 4512(b)(1), (g)(3) (2017).
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be at least seven years removed from active duty.358 However, in 2017, Congress waived
that restriction to allow retired General James Mattis to become Secretary after retiring
in 2013.359 Specifically, Congress passed a law that stipulated:
[T]he first person appointed, by and with the advice and consent of the
Senate, as Secretary of Defense after the date of the enactment of this
Act may be a person who is, on the date of appointment, within seven
years after relief, but not within three years after relief, from active duty
as a commissioned officer of a regular component of the armed forces.360
The best-known limitation is the requirement for party-balancing on some
multi-member bodies. Statutes creating these agencies state that “no more than x
members of the commission can be from one political party.”361 Other limitations
require specific backgrounds, expertise, or demographic characteristics. Table 7 includes a list of agencies whose authorizing statutes include explicit provisions detailing
the background or qualifications of agency heads.362
Few of these qualifications 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 Federal Emergency Management
Agency (FEMA) Administrator to read: “The Administrator shall be appointed from
among individuals who have—(A) a demonstrated ability in and knowledge of emer358. 10 U.S.C. § 113(a) (2012).
359. Pub. L. No. 115-12, 131 Stat. 6 (2017) (to provide for an exception to a limitation against appointment of persons as Secretary of Defense within seven years of relief from active duty as a regular
commissioned officer of the Armed Forces). See, e.g., Jeremy Herb & Connor O’Brien, Mattis Waiver
Narrowly Passes House Panel After Full Senate Approval, Politico, Jan. 12, 2017, https://www.politico.com/story/2017/01/james-mattis-defense-secretary-waiver-senate-233555. For further discussion
of exceptions to statutory qualifications and limitations, see Hogue, Statutory Qualifications,
supra note 354, at 9-11.
360. Pub. L. No. 115-12, § 1(a), 131 Stat. 6 (2017).
361. See Ronald J. Krotoszynski, Jr., Johnjerica Hodge & Wesley W. Wintermyer, Partisan Balance
Requirements in the Age of New Formalism, 90 Notre Dame L. Rev. 941 (2015) (discussing the
history and constitutionality of party-balancing requirements). 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).
362. In addition, Congress often places limitations on other key officials within agencies. For example,
the total number of positions in the Social Security Administration which are held by noncareer
appointees in the Senior Executive Service or have been determined by the President or the Office of
Personnel Management to be excepted from the competitive service may not exceed the equivalent of
20 full-time positions. 42 U.S.C. § 904(c) (2017). One relatively common restriction on the appointments of officials who are not agency heads or board members is to attach expertise requirements to a
position. For example, the staff of the Office of Pediatric Therapeutics in the Food and Drug Administration must include one individual with expertise concerning the ethics of pediatric research. 21
U.S.C. § 393a(c) (2017). There are 47 agencies and bureaus with these types of expertise qualifications.
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91

gency management and homeland security; and (B) not less than 5 years of executive
leadership and management experience in the public or private sector.”363 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.364
Table 7. Statutory Limitations on the Types of Persons Who Can Be Nominated Agency Heads
or Board Members
(1)
Citizen of
the United
States
AMTRAK
CEN
CFPB
CPB
DNFSB
FAA
FCA
FCC
FCSIC
FDIC
FHFA
NRC
TSA
TVA
USPTO

(2)
Civilian

(3)
Geographic

(4)
Demographic

ARMY
DNFSB
DOD
DODATL
DODEA
DODPR
FAA
IAF
NAVY
SBA
USADF
USAF

AMTRAK
ARC
CPB
DRA
FCIC
FED
MWAA
NIBS
NGPRA
PRFOMB
SIPC
TVA

CNCS
NIGC
NGPRA
WB

(5)
Expertise
ACUS
AMTRAK
ARMY
BLM
BVA
CEA
CEN
CEQ
CFTC
CIS
CNCS
CPB
COSC
CSHIN
DHA
DNFSB
FOFATL
EAC
EXIM
FAA
FAMC
FCA
FCIC
FCSIC
FDIC
FEC
FED
FEMA

FHFA
FMCSA
FMSHRC
FRA
FRTIB
FSOC
HSTSF
IAF
ICE
IMLS
IRS
IRSOB
JMMFF
LSC
MCC
MMC
MSPB
MUSUF
NARAB
NAVY
NCCB
NCUA
NGPRA
NIBS
NIFA
NIGC
NNSA
NPS

(6)
Conflict of Interest
NTSB
ODNI
OPIC
OSC
OSHRC
PCLOB
PHMSA
PRC
PRFOMB
RRB
SBA
SIPC
SJI
SSAB
STB
TRMC
TSA
TVA
USADF
USAF
USCG
USFWS
USIP
USITC
USPS
USPTO
VBA
VHA

AMTRAK
ARMY
BVA
CFPB
CPSC
DNFSB
DOD
EXIM
FAA
FAMC
FCA
FCC
FCSIC
FDIC
FEC
FED
FMC
MMC
MSPB
MWAA

NAVY
NCCB
NCUA
NIBS
NIGC
OCC
ODNI
OSMR
PRC
PRFOMB
SEC
SIPC
STB
TRS
TSA
USAF
USIP
USPS
USPTO
USTR

(7)
Congress
Input
CPB
EAC
FRTIB
MCC
MUSUF
PCLOB

(8)
Party Balancing
AMTRAK
CFTC
CNCS
CPB
CPSC
DNFSB
EAC
EEOC
EXIM
FAMC
FCA
FCC
FCSIC
FDIC
FEC
FERC
FHITF
FLRA
FMC
FODSITF
FSMITF
FTC

HSTSV
JMMFF
LSC
MSPB
MUSUF
MWAA
NARAB
NCUA
NIGC
NMB
NRC
NTSB
PCLOB
PRC
SEC
SJI
SSAB
STB
USADF
USIP
USITC
USPS

Note: (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” or “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.

363. Post-Katrina Emergency Management Reform Act of 2006, Pub. L. No. 109-295, § 503(c)(2)
(A)-(B), 120 Stat. 1355, 1397 (2006) (codified at 6 U.S.C. § 313).
364. See, e.g., Staff of the S. Comm. On Commerce, 94th Cong. Appointments to the Regulatory Agencies: The Federal Communications Commission and the Federal Trade
Commission (1949-1974) 357 (Comm. Print 1976); Lawrence W. Lichty, Members of the Federal
Radio Commission and the Federal Communications Commission 1927-1961, 6 J. Broadcasting 23,
25-26 (1961); Alan B. Morrison, How Independent Are Independent Regulatory Agencies, 1988 Duke
L. J. 252, 253-54 (1988); Timothy P. Nokken & Brian R. Sala, Confirmation Dynamics: A Model of
Presidential Appointments to Independent Agencies, 12 J. Theoretical Pol. 91, 95 (2000). But see
Brian D. Feinstein & Daniel J. Hemel, Partisan Balance with Bite, 118 Colum. L. Rev. 9 (2018) (finding that partisan balance requirements have an effect on the ideological composition of multi-member
agencies).
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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.365 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.366 Mixed ownership corporations have persons
selected by investors or shareholders, and presidential appointees are a minority of
board members. Table 8 includes a list of agencies with these types of restrictions.

365. 22 U.S.C. § 7703(c)(3)(A) (2017).
366. 33 U.S.C. § 642 (2017).
The Creation and Design of Federal Agencies

93

Table 8. Boards or Commissions Whose Membership the President Does Not Fully Select
Board Includes Specific Government Officials

Other Actors Get to Select Some Board Members

ARC

Governor of each participating state

BGSEEF

Congressional selection of some
members

DRA

Governor of each participating state

FAMC

Holders of common stock select some
members

FCIC

Under Secretary of Agriculture
responsible for federal crop insurance
program; an additional Under
Secretary of Agriculture designated
by the Secretary of Agriculture; Chief
Economist of the Department of
Agriculture

FCIC

Secretary of Agriculture appoints six
members

FDIC

Comptroller of the Currency, Director
of CFPB

MWAA

Some members appointed by the
Governors of Maryland and Virginia,
some members appointed by the Mayor
of the District of Columbia

FSISC

Members of the FCA

NCCB

Some members elected by stockholders

FSOC

Chairmen of the CFTC, FED, FDIC, NCUA,
SEC; Comptroller of the Currency;
Director of the CFPB, FHFA; Secretary of
the Treasury

NIGC

Secretary of Interior appoints two
associate members

HSTSF

Two members of the House (appointed
by the Speaker); two members of the
judiciary; two members of the Senate
(appointed by the President of the
Senate)

SSAB

Two members appointed by the
President pro tempore of the Senate;
two members appointed by the Speaker
of the House

IRSOB

Commissioner of the IRS; Secretary of
the Treasury or designee

USPS

Board of Governors of the Postal
Service appoint Postmaster General and
Deputy Postmaster General (both voting
members of the Board)

JMMFF

Two members of the House; two
members of the Senate

MCC

Administrator of USAID; Secretaries of
State and the Treasury

NGPRA

Governor of each participating state

OPIC

Administrator of USAID; United States
Trade Representative or designee

PBGC

Secretaries of Commerce, Labor, and
the Treasury

SIPC

Officers and employees of the
Department of the Treasury and the
Federal Reserve Board (appointed by the
Secretary of the Treasury and the Fed
respectively)

USIP

President of National Defense University
or designee; Secretaries of Defense and
State or designees

Note: Does not include ex officio members.

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While originally contemplated as a mechanism to ensure continued governance,
the President’s ability to use his recess appointment power to unilaterally staff positions that usually require consent of the Senate has been used to circumvent qualification requirements in cases where a nominee’s qualifications have been called into
question.367 Indeed, one study estimates that, on average, presidents have made 12
percent of all appointments to major independent regulatory commissions using
recess appointments.368 The President’s ability to fill vacancies during Senate recess
received renewed attention in the Supreme Court’s decision in National Labor Relations Board v. Noel Canning.369 That case involved a claim that three of the NLRB’s
five members had been invalidly appointed, leaving the Board without a quorum to
conduct business. The Court held that, inter alia, because the members in question
were appointed during a recess too brief to fall within the scope of the Constitution’s
Recess Appointments Clause, the President lacked the authority to make those
appointments.370 The decision has received praise by some, who claimed that it recognized the power of the legislature to check the executive branch, and others have

367. The President has the power “to fill up all Vacancies that may happen during the Recess of the
Senate, by granting Commissions which shall expire at the End of their next Session.” U.S. Const.,
Art. II § 2, cl. 3. Increasingly, this power is seen as a type of unilateral action that can advance the President’s political and policy agenda. E.g., Louis Fisher, Cong. Research Serv., RL31112, Recess
Appointments of Federal Judges (2001); Ryan C. Black, Anthony J. Madonna, Ryan J. Owens,
& Michael S. Lynch, Adding Recess Appointments to the President’s “Tool Chest” of Unilateral Powers,
60 Pol. Res. Q. 645 (2007). Additionally, there is some evidence that programs administered by those
recess appointees are associated with lower performance scores than those programs administered by
non-recess appointments and careerists. Susan M. Miller, The Relationship Between Short-Term Political Appointments and Bureaucratic Performance: The Case of Recess Appointments in the United States,
25 J. Pub. Admin. Res. & Theory 777 (2014).
368. Pamela C. Corley, Avoiding Advice and Consent: Recess Appointments and Presidential Power,
Presidential Stud. Q. 670, 679 (2006). However, there is evidence that recess appointments are on
the decline. Ian Ostrander, Powering Down the Presidency: The Rise and Fall of Recess Appointments,
45 Presidential Stud. Q. 558, 562 (2015).
369. 134 S. Ct. 2550 (2014). Attention to the Recess Appointments Clause also arose due to the
Obama Administration’s use of the Clause to appoint Richard Cordray to serve as the Director of
the Consumer Financial Protection Bureau. E.g., Amelia Frenkel, Defining Recess Appointments
Clause “Vacancies”, 88 N.Y.U. L. Rev. 729 (2013); Helene Cooper & Jennifer Steinhauer, Bucking
Senate, Obama Appoints Consumer Chief, N.Y. Times, Jan. 4, 2012; Edwin Meese III & Todd Gaziano,
Obama’s Abuse of Power, Wash. Post, Jan 6, 2012.
370. According to the Court, the recess of the Senate contemplated by the Clause includes any recess
of substantial length. If the Senate recess is so short that it does not require the consent of the House or
lasts less than 10 days, the recess is too short to trigger the Clause. 134 S. Ct. at 2567. Additionally, the
Court held that the Clause applies to all vacancies that initially occur before the recess and those that
occur during the recess and that, for the purposes of recess appointments, the Senate is in session when
it retains the capacity to transact Senate business (including pro forma sessions). Id. at 2567, 2574.
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95

criticized the decision, predicting a larger number of vacancies due the increased use
of confirmation delays by the Senate to extract policy concessions.371
c) Protections Against Removal
Arguably the most important limitations on the President’s personnel powers
are restrictions on the President’s ability to remove agency officials (Table 9).372 As
discussed above, many statutes provide agency officials with fixed-term appointments
and indicate that the President cannot remove the official except “for-cause.”373 The
act creating the ICC, for example, prohibited removal except for “inefficiency, neglect
of duty, or malfeasance in office.”374 Term lengths vary from as short as one year to as
long as 14 years (members of the Board of Governors of the Federal Reserve).375 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 term ending after one year, another for a term ending after two years, etc. All
subsequent nominees to those positions can serve full terms.
371. E.g., Robert Barnes, Supreme Court Rebukes Obama on Recess Appointments, Wash. Post.,
June 26, 2014; Adam Liptak, Supreme Court Rebukes Obama on Right of Appointment, N.Y. Times,
June 26, 2014; Norman J. Ornstein, Disarming the White House, N.Y. Times, Jan. 21, 2014. See
also Gillian E. Metzger, Appointments, Innovation, and the Judicial-Political Divide, 64 Duke L. J.
1607, 1625-26 (2015) (explaining that delays in staffing agencies may be the result of the expansion of
senators’ hold on nominees, pro forma sessions, and the technique of not attending hearings in order
to deprive the commission of the necessary quorum for business).
372. 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. § 299c(e) (2017).
373. 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 “forcause” 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 158, at 1372, 1383.
374. An Act to Regulate Commerce, Pub. L. No. 49-104, § 11, 24 Stat. 379 (1887) (renamed the Interstate Commerce Act in 1920, 41 Stat. 456, 457 (1920)). 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. While The Tenure of Office Act of 1867 prohibited the President from
removing Senate-confirmed officials without Senate approval, the 1887 Act to Regulate Commerce allowed the President removal power without Senate involvement. See id., March 2, 1867, c. 154, 14 Stat.
431 (1867). Seidman, supra note 16, at 184. In 1926, the Supreme Court held that the provision of an
1876 law that denied the president the power of removal of first-class postmasters was unconstitutional.
Myers v. United States, 272 U.S. 52 (1926).
375. The head of the Government Accountability Office, an agency in the legislative branch, serves a
term of 15 years. 31 U.S.C. § 703(b) (2017).
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Table 9. Statutory Limitations on the President’s Removal Power
(1) Explicit “For-cause”
Protections

(2) Explicit Provisions
for Staggered Terms

(3) Provisions for
Continuation of Service

BVA

NCCB

BGSEEF

LSC

ACUS

IAF

CFPB

NIGC

CFTC

MMC

AMTRAK

JMMFF

CPSC

NLRB

CPSC

MUSUF

BBG

LSC

CSHIB

NMB

DNFSB

MWAA

BGSEEF

MMC

FCSC

NRC

EAC

NARAB

BVA

MSPB

FERC

NTSB

EXIM

NCUA

CEN

MUSUF

FHFA

OSC

FAMC

NIBS

CFPB

NARAB

FLRA

OSHRC

FCA

NIGC

CFTC

NCCB

FMC

PRC

FCIC

NLRB

CNCS

NCUA

FMSHRC

PRFOMB

FCSC

NMB

CPB

NEA

FTC

SJI

FCSIC

NRC

CPSC

NEH

LSC

SSAB

FEC

OPIC

DNFSB

NIBS

MSPB

STB

FED

OSHRC

EAC

NIGC

MWAA

USIP

FERC

SEC

EEOC

NTSB

NARAB

USPS

FMSHRC

SIPC

EXIM

OPIC

FRTIB

SJI

FAMC

PCLOB

FTC

SSAB

FCC

PRC

HSTSF

TVA

FCSC

PRFOMB

IAF

USADF

FDIC

RRB

IRSOB

USIP

FEC

SEC

JMMFF

USPS

FED

SIPC

FERC

SJI

FHFA

SSAB

FHITF

STB

FLRA

TVA

FMC

USADF

FODSITF

USIP

FRTIB

USITC

FSMIF

USPC

FTC

USPS

Note: (1) 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. (2) Some statutes for commissions
have provisions specifying the initial original term lengths so that terms will
be staggered. (3) Statute provides that, in the case of a fixed term, when such
person’s term has expired, he or she may serve until a successor has been
appointed and qualified or some other time.

The Creation and Design of Federal Agencies

97

The Supreme Court’s decision in Free Enterprise Fund v. Public Company Accounting Oversight Board highlighted the issue of fixed terms for political appointees
and for-cause protections.376 In that case, the structure of the Public Company Accounting Oversight Board (PCAOB) was challenged as an unconstitutional restriction
on the President’s removal power because the PCAOB’s members could be removed
only for-cause by the members of the Securities and Exchange Commission, who
themselves were removable only for-cause.377 The Court’s ruling made clear that
Congress cannot create two such levels of independence within the same agency.378
However, as noted by Justice Breyer in his dissent, the Court’s ruling was ambiguous
regarding the constitutionality of officials such as administrative law judges and high
ranking career executives within agencies whose leadership is protected by for-cause
protections.379 Table 10 includes a list of such agencies and positions.

376. 561 U.S. 477 (2010).
377. Id.
378. Id. at 491. See Rao, Removal, supra note 175, at 1244-47 (discussing the constitutionality of
removal restrictions on inferior officers).
379. Free Enter. Fund, 561 U.S. at 540-41.
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Table 10. Agencies with Explicit Double “For-Cause” Protections
Traditional Double “For-cause”
Agency

Second
Level

FLRA

FSLRB

GSA

CBCA

SSA

OCA

USPS

IG

Statutory Provision
“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)

“For-cause”
and Career SES
Employees

BVA
CSHIB
CPSC
FERC
FLRA
“Members of the Civilian Board shall be subject FMC
to removal in the same manner as administrative FMSHRC
FTC
law judges” 41 U.S.C. § 438(b)(3)a
MSPB
“The Chief Actuary may be removed only forNLRB
cause.” 42 U.S.C. § 902(c)(1)
NMB
NRC
NTSB
OSC
“The Inspector General may at any time be
PBOb
removed upon the written concurrence of
PRC
at least 7 Governors, but only for-cause.” 39
SSA
U.S.C. § 202(e)(3)
STB
USCCRc

“For-cause” and
Administrative
Law Judges
CFPB
FLRA
FMC
FMSHRC
MSPB
NLRB
NTSB
OSHRC
SEC
SSA
USCG
USPS

Source: Free Enter. Fund, 561 U.S. at 3184-215 (Appendix A) (Breyer, J., dissenting); Office of Personnel
Management, Federal Administrative Law Judges by agency and level, https://www.opm.gov/servicesfor-agencies/administrative-law-judges/#url=ALJs-by-Agency (last visited Feb. 5, 2018). 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). These agencies do not fall within the
Sourcebook’s definition of agency or politically important subunit.
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

b
Refers to the Performance-Based Organization (PBO) for delivery of student financial assistance, a
“discrete management unit” within the Department of Education. See 20 U.S.C. § 1018(a) (2017).

So listed in Appendix A to Justice Breyer’s dissent, see Free Enter. Fund, 561 U.S. at 3184-215 (Appendix
A) (Breyer, J., dissenting), though the U. S. Commission on Civil Rights (USCCR) has no political appointees
requiring Senate confirmation.

c

The Creation and Design of Federal Agencies

99

Table 11. Statutory Chair Selection and Retention Rules for Multi-Member Bodies
Selection

(1) Chair
selected by
President
with Senate
confirmation

(2) Chair
selected by
President
without Senate
confirmation

ARCa
BVA
CEA
CFTC
CPSC
CSHIB
DRAa
EEOC
EXIM
FCSC
FDIC
FED
MSPB
NGPRAa
NIGC
NTSB
PCLOB

CEQ
NDFSB
FAMC
FCA
FCC
FERC
FLRA
FMC
FMSHRC
FRTIB
FTC
IAF
MMC
NCUA
NLRB
NRC
OPIC
OSHRC
PRC
RRB
SIPC
SSAB
STB
USADF
USITC
USPC

(3) Chair
elected by
members
AMTRAK
ARCa
CNCS
CPB
DRAa
EACb
FCICb
FEC
IRSOB
JMMFF
LSC
MWAA
NARAB
NCCB
NGPRAa
NIBS
NMBb
PRFOMBb
SJI
TVA b
USIP
USPS

Retention
(4) Chair
designated
as official
who serves
in another
position in the
administration
CCC
FHITF
FODSITF
FSMITF
FSOC
MCC
PBGC

(5) Fixed term
for chair
ARC
BVA
EAC
EXIM
FDIC
FED
MSPB
NGPRA
NIBS
NIGC
NMB
NTSB
PCLOB
SJI
SSAB
USIP
USITC

(6) Statute
explicitly
states that
chair serves
at pleasure of
President
CFTC
IRSOB
NRC
PRC
SSAB

Note: (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 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.
a

Agency has co-chairs that are selected in different ways.

Agency statute specifies the board or commission shall do something other than “elect,” such as
“designate” or “select.” These agencies are: National Mediation Board (“designate”); Tennessee Valley
Authority (“select”); and U.S. Election Assistance Commission (“select”).

b

Statutes specify different rules regarding the selection of commission chairs and
whether fixed-term political appointees may stay in their positions after their terms
have 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
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official. Once a chair is selected, the rules for removal are the subject of some debate.380
In some cases, the statute provides that the chair serves for a fixed term, although only
two agencies’ statutes explicitly provide for-cause provisions for the chair.381 In a
handful of other agencies, the statute explicitly provides that the chair may be removed
at the President’s discretion. Table 11 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.382 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.”383 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 the event of a vacancy.384 In the Department of
Labor, the Deputy Secretary “shall (1) in case of the death, resignation, or removal
from office of the Secretary, 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.”385 In the case
380. Statutory provisions governing continuation of service generally refer only to commissioners or
members, and most say “all” commissioners or members. This suggests that chairs are included in continuation provisions. The FDIC’s authorizing statute explicitly provides for chairs to continue serving
until a successor has been appointed.
381. The statute for the Board of Veterans Appeals provides that the Chairman may only be removed
for misconduct, inefficiency, neglect of duty, or engaging in the practice of law, or for physical or
mental disability which prevents proper execution of the Chairman’s duties. Such removal may only
be made after notice and opportunity for hearing. 38 U.S.C. § 7101(b)(2) (2017). The Chemical Safety
and Hazard Investigation Board’s statute states that the Chairperson, like every other member of the
Board, may be removed for inefficiency, neglect of duty, or malfeasance in office. 42 U.S.C. § 7412(r)
(6)(B) (2017).
382. See Table 9 for a list of boards and commissions with continuation provisions.
383. 42 U.S.C. § 902(a)(3) (2017). 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. . .[serve] 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) (2017).
384. Sixty-four agencies in our dataset have statutes that specify rules for acting service. For more
information regarding vacancies, see, for example, Matthew Dull & Patrick S. Roberts, Continuity,
Competence, and the Succession of Senate-Confirmed Agency Appointees, 1989-2009, 39 Presidential
Stud. Q. 432 (2009); Matthew Dull, Patrick S. Roberts, Michael S. Keeney & San Ok Choi, Appointee
Confirmation and Tenure: The Succession of U.S. Federal Agency Appointees, 1989-2009, 72 Pub.
Admin. R. 902; Anne Joseph O’Connell, Vacant Offices: Delays in Staffing Top Agency Positions, 82 S.
Cal. L. Rev. 913 (2008); Anne Joseph O’Connell, Staffing Federal Agencies: Lessons from 1981-2016,
Brookings, https://www.brookings.edu/research/staffing-federal-agencies-lessons-from-1981-2016/.
385. 29 U.S.C. § 552 (2017).
The Creation and Design of Federal Agencies

101

where the statute is silent, agency vacancies are governed by general government-wide
laws such as the Vacancies Act386 and, in some cases, agency succession rules.
The application of the Vacancies Act in the presence of other statutory agency
succession rules came into question in 2017 when the Consumer Financial Protection
Bureau’s (CFPB) Director Richard Cordray resigned. Before resigning, Cordray
named Leandra English, then Cordray’s chief of staff, as Deputy Director with the
understanding that the CFPB’s authorizing statute stipulated that the Deputy Director serves as the Acting Director in the absence or unavailability of the Director.387
Yet upon Cordray’s resignation, President Trump, citing the Vacancies Act, installed
Mick Mulvaney, Director of the Office of Management and Budget, as Acting Director of the CFPB. In a recent decision on the issue, the U. S. District Court for the
District of Columbia found that, in part because there is no statutory language in
the CFPB’s authorizing statute that expressly makes the Vacancies Act inapplicable,
President Trump was justified in appointing Mulvaney.388
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.389 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. Additionally, the President’s responsibility for formulating a national budget gives him further control over agencies,
as OMB works with agencies throughout the budget process to make decisions about
how to prioritize resources and to oversee budget execution.390
In 1981, President Reagan issued Executive Order 12,291, which established
centralized OMB review of proposed agency rules.391 Agencies are required to subject
proposed rules to cost-benefit analysis and to submit rules to OMB for review before
386. Federal Vacancies Reform Act of 1998, Pub. L. No. 105-277, 112 Stat. 2681 (codified at 5 U.S.C.
§§ 3345-3349d (2017)).
387. 12 U.S.C. § 5491(b)(5)(B) (2017).
388. English v. Trump, 279 F. Supp. 3d 307 (D.D.C. 2018). The court also rejected the argument that
the CFPB is an independent agency contemplated to be exempt from the Vacancies Act.
389. Pub. L. No. 67-13, 42 Stat. 20 (1921).
390. See Office of Mgmt. & Budget, Exec. Office of the President, OMB Circular A-11
(2017). Eloise Pasachoff, The President’s Budget as a Source of Agency Policy Control, 125 Yale L. J.
2182 (2016) (providing a comprehensive overview of the President’s use of OMB budget coordination
to exert political control over agencies)
391. Exec. Order No. 12,291, 46 Fed. Reg. 13,193 (Feb. 19, 1981); 3 C.F.R., 1981 Comp., pt. 127.
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promulgation.392 While this executive order has been amended to limit this requirement to significant regulations, all subsequent presidents have maintained review.393
Finally, 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.394 This review process serves to help the White House develop the President’s legislative program and furthers coordination across the executive branch.395
Table 12 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.396 In one form, the President must submit to Congress 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
392. 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).
In 2012, President Obama issued Executive Order 13,609, which requires agencies to include in their
regulatory plans a summary of their international regulatory cooperation activities that are reasonably
anticipated to lead to significant regulations. Exec. Order 13,609, 77 Fed. Reg. 26,413 (May 4, 2012).
393. Exec. Order No. 12,866, 58 Fed. Reg. 51,735 (Oct. 4, 1993) (establishing additional policies and
procedures for regulatory planning and review). 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 13,422 (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). In 2017, President
Trump issued Executive Order 13,771, which (a) specified that, for fiscal year 2017, whenever an executive department or agency proposes or promulgates a new regulation, it must identify at least two existing regulations to be repealed and (b) beginning with fiscal year 2018, required additional regulatory
cost and saving submissions to be included in regulatory plans required under Executive Order 12,866.
Exec. Order No. 13,771, 82 Fed. Reg. 9,889 (Jan. 30, 2017). It is worth noting that, historically, agency
participation in the regulatory planning process has been sporadic at best. Jennifer Nou & Edward H.
Stiglitz, Strategic Rulemaking Disclosure, 89 S. Cal. L. Rev. 733 (2016) (finding that agencies only
report about 28 percent of their proposed rules in the Unified Agenda).
394. Office of Mgmt. & Budget, Exec. 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),
http://www.citizen.org/documents/OMBDocument1.pdf. 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).
395. Office of Mgmt. & Budget, Exec. Office of the President, OMB Circular No. A-19
§ 6(b) (1979). There is some question as to the strength of this control mechanism. See Jarrod Shobe,
Agencies as Legislators: An Empirical Study of the Role of Agencies in the Legislative Process, 85 Geo.
Wash. L. Rev. 451, 488-89 (2017) (suggesting that the expertise of agencies exceeds that of OMB staff
involved in legislative review and that sustained review is usually limited to politically sensitive legislation).
396. However, even if an agency is exempt from OMB budget review, the agency is still required to submit information for inclusion in budget documents (which OMB incorporates without revision). Office of Mgmt. & Budget, Exec. Office of the President, OMB Circular A-11 § 25.1 (2017).
The Creation and Design of Federal Agencies

103

OMB review. An agency’s ability to bypass OMB review of budgets, regulations, and
communications is determined partly in statute, but also importantly by informal
agreement, with certain agencies claiming exceptions based upon their structure and
legal status.
Table 12. Agencies Excluded from OMB Review of Budgets, Rulemaking, and Legislation
Budget

Rulemaking

Legislation and Testimony

(3) Statute exempts
(4) The agency asserts
agency from
“informal” legislative
(1) Statute exempts
submitting its
bypass authority
agency from
communications to
without any explicit
(5) Agency is not a
submitting its
(2) Agency exempted
OMB for coordination statutory authority
department, agency,
budget to OMB prior
from submitting
& clearance prior
even though OMB
or instrumentality
to transmittal to
proposed and final
to transmittal to
Circular A-19 covers
of the United States
Congress
rules to OIRA
Congress
the agency
Government
CFPB
CFPB
CFPB
FCA
AMTRAK
CFTC
CFTC
CFTC
FMC
CPB
CPSC
CPSC
CPSC
FTC
LSC
CSHIB
FCC
CSHIB
MMC
NARAB
FAA
FDIC
DNFSB
NRC
NIBS
FCA
FEC
FAA
OSHRC
PRFOMB
FEC
FED
FCC
STB
SIPC
FED
FERC
FDIC
USIP
SJI
FERC
FHFA
FEC
USITC
TVA
FRTIB
FMC
FED
USPS
IRS
FTC
FERC
MSPB
NLRB
FHFA
NTSB
NRC
FRTIB
RRB
OCC
MSPB
SEC
OSHRC
NCUA
SSAB
PRC
NTSB
STB
SEC
OCC
USITC
OSC
USPS
RRC
SEC
STB
Note: Table includes list of agencies that are generally recognized either by statute, executive order, or longstanding
practice as excluded from centralized budgetary, regulatory, and legislative review by OMB.
OMB Budget Review: (1) Statutory law exempts agency from submitting its budget to OMB prior to transmittal to Congress.
See generally Appendix of statutory provisions (on file with authors and the Administrative Conference); Office of Mgmt. &
Budget, Exec. Office of the President, OMB Circular No. A-11 (2017); Memorandum from Jim Jukes, Assistant Director
for Legislative Reference, Office of Management and Budget, Agencies with Legislative and Budget “Bypass” Authorities
(Feb. 20, 2001), http://www.citizen.org/documents/OMBDocument1.pdf.
OMB Rule Review: (2) The agency is exempted from submitting all regulatory actions to the administrator of the Office of
Information and Regulatory Affairs (OIRA). See Exec. Order No. 12,866, 58 Fed. Reg. 51,735 (Sept. 30, 1993); 44 U.S.C. §
3502 (2017) (definition of agency and independent regulatory agency recognized by Executive Order 12,866).
OMB Legislation and Communications Review: (3) 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. (4) 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 12 U.S.C.
§ 250 (2017); Appendix of statutory provisions (on file with author and the Administrative Conference); Office of Mgmt. &
Budget, 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), 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-19 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 (merely an informal bypass). See Breger and Edles, supra note 9.
Not United States Instrumentality: (5) Some agency statutes specify that the agency is not a department, agency, or
instrumentality of the United States Government. Strictly speaking, statutory law and executive guidance regarding OMB
review applies exclusively to agencies or instrumentalities of the United States Government. Thus, these agencies may
be exempt from OMB review. See Memorandum from Jim Jukes, Assistant Director for Legislative Reference, Office of
Management and Budget, Agencies with Legislative and Budget “Bypass” Authorities (Feb. 20, 2001), http://www.citizen.
org/documents/OMBDocument1.pdf (suggesting these agencies have “informal” bypasses).

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e) Control Over Agency Litigation
Another source of centralized presidential control over the executive establishment is the President’s control over agency litigation.397 Congress has granted 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.”398 However, some agencies are authorized to litigate on their
own. For example, some agency statutes include language such as the agency “shall
have the power to sue and be sued, complain and defend, in its. . .name and through
its own counsel, in any State, Federal, or other court”399 or the agency “may act in
its own name and through its own attorneys. . .in any action, suit, or proceeding to
which” the agency is a party.400
The extent of litigating authority varies by level of court and by issue; the extent
of control over specific issues and courts varies across and even within agencies. Some
agencies have authority to litigate on all agency issues and some have authority to
litigate on only some issues. Thirty agency statutes contain language granting at least

397. Devins, Political Will, supra note 158; Elliott Karr, Independent Litigation Authority and Calls for
the Views of the Solicitor General, 77 Geo. Wash. L. Rev. 1080 (2009); Neal Devins & Michael Herz,
The Uneasy Case for Department of Justice Control of Federal Litigation, 5 J. Const. L. 558 (2003).
398. 28 U.S.C. § 516 (2017). In addition, 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) (2017).
399. 15 U.S.C. § 78ccc(b)(1) (2017) (granting the Securities Investor Protection Corporation independent litigating authority).
400. For example, the statute authorizing the Board of Governors of the Federal Reserve empowers the
Board to “act in its own name and through its own attorneys in enforcing any provision of this title,
regulations promulgated hereunder, or any other law or regulation, or in any action, suit, or proceeding to which the Board is a party and which involves the Board’s regulation or supervision of any bank,
bank holding company (as defined in section 1841 of this title), or other entity, or the administration
of its operations.” 12 U.S.C. § 248(p) (2017).
The Creation and Design of Federal Agencies

105

some independent litigating authority. 401 Whether or not Congress has granted an
agency litigating authority, and how much, is an important determinant of agency
insulation 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.402
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.403 Article I of the Constitution
provides Congress the power to give and withhold appropriations to set national
priorities and to compel agency action.404 Congress has other means of agency influence as well, including hearings and oversight.405 The fear of public exposure and the

401. Agencies whose current authorizing statutes contain provisions concerning independent litigating
authority include: Board of Governors of the Federal Reserve System; Commodity Futures Trading
Commission; Consumer Financial Protection Bureau; Consumer Product Safety Commission;
Departments of Energy, Justice, and Labor; Export-Import Bank of the United States; Farm Credit
System Insurance Corporation; Federal Agricultural Mortgage Corporation; Federal Deposit Insurance
Corporation; Federal Election Commission; Federal Energy Regulatory Commission; Federal Housing
Finance Agency; Federal Labor Relations Authority; Federal Trade Commission; Government National
Mortgage Association; Inter-American Foundation; Legal Services Corporation; Merit Systems Protection Board; National Consumer Cooperative Bank; National Credit Union Administration; National
Transportation Safety Board; Overseas Private Investment Corporation; Pension Benefit Guaranty
Corporation; Puerto Rico Financial Oversight and Management Board; Securities Investor Protection
Corporation; Surface Transportation Board; United States African Development Foundation; United
States Institute of Peace; United States International Trade Commission. For discussion of potential
problems arising from independent litigating authority, see Daniel A. Farber & Anne Joseph O’Connell,
Agencies as Adversaries, 105 Cal. L. Rev. 1375, 1465-1468 (2017) [hereinafter Farber and O’Connell,
Agencies as Adversaries]; George F. Fraley III, Is the Fox Watching the Henhouse: The Administration’s
Control of FEC Litigation through the Solicitor General, 9 Admin. L.J. 1215 (1996).
402. Indeed, along with OMB bypass authority, the authority to litigate separately from the Department of Justice is among the statutory features most highly correlated with agency policy independence. See Selin, supra note 2, at 978.
403. Article II, sec. 2 provides that “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. 2, § 2. See generally Kate Stith, Congress’s Power of the Purse, 97 Yale L.J 1343 (1987).
404. U.S. Const., art. I, § 9, cl. 7.
405. See, e.g., Morton Rosenberg, When Congress Comes Calling: A Study on the Principles, Practices, and Pragmatics of Legislative Inquiry (2017) (providing an excellent
account of congressional oversight, including the resources at Congress’s disposal and descriptions of
how oversight works in practice); Feinstein, supra note 196, at 283-286 (2017) (finding that agencies
with leaders that are subject to Senate confirmation are subject to more oversight hearings); Robert
J. McGrath, Congressional Oversight Hearings and Policy Control, 38 Legis. Stud. Q. 349 (2013)
(demonstrating that oversight activity in the form of hearings depends upon the ideological relationship between committees and the executive branch and the policymaking expertise of each committee).
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implied threat of legislative or budgetary change behind oversight is a powerful tool
that compels agencies to heed congressional directions.406
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.”407 As a result, no federal agency may spend federal revenues or funds
except if Congress has appropriated them.408 For example, ordinarily, when an agency
receives fees for services, whether an application fee or a fee to enter a national park
or an assessment on a financial institution, the agency must return those funds to
the Treasury. Agencies cannot spend these revenues unless explicitly allowed to do
so by Congress in 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 (congressionally directed spending), which were communicated informally, in
legislative reports accompanying appropriations bills, or the text of bills themselves.
However, since the beginning of the 112th Congress, the House and Senate have
observed a ban on earmarks. 409 Congress increasingly relies on limitation riders in
appropriations bills to direct agency activity.410 These limitations take the form of
“none of the funds appropriated under this act may be used to pay for action X” and

406. See, e.g., Brian D. Feinstein, Congress in the Administrative State, 95 Wash. U. L. Rev. (2018)
(finding that oversight hearings are successful in shaping future agency behavior); Rao, Administrative
Collusion, supra note 184, 1483-84 (2015) (explaining that influential congressmen and committee
chairmen often exercise substantial influence and control over the agencies they oversee).
407. Rao, Removal, supra note 175, at 1483-84.
408. But see Paul F. Figley, The Judgment Fund: America’s Deepest Pocket and Its Susceptibility to
Executive Branch Misuse, 18 J. Const. L. 145 (2015) (detailing how executive branch officials may use
payments from the Judgment Fund (31 U.S.C. § 1304 (2017)) to supplement appropriations).
409. In 2018, members from both parties spoke in a public debate over whether or not to reinstate
earmarks. House Members’ Day Hearing on Article I: Effective Oversight and the Power of the Purse
Before the H. Comm. on Rules, 115th Cong. (2018); Susan Davis, House GOP to Debate Bringing
Earmarks Back, Nat’l Pub. Radio, Jan. 14, 2018. See also Mariano-Florentino Cuellar, Earmarking
Earmarking, 49 Harv. J. on Leg. 249 (2012) (providing a comprehensive overview of earmarking
as a practice, including the arguments for and against earmarks); Joseph White, Jimmy Carter’s and
James Miller’s Revenge: The Reasons and the Consequences for Presidential and Congressional Power of
Measures to Ban Congressional Earmarks, 65 Case W. Res. L. Rev. 1175 (2015) (detailing the history
and development of earmarks and calls for reform).
410. Jason A. MacDonald, Limitation Riders and Congressional Influence over Bureaucratic Policy
Decisions, 104 Am. Pol. Sci. Rev. 766 (2010); Neal E. Devins, Regulation of Government Agencies
Through Limitation Riders, 36 Duke L.J. 456 (1987).
The Creation and Design of Federal Agencies

107

provide an effective means of limiting agency discretion.411 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
autonomous the agency is from Congress.412 Table 13 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 banking activities. The last column
includes agencies whose external funding represents a notable portion of their yearly
outlays, and Table 14 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.

411. 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).
412. Prakash, supra note 158, at 1824; Charles Kruly, Self-Funding and Agency Independence, 81 Geo.
Wash. L. Rev. 1733 (2013).
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Table 13. Agency Statutes Providing Sources of Funding Other than Appropriations
(1) Gifts and Donations
MSPB
ACUS
MUSUF
AOA
NARA
ARC
NASA
ARMY
NAVY
BGSEEF
NEA
BIA
NEH
BOP
NCA
CFTC
NCUA
CIA
NGPRA
CNCS
NPS
CPSC
NTSB
DHS
ODNCP
DOC
OGE
DOD
PBGC
DOE
PRFOMB
DOED
RRB
DOJ
SBA
DOL
SEC
DOT
SIPC
DRA
STAT
FDA
TRS
FEMA
TVA
FHITF
USADF
FLETC
USAF
FODSITF
USCG
FSMITF
USDA
GSA
USFWS
HSTSF
USGS
HUD
USIP
IAF
USITC
IMLS
USPC
INT
USPS
JMMFF
USTR
LSC
MCC

(2) Reasonable Payment for
Administrative Services
PRFOMB
FHFA
ACUS
FLETC SBA
AHRQ
SEC
AMTRAK FTC
GNMA SIPC
ANGTP
SLSDC
GSA
ARMY
STAT
HHS
BLM
TRS
HUD
BOR
TVA
IHS
CBP
USAF
INT
CFTC
USCG
LSC
CIA
MWAA USDA
CNCS
USFS
NARA
CPB
NARAB USFWS
DHS
USGS
NASA
DNDO
USIP
NAVY
DOC
USPS
NCUA
DOD
NGPRA USPTO
DODEA
VHA
NIGC
DOE
NIH
DOED
NIST
DOJ
NOAA
DOT
NPS
EEOC
NRC
EXIM
NSA
FAMC
NTIS
FCA
NTSB
FCC
OCC
FCIC
OPIC
FCSIC
OSMR
FDA
FDIC
FEC
FERC

(3) Authorizes
Working Capital Fund
HSTFS
BEP
HUD
BGSEEF
INT
BLM
MINT
BOR
MUSUF
CFPB
NCA
CFTC
NCUA
CIA
NIH
CNCS
NIST
DHS
NPS
DOC
OPIC
DOD
OSMR
DOE
PBGC
DOED
RRB
DOJ
SBA
DOL
SEC
DOT
SIPC
EEOC
STAT
FAMC
TRS
FCA
USCG
FCIC
USDA
FCSC
USFS
FCSIC
USGS
FDIC
USIP
FHITF
USPC
GSA
USPS
HHS
USPTO
HIS

(4) Business
or banking
activities
CCC
EXIM
FAMC
FCA
FCIC
FCSIC
FDIC
FED
FHFA
FRTIB
GNMA
NCCB
NCUA
OPIC
SBA
SIPC

(5) Fees & charges cover
substantial portion of
operating expenses
HSTSF
AMTRAK
IAF
ARC
JMMFF
CCC
MWAA
CFPB
NARAB
CPB
NCCB
DRA
NCUA
EXIM
NGPRA
FAMC
NIGC
FCC
OCC
FCIC
OPIC
FDA
PBGC
FDIC
PRFMOB
FED
SEC
FERC
SIPC
FHFA
SLSDC
FHITF
TVA
FODSITF
USIP
GNMA
USPS

Note: 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 charges for, among other things, products, services,
and access to data. (3) 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. (4) 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. (5) 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.

The Creation and Design of Federal Agencies

109

Table 14. 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 (TRS)
Bureau of Engraving and Printing (TRS)
Note: Identification of agencies and bureaus in this table based on Prakash, 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 in 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 by which agency officials seek approval of committees prior to
taking action.413 The amount of oversight also varies depending upon the character
of the agency’s work. Some agencies implement laws in a specific limited policy area,
and the work of other agencies involves numerous policy areas.414
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
413. For details, see Louis Fisher, Cong. Research Serv., RL33151, Committee Controls
of Agency Decisions (2005).
414. For information on agencies with multiple policy missions, see, for example, Eric Biber, Too Many
Things to Do: How to Deal with the Dysfunction of Multiple Goal Agencies, 33 Harv. Envtl. L. Rev. 1
(2009); Yoon-Ho Alex Lee, Beyond Agency Core Mission, 68 Admin. L. Rev. 551 (2016).
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House and one in the Senate, and that this committee should be a permanent standing committee with a nonpartisan staff.”415 At the time of the Commission’s report
there were 108 different committees and subcommittees responsible for overseeing
the Department of Homeland Security.416 While the decision to merge a collection of
agencies and bureaus into one department was grounded in the need for coordinated
defense against terrorism, it also exacerbated committee conflict and jurisdictional
turf wars.417 The concern with too many committees is that an agency may be pulled
in different directions and any efforts to direct or reform the agency must be agreed
upon by scores of committees. Additionally, empirical research on the question
suggests that Congress has less influence over agencies overseen by a greater number
of committees relative to the President.418
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 to the chambers as a whole.419 Congress also empowers advisory
commissions to work with agencies to provide advice to agencies and help Congress
monitor the agency.420 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.421 On the
other hand, some agencies have flexibility regarding the establishment of committees.
415. Nat’l Comm’n on Terrorist Attacks Upon the United States, The 9-11 Commission Report 421 (2004), http://www.911commission.gov/report/911Report.pdf.
416. See Who Oversees Homeland Security? Um, Who Doesn’t?, Nat’l Pub. Radio, July 10, 2010,
http://www.npr.org/templates/story/story.php?storyId=128642876 (last visited Jan. 31, 2011).
417. E.g., H.R. 5005, The Homeland Security Act of 2002, Days 1 and 2 Before the H. Comm. on
Homeland Security, 107th Cong. (July 15-16, 2002) (statement of Rep. Jane Harman: “I have been
saying that the War on Terrorism has expanded to the War on Turf. That may be the tougher war. . .”);
Dara Kay Cohen, Mariano-Florentino Cuellar & Barry R. Weingast, Crisis Bureaucracy: Homeland
Security and the Political Design of Legal Mandates, 59 Stan. L. Rev. 673, 719 (2006) (“[T]hough all
members may have wanted to achieve improved homeland security coordination, they also sought to
control a piece of the bureaucracy.”).
418. Clinton, Lewis & Selin, supra note 196.
419. Rules of the U.S. House of Representatives require the Clerk of the House of Representatives to
submit a list of reports which it is the duty of any officer or department to make to Congress. H. Res.
5, 115th Cong. (2017) (enacted); Constitution, Jefferson’s Manual and the Rules of the House of Representatives of the United States, H.R. Doc. No. 114-192, Rule 2, Clause 2(b) (2017); Clerk of the
U.S. House of Representatives, 115th Cong., Reports to be Made to Congress (H.R.
Doc. No. 115-4) (2017). For a discussion of issues arising from reporting and access requirements, see
Farber & O’Connell, Agencies as Adversaries, supra note 401, at 1446-47.
420. See, e.g., Moffitt, supra note 57; Steven J. Balla & John R. Wright, Interest Groups, Advisory
Committees, and Congressional Control of the Bureaucracy, 45 Am. J. Pol. Sci. 299 (2001); Steven P.
Croley & William F. Funk, The Federal Advisory Committee Act and Good Government, 14 Yale J. on
Reg. 451 (1997); Stephane Lavertu & David L. Weimer, Federal Advisory Committees, Policy Expertise,
and the Approval of Drugs and Medical Devices at the FDA, 21 J. Pub. Admin. Res. & Theory 211
(2010); Susan L. Moffitt, Promoting Agency Reputation through Public Advice: Advisory Committee Use
in the FDA, 72 J. Pol. 880 (2010).
421. 7 U.S.C. § 2(a)(15) (2017).
The Creation and Design of Federal Agencies

111

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.”422 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 the 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 15).423 The Chief Financial Officers Act of 1990 was intended to improve the
financial management practices of federal entities.424 It required the designation of a
chief financial officer (CFO), appointed by the President and confirmed by the Senate,
with an appropriate managerial and financial management background in all large
agencies.425 The statute also mandates that a CFO be installed in other, smaller agencies, 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.426
The Information Technology Management Reform Act, mandated the designation of a chief information officer (CIO) in federal agencies.427 The CIO is 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.428 The statute’s information technology
requirements apply broadly to “executive agencies” as defined in 41 U.S.C. § 133: any

422. 42 U.S.C. § 7234 (2017).
423. Brass, Gen. Mgmt. Laws, supra note 143. See also Federal Administrative Procedure Sourcebook (William F. Funk & Jeffrey S. Lubbers, eds., 5th ed. 2016) (containing text and
commentary on 22 cross-cutting government-wide procedural statutes) [hereinafter Procedure
Sourcebook].
424. Chief Financial Officers Act of 1990, Pub. L. No. 101-576, 104 Stat. 2838 (1990).
425. 31 U.S.C. § 901 (2017).
426. Id. § 901(b)(2). There are 90 other agencies that also have Chief Information Officers and are part of
the Small Agency CIO Council. There is no statutory mandate requiring these positions in small agencies.
427. Pub. L. No. 104-106, 110 Stat. 203, 680-89 (1996) (commonly referred to as the Clinger-Cohen Act).
428. 40 U.S.C. § 11315 (2017).
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executive department, military department, independent establishment, or wholly
owned Government corporation.429
Finally, Congress enacted the Inspector General Act of 1978 to help root out
waste, fraud, and abuse in federal management.430 The Act and its amendments
mandated the creation of Offices of Inspector General in various large agencies, designated “establishments,” across the executive branch.431 Each establishment’s Inspector
General (IG) is appointed by the President 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.”432 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.433 The Act adds a layer
of agency accountability to elected officials, 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 other federal “entities” that fall under
the jurisdiction of the Inspector General Act.434 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. Finally, an agency that is named a “federal entity”
must have an audit office that conducts annual agency audits and reports the results
and any other investigative activities to both chambers of Congress and the Director
of OMB. The most recent list published in the Federal Register was in 2014.435
429. 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.
430. 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 (2017). 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).
431. Id. app. 3 § 3(b).
432. Id. app. 3 § 3(a).
433. Id. app. 3 § 3(b).
434. Id. app. 3 §§ 2, 8G.
435. See Office of Management and Budget, Fiscal Year (FY) 2013 and 2014 List of Designated Federal
Entities and Federal Entities, 79 Fed. Reg. 1896 (Jan. 10, 2014) (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).
The Creation and Design of Federal Agencies

113

Table 15. 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 (40
U.S.C. § 11315). 436

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)).

“Establishment”
Appointed by
the President
by and with
the advice and
consent of the
Senate
DHS
DOC
DOD
DOE
DOED
DOJ
DOL
DOT
DVA
HHS
HUD
INT
NASA
STAT
TRS
USDA

Appointed by
the President
by and with
the advice and
consent of the
Senate

Appointed
by the
head of the
agency
CNCS a
GSA
NRC
OPM
SBA
SSA
USAID

ANGTP
ARC
ARMY
ATF
BBG
BGSEEF
CCC
CFTC
CIA
CNCS
CPSC
CSHIB
DHS
DNFSB
DOC
DOD
DOE
DOED
DOJ
DOL
DOT
DRA
DVA
EAC
EEOC
EPA
EXIM
FAMC
FCA
FCC
FCIC

FCSIC
FDIC
FEC
FED
FHFA
FHITF
FLRA
FMC
FMCS
FMSHRC
FODSITF
FRTIB
FSMITF
FTC
GNMA
GSA
HHS
HSTSF
IAF
INT
JMMFF
MCC
MMC
MSPB
MUSUF
MWAA
NARA
NASA
NAVY
NCCB
NCUA

NGPRA
NLRB
NMB
NRC
NTSB
OAP
ODNI
OGE
OPIC
OPM
OSC
OSHRC
PBGC
PC
PCLOB
RRB
SBA
SEC
SSA
SSAB
STAT
STB
STLSDC
TDA
TRS
TVA
USADF
USAF
USDA
USIP
USITC

CIA b
CNCS
DHS
DOC
DOD
DOE
DOED
DOJ
DOL
DOT
DVA
EPA
EXIM
FDIC
FEMA
FHFA
GSA
HUD
INT
NASA
NRC
NRO c
NSAc
ODNIb
OPM
RRB
SBA
SSA
STAT
TRS
TVA
USAID
USDA

“Designated
Federal Entity”
Appointed by
the head of the
agency
AMTRAK
ARC
ARMYd
BBG
CFPB
CFTC
CPB
CPSC
DIA
EAC
EEOC
FCA
FCC
FEC
FED
FLRA
FMC
LSC
NARA
NAVYd
NCUA
NEA
NEH
NGIA
NLRB
NRO c
NSAc
PBGC
PC
PRC
SEC
USAFd
USITC
USPS

“Federal
Entity”
Has an audit
office
ACUS
ANGTP
BGSEEF
CSHIB
DNFSB
DRA
FCSIC
FMCS
FMSHRC
FRTIB
FSOC
HSTSF
IAF
IMLS
JMMFF
MCC
MMC
MSPB
MUSUF
NMB
NTSB
OGE
OPIC
OSC
OSHRC
TDA
USADF
USIP

a
The Corporation for National and Community Service does not qualify as an agency subject to the Chief Financial Officers
Act, but the agency’s authorizing statute requires that CNCS comply with the auditing and reporting requirements in the
CFO Act. 42 U.S.C. § 12645e (2017).
b
While not explicitly included in the Inspector General Act, the Central Intelligence Agency and the Office of the Director
of National Intelligence have statutorily mandated Inspectors General who are appointed by the President by and with the
advice and consent of the Senate. See 50 U.S.C. § 3517(a) (2017) (CIA); 50 U.S.C. § 3033(c)(1) (2017) (ODNI).
c
The National Reconnaissance Office and the National Security Agency are both listed as an establishment in 5 U.S.C. app.
3 § 12(2) (2017) and as a designated federal entity by the Office of Management and Budget. As such, they are listed in both
columns.
d
While not explicitly recognized by the Office of Management and Budget as designated federal entities, the Air Force, Army,
and Navy have Inspectors General who are appointed by the head of the agency. See 10 U.S.C. § 3020(a) (2017) (Army); 10
U.S.C. § 5020(a) (2017) (Navy); 10 U.S.C. § 8020(a) (2017) (Air Force).

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Relatedly, in 1976, Congress enacted the Government in the Sunshine Act (Sunshine Act), which requires most multi-member bodies to conduct their business in
a manner that facilitates public scrutiny and involvement.436 Specifically, it requires
that agencies provide advance notice of meetings and make those meetings accessible.
Table 16 includes the list of agencies subject to the law. Of course, there are numerous
other cross-cutting statutes governing agency behavior, such as the Administrative
Procedure Act, Freedom of Information Act, Federal Tort Claims Act, National
Environmental Policy Act, and many more.437
Table 16. Agencies Subject to the Sunshine Act
AMTRAK
BGSEEF
CEQ
CFTC
CNCS
CPB
CPSC
CSHIB

DNFSB
EAC
EEOC
EXIM
FCA
FCC
FCSC
FDIC
FEC

FED
FERC
FHITF
FLRA
FMC
FMSHRC
FODSITF
FRTIB
FMITF

FTC
HSTSF
IAF
IRSOB
JMMFF
LSC
MMC
MSPB
MUSUF

NCUA
NLRB
NMB
NRC
NTSB
OPIC
OSHRC
PCLOB
PRC

RRB
SEC
STB
USADF
USITC
USPC
USPS

Note: There has been significant debate over the entities that are subject to the Sunshine Act. This table
lists all agencies that are either explicitly contemplated by the statutory language in § 552b or are legally
subject to the Sunshine Act as a result of litigation or other government determinations. See 5 U.S.C. §
552b(a) (2017); 42 U.S.C. § 2996c(g) (2017) (Legal Services Corporation subject to § 552b); 47 U.S.C.
§ 396(g)(4) (2017) (Corporation for Public Broadcasting meetings shall be open to the public); Energy
Research Foundation v. Defense Nuclear Facilities Safety Board, 917 F.2d 581, 584-85 (D.C. Cir. 1990)
(Defense Nuclear Facilities Safety Board is an agency under § 552b); Main Street Legal Services, Inc. v.
National Security Council, 881 F.3d 542, 547-58 (2d Cir. 2016) (National Security Agency is not an agency
subject to § 552b, as its sole function is to advise and assist the President); Pacific Legal Foundation
v. Council on Environmental Quality, 636 F.2d 1259, 1264-65 (D.C. Cir. 1980) (Council on Environmental
Quality is an agency subject to § 552b); Rushforth v. Council of Economic Advisers, 762 F.2d 1038, 1042-43
(D.C. Cir. 1985) (Council of Economic Advisers is not an agency subject to § 552b, as its sole function is to
advise and assist the President); Nat’l Railroad Passenger Corp. – Applicability of Freedom of Information,
Privacy and Sunshine Acts, 57 Comp. Gen. 773 (1979) (AMTRAK subject to the Sunshine Act).

The design of administrative procedures can influence agencies’ responsiveness.
While elected officials may want quick and decisive action, an agency may not be able
to do what elected officials ask. For example, commissions can take longer to make determinations as a feature of being a collective body. One way Congress restricts agency
freedom is to require that agencies get approval from outside bodies before taking
authoritative action (Table 17).438 For example, if the Secretary of Defense concludes
that action by the National Aeronautics and Space Administration is adverse to the
policies of the Department of Defense, the two agencies must reach an agreement or

436. The Sunshine Act applies to multi-member bodies that have more than half their members nominated by the President and confirmed by the Senate. See 5 U.S.C. § 552b(a) (2017).
437. See Procedure Sourcebook, supra note 423.
438. The list of agencies in Table 17 is based on information from their respective current authorizing
statutes.
The Creation and Design of Federal Agencies

115

refer the matter to the President for final decision.439 Similarly, no grants may be made
from the National Institutes of Health without the approval of a technical review
board attached to the agency.440 The Chief Executive Officer of the Corporation for
National and 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.441 Some statutes
still require legislative approval despite the Supreme Court’s invalidation of this tool
in INS v. Chadha.442 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.443 Furthermore, as discussed above, presidents since Reagan
have required executive agencies to send their proposed and final regulations (not
significant regulations) to OMB’s Office of Information and Regulatory Affairs for
approval before they can be issued.
Table 17. Agencies with Authorizing Statutes That Require Prior Approval by Other Agency
or Congress for Certain Actions
ACUS
AMTRAK
ARMY
ATSDR
BIA
BOR
CCC
CFPB
CFTC
CIA
CNCA
CPSC
DHS
DNDO
DOC

DOD
DOE
DOED
DOJ
DOT
EXIM
FAA
FCA
FCIC
FEC
FED
FSA
FTC
GNMA
HHA

IHS
IRS
NASA
NAVY
NEA
NIGC
NIH
NIST
NNSA
NTIA
ODNCP
ODNI
RRB
SBA
SEC

SIPC
STAT
TRS
TSA
TVA
USAF
ISCG
USDA
USFS
USGS
USITC
USPS
USPTO
VHA

The internal process of agency decision-making 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 18 includes a list of all agencies engaged in adjudication.
The first column includes lists of agencies whose authorizing statutes give the agency
or a subpart of the agency authority to conduct or hold hearings or adjudications. The
second column lists agencies that the Office of Personnel Management recognized as
employing administrative law judges in 2017.
439. 51 U.S.C. § 20114(b) (2017).
440. 42 U.S.C. § 283k(b) (2017); Seidman, supra note 16, at 182-83.
441. 42 U.S.C. § 12651f(b)(3)(A) (2017).
442. 462 U.S. 919, 956-59 (1983).
443. 7 U.S.C. § 16a(a) (2017).
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Sourcebook of United States Executive Agencies

Table 18. Agencies with Statutory Adjudicatory Authority
Agency

Main Authorizing Statute Includes
Provisions Authorizing Adjudicationa

Agency Employs Administrative
Law Judgesb

CFPB

X

X

CFTC

X

CPSC

X

CSHIB

X

DEA

X

DOC

X

DOE

X

DOED

X

DOL

X

DOT

X

EOIR

X

EPA
FCA

X
X

FCC

X

FDA

X

FDIC

X

FED

X

FERC

X

X

FLRA

X

X

FMC

X

X

FMSHRC

X

X

FTC

X

X

GNMA

X

HHS
HUD

X
X

INT

X
X

MSPB

X

NCUA

X

NEA

X

NLRB

X

NTSB

X
X

OSHRC

X

OSMR

X

PRC

X

SBA

X

X

SEC

X

X

The Creation and Design of Federal Agencies

X

117

Table 18. Agencies with Statutory Adjudicatory Authority
Agency

Main Authorizing Statute Includes
Provisions Authorizing Adjudicationa

Agency Employs Administrative
Law Judgesb

SSA

X

USCG

X

USDA

X

USITC

X

USPC

X

USPS

X

X
X

Note: This information is available with statutory citations 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 subpart of the agency
authority to conduct or hold hearings or adjudications. This list relies exclusively on primary authorizing
statutes.
b
The list in this column was created by referring to the Office of Personnel Management’s list of federal
administrative law judges by agency and level (as of March 2017), https://www.opm.gov/servicesfor-agencies/administrative-law-judges/#url=ALJs-by-Agency. Other agencies occasionally use ALJs,
borrowed from agencies that employ them (with the permission of the ALJ and OPM). See 5 U.S.C. § 3344
(2017). These agencies include the MSPB, and various banking regulatory agencies.

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 to
set general policy. Table 19 lists the agencies engaged and not engaged in rulemaking
of different forms. Specifically, it lists all agencies that have promulgated a rule deemed
significant under Executive Order 12,866 in the last 15 years.444

444. A significant regulatory action means any regulatory action that is likely to result in a rule that
may have an annual effect on the economy of $100 million or more or adversely affect the economy in
a material way; create a serious inconsistency or otherwise interfere with an action taken or planned
by another agency; materially alter the budgetary impact of entitlements, grants, user fees, or loan
programs; or raise novel or legal policy issues arising out of legal mandates or the President’s priorities.
Exec. Order No. 12,866, § 3(f), 58 Fed. Reg. 51735 (1993).
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Table 19. Details of Federal Agencies’ Rulemaking Activities
Agency has promulgated a significant rule in the
last 15 yearsa

Agency has not promulgated a rule in the last 15
years

ACF
ACL
AMS
AOA
APHIS
ARMY
ATF
BFS
BIA
BIS
BLM
BOEM
BOP
BOR
BSEE
CBP
CCC
CFPB
CFTC
CNCS
DARS
DEA
DHS
DOC
DOD
DOE
DOED
DOJ
DOL
DOT
DVA
EBSA
EDA
EEOC
EOIR
EPA
ETA
FAA
FAS
FBI
FCA

ANGTP
ARC
ASH
ATSDR
BGSEEF
BILA
BLS
BVA
CEA
CFBCI
CIVR
CPB
DARPA
DCA
DCAA
DCMA
DFAS
DHA
DIA
DISA
DLSA
DMA
DNDO
DODATL
DODEA
DODPR
DPOW
DRA
DSCA
DSS
DTIC
DTRA
DTSA

FCC
FCIC
FDA
FDIC
FED
FEMA
FHWA
FHFA
FINCEN
FMC
FMCS
FMCSA
FNS
FRA
FSA
FSIS
FSOC
FTA
FTC
GIPSA
GSA
HHS
HUD
HIS
IMLS
INT
IRS
ITA
MA
MSHA
NARA
NASA
NAVY
NCUA
NEA
NEH
NHTSA
NIFA
NIGC
NIH
NIST

NLRB
NOAA
NPS
NRC
NRCS
NTIS
OCC
ODNCP
ODNI
OFCCP
OGE
OJP
OLMS
OMB
ONRR
OPM
OSHA
OSMR
OWCP
PGBC
OC
PHMSA
RBCS
RHS
RRB
RUS
SBA
SEC
SSA
STAT
TRS
TSA
USAF
USAID
USCG
USDA
USFS
USFWS
USPTO
VETS
WHD

EOUSA
EOUST
ERS
ESA
FAMC
FHA
FHITF
FIO
FLETC
FODSITF
FSMITF
GNMA
IRSOB
JCRA
HITSA
LPO
MBDA
MDA
MINT
MMC
MUSUF
MWAA
NARAB
NASS
NCA
NCCB
NGPRA
NIBS
NRO
OAM
OAP
OCPD
ODEP

OEA
OEDE
OELA
OESA
OFHEO
OFPM
OFSA
OHC
OHHLHC
OII
ONCHIT
ONSE
OPE
OPIH
OVAW
PFPA
PRFOMB
PSER
RMA
SIPC
SJI
SSAB
TDA
TRMC
USGS
USIP
USMS
USSS
VBA
VHA
WB
WHS

Note: Data as of Dec. 15, 2017
a
Identified by the Federal Register as promulgating a regulatory action deemed significant under
Executive Order 12,866.

In total, there are 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 affect 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 over-

The Creation and Design of Federal Agencies

119

seers.445 When agencies are removed from direct political oversight, this sometimes
makes agencies more amenable to influence by the agency’s 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.

445. See, e.g., Sanford C. Gordon & Catherine Hafer, Flexing Muscle: Corporate Political Expenditures
as Signals to the Bureaucracy, 99 Am. Pol. Sci. Rev. 245 (2005); Simon F. Haeder & Susan Webb
Yackee, Influence and the Administrative Process: Lobbying the U.S. President’s Office of Management
and Budget, 109 Am. Pol. Sci. Rev. 507 (2015); Thomas O. McGarity, Administrative Law as Blood
Sport: Policy Erosion in a Highly Partisan Age, 61 Duke L. J. 1671 (2012); Jason Webb Yackee & Susan
Webb Yackee, A Bias Towards Business? Assessing Interest Group Influence on the U.S. Bureaucracy, 68 J.
Pol. 128 (2006).
120

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Conclusion

T

he 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 and/or efficient by increasing the number of political
appointees, by 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
government-wide reach such as the Office of Management and Budget, Office of
Personnel Management, and General Services Administration. The a penetration
of political appointees arguably allows for more democratic accountability. Elected

Conclusion

121

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.
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.446 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.447
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 two and three 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. Yet
such changes have made the federal personnel system harder to monitor and control.
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 dramatic. 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. Precise 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.
446. John Hudak, Presidential Pork: White House Influence over the Distribution
of Federal Grants (2014); Douglas L. Kriner and Andrew Reeves, The Particularistic
President: Executive Branch Politics and Political Inequality (2015).
447. Lewis, Presidential Appt., supra note 146; David E. Lewis & Nick Gallo, The Consequences of
Presidential Patronage for Agency Performance, 22 J. Pub. Admin. Res. & Theory 219 (2012).
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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, an ongoing retirement wave, and a current reduction in
hiring.448 Budget cutting proposals targeted at federal employees reflect dissatisfaction
with the size, structure, and efficiency of 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 has been the growth of presidential and congressional mechanisms of control over agency policy. The expanded role, authority, and size of the
White House Office and the Executive Office of the President and the development
and increased use presidential tools such as OMB budget and rule review have affected
the way agencies in the executive establishment make policy. Similarly, Congress’s
increased use of appropriations riders and formal review procedures such as the
Congressional Review Act have influenced agency decision-making. Yet, ironically,
as the President and Congress have increasingly tried to enhance their control over
the executive establishment, new ways of reviewing agency policy and exerting political influence may have resulted in an increase in the insulation of certain agencies.
Statutory prohibitions on the use of certain tools in agencies or exemptions from
traditional review procedures can free agencies from political interference and may
have implications for democratic accountability.
A final 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 cases 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
448. Paul A. Volcker et al., The Changing Nature of Government Service: A Woodrow Wilson School Task Force Final Report (2009), http://wws.princeton.edu/gstf/Volcker-Report.pdf.
Conclusion

123

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 Agency, 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.

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Appendix A-1

List of Agencies and
Subunits—By Agency Name449

Agency

Bureau

Administrative Conference of the United States
AMTRAK
Appalachian Regional Commission
Barry Goldwater Scholarship and Excellence in Education Foundation
Board of Governors of the Federal Reserve System
Consumer Financial Protection Bureau
Broadcasting Board of Governors
Board of Trustees for the Federal Old-Age and Survivors Insurance Trust Fund and the Federal Disability
Insurance Trust Fund

449. All agencies and subunits in this list fall within the definition of agency or politically important
subunit provided supra Part II, A, with two exceptions. First, while the National Indian Gaming
Commission does not fall within any of the three requirements for consideration as a “bureau,” the
Commission is included for consistency with the first edition of the Sourcebook and because of scholarly attention to the Commission’s independent structure. E.g., Breger & Edles, Established by Practice,
supra note 2. Second, whether the Puerto Rico Financial Oversight and Management Board satisfies
the Sourcebook’s definition of “agency” depends upon the individuals nominated by the President. If
the President appoints members suggested by specified members of Congress, Senate confirmation is
not required. 48 U.S.C. § 2121(2) (2017). However, because Senate confirmation is required if the
President appoints an individual who is not referenced in a list provided by Congress, the Financial
Oversight and Management Board is included. See id.
List of Agencies and Subunits—By Agency Name

125

Agency

Bureau

Central Intelligence Agency
Chemical Safety and Hazard Investigation Board
Commodity Futures Trading Commission
Consumer Product Safety Commission
Corporation for National and Community Service
Corporation for Public Broadcasting
Defense Nuclear Facilities Safety Board
Delta Regional Authority
Department of Agriculture
Agricultural Marketing Service
Agricultural Research Service
Animal and Plant Health Inspection Service
Commodity Credit Corporation
Economic Research Service
Farm Service Agency
Federal Crop Insurance Corporation
Food and Nutrition Service
Food Safety and Inspection Service
Foreign Agricultural Service
Forest Service
Grain Inspection, Packers, and Stockyards Administration
National Agricultural Statistics Service
National Institute of Food and Agriculture
Natural Resources Conservation Service
Risk Management Agency
Rural Business-Cooperative Service
Rural Housing Service
Rural Utilities Service
Department of Commerce
Bureau of Economic Analysis
Bureau of Industry and Security
Economics and Statistics Administration
Economic Development Administration
International Trade Administration
Minority Business Development Agency
National Institute of Standards and Technology
National Oceanic and Atmospheric Administration
National Technical Information Service
National Telecommunications and Information Administration
United States Census Bureau
United States Patent and Trademark Office

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Agency

Bureau

Department of Defense
Air Force
Army
Defense Acquisition Regulations System
Defense Advanced Research Projects Agency
Defense Commissary Agency
Defense Contract Audit Agency
Defense Contract Management Agency
Defense Finance and Accounting Service
Defense Health Agency
Defense Information Systems Agency
Defense Intelligence Agency
Defense Legal Services Agency
Defense Logistics Agency
Defense Media Activity
Defense POW/MIA Accounting Agency
Defense Security Cooperation Agency
Defense Security Service
Defense Technical Information Center
Defense Technology Security Administration
Defense Threat Reduction Agency
DOD Education Activity
DOD Test Resource Management Center
Joint Improvised-Threat Defeat Agency
Missile Defense Agency
National Geospatial-Intelligence Agency
National Reconnaissance Office
National Security Agency/Central Security Service
Navy
Office of Economic Adjustment
Pentagon Force Protection Agency
Under Secretary for Acquisition, Technology, and Logistics
Under Secretary for Personnel and Readiness
Washington Headquarters Services
Department of Education
Federal Student Aid
Office of Elementary and Secondary Education
Office of English Language Acquisition
Office of Innovation and Improvement
Office of Postsecondary Education
Office of Special Education and Rehabilitative Services

List of Agencies and Subunits—By Agency Name

127

Agency

Bureau

Department of Energy
Federal Energy Regulatory Commission
Loan Programs Office
National Nuclear Security Administration
Office of Acquisition Management
Office of Electricity Delivery and Energy Reliability
Office of Energy Efficiency and Renewable Energy
Office of Nuclear Safety Enforcement
Department of Health and Human Services
Administration for Children and Families
Administration for Community Living
Administration on Aging
Agency for Healthcare Research and Quality
Agency for Toxic Substances and Disease Registry
Centers for Disease Control and Prevention
Centers for Medicare and Medicaid Services
Food and Drug Administration
Health Resources and Services Administration
Indian Health Service
National Institutes of Health
Office of the Assistant Secretary for Health
Office of the National Coordinator for Health Information Technology
Substance Abuse and Mental Health Services Administration
Department of Homeland Security
Domestic Nuclear Detection Office
Federal Emergency Management Agency
Federal Law Enforcement Training Center
Transportation Security Administration
United States Citizenship and Immigration Services
United States Coast Guard
United States Customs and Border Protection
United States Immigration and Customs Enforcement
United States Secret Service
Department of Housing and Urban Development
Center for Faith-Based and Community Initiatives
Federal Housing Administration
Government National Mortgage Association
Office of Community Planning and Development
Office of Fair Housing and Equal Opportunity
Office of Field Policy and Management
Office of Healthy Homes and Lead Hazard Control
Office of Housing Counseling
Office of Public and Indian Housing

128

Sourcebook of United States Executive Agencies

Agency

Bureau

Department of Justice
Bureau of Alcohol, Tobacco, Firearms and Explosives
Bureau of Prisons
Civil Rights Division
Community Relations Service
Drug Enforcement Administration
Executive Office for Immigration Review
Executive Office for United States Attorneys
Executive Office for United States Trustees
Federal Bureau of Investigation
Foreign Claims Settlement Commission
Office of Justice Programs
Office on Violence Against Women
United States Marshals Service
United States Parole Commission
Department of Labor
Bureau of International Labor Affairs
Bureau of Labor Statistics
Employee Benefits Security Administration
Employment and Training Administration
Mine Safety and Health Administration
Occupational Safety and Health Administration
Office of Disability Employment Policy
Office of Federal Contract Compliance Programs
Office of Labor-Management Standards
Office of Workers’ Compensation Programs
Pension Benefit Guaranty Corporation
Veterans’ Employment and Training Service
Wage and Hour Division
Women’s Bureau
Department of State
United States Agency for International Development
Department of the Interior
Bureau of Indian Affairs
Bureau of Land Management
Bureau of Ocean Energy Management
Bureau of Reclamation
Bureau of Safety and Environmental Enforcement
National Indian Gaming Commission
National Park Service
Office of Natural Resources Revenue
Office of Surface Mining Reclamation and Enforcement
United States Fish and Wildlife Service
United States Geological Survey

List of Agencies and Subunits—By Agency Name

129

Agency

Bureau

Department of the Treasury
Alcohol and Tobacco Tax and Trade Bureau
Bureau of Engraving and Printing
Bureau of the Fiscal Service
Federal Insurance Office
Financial Crimes Enforcement Network
Financial Stability Oversight Council
Internal Revenue Service
Internal Revenue Service Oversight Board
Office of Foreign Assets Control
Office of the Comptroller of the Currency
United States Mint
Department of Transportation
Federal Aviation Administration
Federal Highway Administration
Federal Motor Carrier Safety Administration
Federal Railroad Administration
Federal Transit Administration
Maritime Administration
National Highway Traffic Safety Administration
Pipeline and Hazardous Materials Safety Administration
Saint Lawrence Seaway Development Corporation
Department of Veterans Affairs
Board of Veterans Appeals
National Cemetery Administration
Veterans Benefits Administration
Veterans Health Administration
Election Assistance Commission
Environmental Protection Agency
Equal Employment Opportunity Commission
Executive Office of the President
Council of Economic Advisers
Council on Environmental Quality
Office of Management and Budget
Office of National Drug Control Policy
Office of Science and Technology Policy
Office of the United States Trade Representative
Export-Import Bank of the United States
Farm Credit Administration
Farm Credit System Insurance Corporation
Federal Agricultural Mortgage Corporation
Federal Communications Commission
Federal Deposit Insurance Corporation
Federal Election Commission

130

Sourcebook of United States Executive Agencies

Agency

Bureau

Federal Hospital Insurance Trust Fund
Federal Housing Finance Agency
Federal Labor Relations Authority
Federal Maritime Commission
Federal Mediation and Conciliation Service
Federal Mine Safety and Health Review Commission
Federal Retirement Thrift Investment Board
Federal Supplementary Medical Insurance Trust Fund
Federal Trade Commission
General Services Administration
Office of Acquisition Policy
Harry S. Truman Scholarship Foundation
Institute of Museum and Library Services
Inter-American Foundation
James Madison Memorial Fellowship Foundation
Legal Services Corporation
Marine Mammal Commission
Merit Systems Protection Board
Metropolitan Washington Airports Authority
Millennium Challenge Corporation
Morris K. Udall and Stewart L. Udall Foundation
National Aeronautics and Space Administration
National Archives and Records Administration
National Association of Registered Agents and Brokers
National Consumer Cooperative Bank
National Credit Union Administration
National Endowment for the Arts
National Endowment for the Humanities
National Institute of Building Sciences
National Labor Relations Board
National Mediation Board
National Transportation Safety Board
Northern Great Plains Regional Authority
Nuclear Regulatory Commission
Occupational Safety and Health Review Commission
Office of Government Ethics
Office of Personnel Management

List of Agencies and Subunits—By Agency Name

131

Agency

Bureau

Office of Special Counsel
Office of the Director of National Intelligence
Overseas Private Investment Corporation
Peace Corps
Postal Regulatory Commission
Privacy and Civil Liberties Oversight Board
Puerto Rico Financial Oversight and Management Board
Railroad Retirement Board
Securities and Exchange Commission
Securities Investor Protection Corporation
Small Business Administration
Social Security Administration
Social Security Advisory Board
State Justice Institute
Surface Transportation Board
Tennessee Valley Authority
Trade and Development Agency
United States African Development Foundation
United States Institute of Peace
United States International Trade Commission
United States Postal Service

132

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Appendix A-2

List of Agencies and
Subunits—By Abbreviation

Abbreviation

Agency Name

ACF

Administration for Children and Families (HHS)

ACL

Administration for Community Living (HHS)

ACUS

Administrative Conference of the United States

AHRQ

Agency for Healthcare Research and Quality (HHS)

AMS

Agricultural Marketing Service (USDA)

AMTRAK

AMTRAK

AOA

Administration on Aging

ARC

Appalachian Regional Commission

ARMY

Army (DOD)

ARS

Agricultural Research Service (USDA)

ASH

Office of the Assistant Secretary for Health (HHS)

ATF

Bureau of Alcohol, Tobacco, Firearms and Explosives (DOJ)

ATSDR

Agency for Toxic Substances and Disease Registry (HHS)

ATTTB

Alcohol and Tobacco Tax and Trade Bureau (TRS)

BBG

Broadcasting Board of Governors

BEA

Bureau of Economic Analysis (DOC)

BEP

Bureau of Engraving and Printing (TRS)

List of Agencies and Subunits—By Abbreviation

133

Abbreviation

Agency Name

BFS

Bureau of the Fiscal Service (TRS)

BGSEEF

Barry Goldwater Scholarship and Excellence in Education Foundation

BIA

Bureau of Indian Affairs (INT)

BILA

Bureau of International Labor Affairs (DOL)

BIS

Bureau of Industry and Security (DOC)

BLM

Bureau of Land Management (INT)

BLS

Bureau of Labor Statistics (DOL)

BOEM

Bureau of Ocean Energy Management (INT)

BOP

Bureau of Prisons (DOJ)

BOR

Bureau of Reclamation (INT)

BSEE

Bureau of Safety and Environmental Enforcement (INT)

BVA

Board of Veterans Appeals (DVA)

CBP

United States Customs and Border Protection (DHS)

CCC

Commodity Credit Corporation (USDA)

CDC

Centers for Disease Control and Prevention (HHS)

CEA

Council of Economic Advisers (EOP)

CEN

U.S. Census Bureau (COM)

CEQ

Council on Environmental Quality (EOP)

CFBCI

Center for Faith-Based and Community Initiatives (HUD)

CFPB

Consumer Financial Protection Bureau (FED)

CFTC

Commodity Futures Trading Commission

CIA

Central Intelligence Agency

CIS

United States Citizenship and Immigration Services (DHS)

CIVR

Civil Rights Division (DOJ)

CMS

Centers for Medicare and Medicaid Services (HHS)

CNCS

Corporation for National and Community Service

CPB

Corporation for Public Broadcasting

CPSC

Consumer Product Safety Commission

CSHIB

Chemical Safety and Hazard Investigation Board

DARPA

Defense Advanced Research Projects Agency (DOD)

DARS

Defense Acquisition Regulations System (DOD)

DCA

Defense Commissary Agency (DOD)

DCAA

Defense Contract Audit Agency (DOD)

DCMA

Defense Contract Management Agency (DOD)

DEA

Drug Enforcement Administration (DOJ)

DFAS

Defense Finance and Accounting Service (DOD)

DHA

Defense Health Agency (DOD)

134

Sourcebook of United States Executive Agencies

Abbreviation

Agency Name

DHS

Department of Homeland Security

DIA

Defense Intelligence Agency (DOD)

DISA

Defense Information Systems Agency (DOD)

DLA

Defense Logistics Agency (DOD)

DLSA

Defense Legal Services Agency (DOD)

DMA

Defense Media Activity (DOD)

DNDO

Domestic Nuclear Detection Office (DHS)

DNFSB

Defense Nuclear Facilities Safety Board

DOC

Department of Commerce

DOD

Department of Defense

DODATL

Under Secretary for Acquisition, Technology, and Logistics (DOD)

DODEA

DOD Education Activity (DOD)

DODPR

Under Secretary for Personnel and Readiness (DOD)

DOE

Department of Energy

DOED

Department of Education

DOJ

Department of Justice

DOL

Department of Labor

DOT

Department of Transportation

DPOW

Defense POW/MIA Accounting Agency (DOD)

DRA

Delta Regional Authority

DSCA

Defense Security Cooperation Agency (DOD)

DSS

Defense Security Service (DOD)

DTIC

Defense Technical Information Center (DOD)

DTRA

Defense Threat Reduction Agency (DOD)

DTSA

Defense Technology Security Administration (DOD)

DVA

Department of Veterans Affairs

EAC

Election Assistance Commission

EBSA

Employee Benefits Security Administration (DOL)

EDA

Economic Development Administration (DOC)

EEOC

Equal Employment Opportunity Commission

EOIR

Executive Office for Immigration Review (DOJ)

EOUSA

Executive Office for United States Attorneys (DOJ)

EOUST

Executive Office for United States Trustees (DOJ)

EPA

Environmental Protection Agency

ERS

Economic Research Service (USDA)

ESA

Economics and Statistics Administration (DOC)

ETA

Employment and Training Administration (DOL)

List of Agencies and Subunits—By Abbreviation

135

Abbreviation

Agency Name

EXIM

Export-Import Bank of the United States

FAA

Federal Aviation Administration (DOT)

FAMC

Federal Agricultural Mortgage Corporation

FAS

Foreign Agricultural Service (USDA)

FBI

Federal Bureau of Investigation (DOJ)

FCA

Farm Credit Administration

FCC

Federal Communications Commission

FCIC

Federal Crop Insurance Corporation (USDA)

FCSC

Foreign Claims Settlement Commission (DOJ)

FCSIC

Farm Credit System Insurance Corporation

FDA

Food and Drug Administration (HHS)

FDIC

Federal Deposit Insurance Corporation

FEC

Federal Election Commission

FED

Board of Governors of the Federal Reserve System

FEMA

Federal Emergency Management Agency (DHS)

FERC

Federal Energy Regulatory Commission (DOE)

FHA

Federal Housing Administration (HUD)

FHFA

Federal Housing Finance Agency

FHITF

Federal Hospital Insurance Trust Fund

FHWA

Federal Highway Administration (DOT)

FINCEN

Financial Crimes Enforcement Network (TRS)

FIO

Federal Insurance Office (TRS)

FLETC

Federal Law Enforcement Training Center (DHS)

FLRA

Federal Labor Relations Authority

FMC

Federal Maritime Commission

FMCS

Federal Mediation and Conciliation Service

FMCSA

Federal Motor Carrier Safety Administration (DOT)

FMSHRC

Federal Mine Safety and Health Review Commission

FNS

Food and Nutrition Service (USDA)

FODSITF

Board of Trustees for the Federal Old-Age and Survivors Insurance Trust Fund and
the Federal Disability Insurance Trust Fund

FRA

Federal Railroad Administration (DOT)

FRTIB

Federal Retirement Thrift Investment Board

FSA

Farm Service Agency (USDA)

FSIS

Food Safety and Inspection Service (USDA)

FSMITF

Federal Supplementary Medical Insurance Trust Fund

FSOC

Financial Stability Oversight Council (TRS)

FTA

Federal Transit Administration (DOT)

136

Sourcebook of United States Executive Agencies

Abbreviation

Agency Name

FTC

Federal Trade Commission

GIPSA

Grain Inspection, Packers, and Stockyards Administration (USDA)

GNMA

Government National Mortgage Association (HUD)

GSA

General Services Administration

HHS

Department of Health and Human Services

HRSA

Health Resources and Services Administration (HHS)

HSTSF

Harry S. Truman Scholarship Foundation

HUD

Department of Housing and Urban Development

IAF

Inter-American Foundation

ICE

United States Immigration and Customs Enforcement (DHS)

IHS

Indian Health Service (HHS)

IMLS

Institute of Museum and Library Services

INT

Department of the Interior

IRS

Internal Revenue Service (TRS)

IRSOB

Internal Revenue Service Oversight Board (TRS)

ITA

International Trade Administration (DOC)

JCRS

Community Relations Service (DOJ)

JITDA

Joint Improvised-Threat Defeat Agency (DOD)

JMMFF

James Madison Memorial Fellowship Foundation

LPO

Loan Programs Office (DOE)

LSC

Legal Services Corporation

MA

Maritime Administration (DOT)

MBDA

Minority Business Development Agency (DOC)

MCC

Millennium Challenge Corporation

MDA

Missile Defense Agency (DOD)

MINT

United States Mint (TRS)

MMC

Marine Mammal Commission

MSHA

Mine Safety and Health Administration (DOL)

MSPB

Merit Systems Protection Board

MUSUF

Morris K. Udall and Stewart L. Udall Foundation

MWAA

Metropolitan Washington Airports Authority

NARA

National Archives and Records Administration

NARAB

National Association of Registered Agents and Brokers

NASA

National Aeronautics and Space Administration

NASS

National Agricultural Statistics Service (USDA)

NAVY

Navy (DOD)

NCA

National Cemetery Administration (DVA)

List of Agencies and Subunits—By Abbreviation

137

Abbreviation

Agency Name

NCCB

National Consumer Cooperative Bank

NCUA

National Credit Union Administration

NEA

National Endowment for the Arts

NEH

National Endowment for the Humanities

NGIA

National Geospatial-Intelligence Agency (DOD)

NGPRA

Northern Great Plains Regional Authority

NHTSA

National Highway Traffic Safety Administration (DOT)

NIBS

National Institute of Building Sciences

NIFA

National Institute of Food and Agriculture (USDA)

NIGC

National Indian Gaming Commission (INT)

NIH

National Institutes of Health (HHS)

NIST

National Institute of Standards and Technology (DOC)

NLRB

National Labor Relations Board

NMB

National Mediation Board

NNSA

National Nuclear Security Administration (DOE)

NOAA

National Oceanic and Atmospheric Administration (DOC)

NPS

National Park Service (INT)

NRC

Nuclear Regulatory Commission

NRCS

Natural Resources Conservation Service (USDA)

NRO

National Reconnaissance Office (DOD)

NSA

National Security Agency/Central Security Service (DOD)

NTIA

National Telecommunications and Information Administration (DOC)

NTIS

National Technical Information Service (DOC)

NTSB

National Transportation Safety Board

OAM

Office of Acquisition Management (DOE)

OAP

Office of Acquisition Policy (GSA)

OCC

Office of the Comptroller of the Currency (TRS)

OCPD

Office of Community Planning and Development (HUD)

ODEP

Office of Disability Employment Policy (DOL)

ODNCP

Office of National Drug Control Policy (EOP)

ODNI

Office of the Director of National Intelligence

OEA

Office of Economic Adjustment (DOD)

OEDE

Office of Electricity Delivery and Energy Reliability (DOE)

OEERE

Office of Energy Efficiency and Renewable Energy (DOE)

OELA

Office of English Language Acquisition (DOED)

OESA

Office of Elementary and Secondary Education (DOED)

OFAC

Office of Foreign Assets Control (TRS)

138

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Abbreviation

Agency Name

OFCCP

Office of Federal Contract Compliance Programs (DOL)

OFHEO

Office of Fair Housing and Equal Opportunity (HUD)

OFPM

Office of Field Policy and Management (HUD)

OFSA

Federal Student Aid (DOED)

OGE

Office of Government Ethics

OHC

Office of Housing Counseling (HUD)

OHHLHC

Office of Healthy Homes and Lead Hazard Control (HUD)

OII

Office of Innovation and Improvement (DOED)

OJP

Office of Justice Programs (DOJ)

OLMS

Office of Labor-Management Standards (DOL)

OMB

Office of Management and Budget (EOP)

ONCHIT

Office of the National Coordinator for Health Information Technology (HHS)

ONRR

Office of Natural Resources Revenue (INT)

ONSE

Office of Nuclear Safety Enforcement (DOE)

OPE

Office of Postsecondary Education (DOED)

OPIC

Overseas Private Investment Corporation

OPIH

Office of Public and Indian Housing (HUD)

OPM

Office of Personnel Management

OSC

Office of Special Counsel

OSHA

Occupational Safety and Health Administration (DOL)

OSHRC

Occupational Safety and Health Review Commission

OSMR

Office of Surface Mining Reclamation and Enforcement (INT)

OSTP

Office of Science and Technology Policy (EOP)

OVAW

Office on Violence Against Women (DOJ)

OWCP

Office of Workers’ Compensation Programs (DOL)

PBGC

Pension Benefit Guaranty Corporation (DOL)

PC

Peace Corps

PCLOB

Privacy and Civil Liberties Oversight Board

PFPA

Pentagon Force Protection Agency (DOD)

PHMSA

Pipeline and Hazardous Materials Safety Administration (DOT)

PRC

Postal Regulatory Commission

PRFOMB

Puerto Rico Financial Oversight and Management Board

PSER

Office of Special Education and Rehabilitative Services (DOED)

RBCS

Rural Business-Cooperative Service (USDA)

RHS

Rural Housing Service (USDA)

RMA

Risk Management Agency (USDA)

RRB

Railroad Retirement Board

List of Agencies and Subunits—By Abbreviation

139

Abbreviation

Agency Name

RUS

Rural Utilities Service (USDA)

SAMHSA

Substance Abuse and Mental Heath Services Administration (HHS)

SBA

Small Business Administration

SEC

Securities and Exchange Commission

SIPC

Securities Investor Protection Corporation

SJI

State Justice Institute

SSA

Social Security Administration

SSAB

Social Security Advisory Board

STAT

Department of State

STB

Surface Transportation Board

STLSDC

Saint Lawrence Seaway Development Corporation (DOT)

TDA

Trade and Development Agency

TRMC

DOD Test Resource Management Center (DOD)

TRS

Department of the Treasury

TSA

Transportation Security Administration (DHS)

TVA

Tennessee Valley Authority

USADF

United States African Development Foundation

USAF

Air Force (DOD)

USAID

United States Agency for International Development (STAT)

USCG

United States Coast Guard (DHS)

USDA

Department of Agriculture

USFS

Forest Service (USDA)

USFWS

United States Fish and Wildlife Service (INT)

USGS

United States Geological Survey (INT)

USIP

United States Institute of Peace

USITC

United States International Trade Commission

USMS

United States Marshals Service (DOJ)

USPC

United States Parole Commission (DOJ)

USPS

United States Postal Service

USPTO

United States Patent and Trademark Office (DOC)

USSS

United States Secret Service (DHS)

USTR

Office of the United States Trade Representative (EOP)

VBA

Veterans Benefits Administration (DVA)

VETS

Veterans’ Employment and Training Service (DOL)

VHA

Veterans Health Administration (DVA)

WB

Women’s Bureau (DOL)

WHD

Wage and Hour Division (DOL)

WHS

Washington Headquarters Services (DOD)

140

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Appendix B

Senate Committees Confirming
Agency and Subunit Nominees450

Agency

Number of
Committees

Committees

ACF

3

Finance; Health, Education, Labor, and Pensions; Indian Affairs

ACL

1

Health, Education, Labor, and Pensions

ACUS

1

Judiciary

AHRQ

0

AMS

0

AMTRAK

1

Commerce, Science, and Transportation

AOA

1

Health, Education, Labor, and Pensions

APHIS

0

ARC

1

Environment and Public Works

ARMY

2

Armed Services; Environment and Public Works

450. This table considers Senate committees that confirm presidential nominees to specific positions
within an agency or subunit. It does not consider PAS appointees who are appointed to one position
in government but serve in an additional position. For example, the Farm Credit System Insurance
Corporation is managed by a Board of Directors that consists solely of the members of the Farm Credit
Administation Board. 12 U.S.C. § 2277a-2(a) (2017). While the Senate Committee on Agriculture,
Nutrition, and Forestry confirms the FCA’s Board, that committee is not listed as a confirming committee for the Farm Credit System Insurance Corporation. Additionally, this table does not account
for the confirmation of inspectors general or other individuals appointed through government-wide
statutory mandates.
Senate Committees Confirming Agency and Subunit Nominees

141

Agency

Number of
Committees

Committees

ARS

0

ASH

1

Health, Education, Labor, and Pensions

ATF

1

Judiciary

ATSDR

0

ATTTB

0

BBG

1

BEA

0

BEP

0

Foreign Relations

BFS

0

BGSEEF

1

Health, Education, Labor, and Pensions

BIA

1

Indian Affairs

BILA

0

BIS

1

Banking, Housing, and Urban Affairs

BLM

1

Energy and Natural Resources

BLS

1

Health, Education, Labor, and Pensions

BOEM

0

BOP

0

BOR

1

Energy and Natural Resources

BSEE

0

BVA

1

Veterans Affairs

CBP

1

Finance

CCC

0

CDC

0

CEA

1

Banking, Housing, and Urban Affairs

CEN

1

Homeland Security and Governmental Affairs

CEQ

1

Environment and Public Works

CFBCI

0

CFPB

1

Banking, Housing, and Urban Affairs

CFTC

1

Agriculture, Nutrition, and Forestry

CIA

1

Intelligence

CIS

1

Judiciary

CIVR

1

Judiciary

CMS

1

Finance

CNCS

1

Health, Education, Labor, and Pensions

CPB

1

Commerce, Science, and Transportation

CPSC

1

Commerce, Science, and Transportation

CSHIB

1

Environment and Public Works

142

Sourcebook of United States Executive Agencies

Agency

Number of
Committees

DARPA

0

DARS

0

DCA

0

DCAA

0

DCMA

0

DEA

1

DFAS

0

DHA

0

DHS

5

DIA

0

DISA

0

DLA

0

DLSA

0

DMA

0

Committees

Judiciary

Commerce, Science, and Transportation; Finance; Homeland Security
and Governmental Affairs; Intelligence; Judiciary

DNDO

0

DNFSB

1

Armed Services

DOC

6

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

DOD

3

Armed Services; Environment and Public Works; Intelligence

DODATL

1

Armed Services

DODEA

0

DODPR

1

Armed Services

DOE

2

Armed Services; Energy and Natural Resources

DOED

1

Health, Education, Labor, and Pensions

DOJ

2

Intelligence; Judiciary

DOL

3

Finance; Health, Education, Labor, and Pensions; Veterans Affairs

DOT

3

Banking, Housing, and Urban Affairs; Commerce, Science, and
Transportation; Environment and Public Works

DPOW

0

DRA

1

DSCA

0

DSS

0

DTIC

0

DTRA

0

DTSA

0

DVA

1

Environment and Public Works

Veterans Affairs

Senate Committees Confirming Agency and Subunit Nominees

143

Agency

Number of
Committees

EAC

1

Rules and Administration

EBSA

1

Health, Education, Labor, and Pensions

EDA

1

Environment and Public Works

EEOC

1

Health, Education, Labor, and Pensions

EOIR

0

EOUSA

1

EOUST

0

EPA

1

Committees

Judiciary
Environment and Public Works

ERS

0

ESA

1

Commerce, Science, and Transportation

ETA

1

Health, Education, Labor, and Pensions

EXIM

1

Banking, Housing, and Urban Affairs

FAA

1

Commerce, Science, and Transportation

FAMC

1

Agriculture, Nutrition, and Forestry

FAS

0

FBI

1

Judiciary

FCA

1

Agriculture, Nutrition, and Forestry

FCC

1

Commerce, Science, and Transportation

FCIC

0

FCSC

1

FCSIC

0

FDA

1

Health, Education, Labor, and Pensions

FDIC

1

Banking, Housing, and Urban Affairs

FEC

1

Rules and Administration

FED

1

Banking, Housing, and Urban Affairs

FEMA

1

Homeland Security and Governmental Affairs

FERC

1

Energy and Natural Resources

FHA

1

Banking, Housing, and Urban Affairs

FHFA

1

Banking, Housing, and Urban Affairs

FHITF

1

Finance

FHWA

1

Environment and Public Works

FINCEN

0

FIO

0

FLETC

0

FLRA

1

Homeland Security and Governmental Affairs

FMC

1

Commerce, Science, and Transportation

FMCS

1

Health, Education, Labor, and Pensions

144

Judiciary

Sourcebook of United States Executive Agencies

Agency

Number of
Committees

FMCSA

1

Commerce, Science, and Transportation

FMSHRC

1

Health, Education, Labor, and Pensions

Committees

FNS

0

FODSITF

1

Finance

FRA

1

Commerce, Science, and Transportation

FRTIB

1

Homeland Security and Governmental Affairs

FSA

0

FSIS

0

FSMITF

1

Finance

FSOC

1

Banking, Housing, and Urban Affairs

FTA

1

Banking, Housing, and Urban Affairs
Commerce, Science, and Transportation

FTC

1

GIPSA

0

GNMA

1

Banking, Housing, and Urban Affairs

GSA

1

Homeland Security and Governmental Affairs

HHS

3

Finance; Health, Education, Labor, and Pensions; Indian Affairs

HRSA

0

HSTSF

1

Health, Education, Labor, and Pensions

HUD

1

Banking, Housing, and Urban Affairs

IAF

1

Foreign Relations

ICE

2

Homeland Security and Governmental Affairs; Judiciary

IHS

1

Indian Affairs

IMLS

1

Health, Education, Labor, and Pensions

INT

2

Energy and Natural Resources; Environment and Public Works

IRS

1

Finance

IRSOB

1

Finance

ITA

1

Finance

JCRS

1

Judiciary

JITDA

0

JMMFF

1

Health, Education, Labor, and Pensions

LPO

0

LSC

1

Health, Education, Labor, and Pensions

MA

1

Commerce, Science, and Transportation

MBDA

0

MCC

1

MDA

0

MINT

1

Foreign Relations
Banking, Housing, and Urban Affairs

Senate Committees Confirming Agency and Subunit Nominees

145

Agency

Number of
Committees

MMC

1

Commerce, Science, and Transportation

MSHA

1

Health, Education, Labor, and Pensions

MSPB

1

Homeland Security and Governmental Affairs

MUSUF

1

Environment and Public Works

MWAA

1

Commerce, Science, and Transportation

NARA

1

Homeland Security and Governmental Affairs

NARAB

1

Banking, Housing, and Urban Affairs

NASA

1

Commerce, Science, and Transportation

Committees

NASS

0

NAVY

1

Armed Services

NCA

1

Veterans Affairs

NCCB

1

Banking, Housing, and Urban Affairs

NCUA

1

Banking, Housing, and Urban Affairs

NEA

1

Health, Education, Labor, and Pensions

NEH

1

Health, Education, Labor, and Pensions

NGIA

0

NGPRA
NHTSA

1

Commerce, Science, and Transportation

NIBS

1

Banking, Housing, and Urban Affairs

NIFA

0

NIGC

1

NIH

1

Health, Education, Labor, and Pensions

NIST

1

Commerce, Science, and Transportation

NLRB

1

Health, Education, Labor, and Pensions

NMB

1

Health, Education, Labor, and Pensions

NNSA

1

Armed Services

NOAA

1

Commerce, Science, and Transportation

NPS

1

Energy and Natural Resources

NRC

1

Environment and Public Works

NRCS

0

NRO

2

Armed Services; Intelligence

NSA

2

Armed Services; Intelligence

NTIA

1

Commerce, Science, and Transportation

NTIS

0

NTSB

1

OAM

0

OAP

0

146

Indian Affairs

Commerce, Science, and Transportation

Sourcebook of United States Executive Agencies

Agency

Number of
Committees

OCC

1

Banking, Housing, and Urban Affairs

OCPD

1

Banking, Housing, and Urban Affairs

ODEP

1

Health, Education, Labor, and Pensions

ODNCP

1

Judiciary

ODNI

2

Homeland Security and Governmental Affairs; Intelligence

Committees

OEA

0

OEDE

1

Energy and Natural Resources

OEERE

1

Energy and Natural Resources

OELA

0

OESA

1

OFAC

0

OFCCP

0

OFHEO

1

OFPM

0

OFSA

0

OGE

1

OHC

0

OHHLHC

0

OII

0

OJP

1

OLMS

0

OMB

2

ONCHIT

0

ONRR

0

Health, Education, Labor, and Pensions

Banking, Housing, and Urban Affairs

Homeland Security and Governmental Affairs

Judiciary
Budget; Homeland Security and Governmental Affairs

ONSE

0

OPE

1

Health, Education, Labor, and Pensions

OPIC

1

Foreign Relations

OPIH

1

Banking, Housing, and Urban Affairs

OPM

1

Homeland Security and Governmental Affairs

OSC

1

Homeland Security and Governmental Affairs

OSHA

1

Health, Education, Labor, and Pensions

OSHRC

1

Health, Education, Labor, and Pensions

OSMR

1

Energy and Natural Resources

OSTP

1

Commerce, Science, and Transportation

OVAW

1

Judiciary

OWCP

0

PBGC

2

Finance; Health, Education, Labor, and Pensions

Senate Committees Confirming Agency and Subunit Nominees

147

Agency

Number of
Committees

Committees

PC

1

Foreign Relations

PCLOB

1

Judiciary

PFPA

0

PHMSA

1

Commerce, Science, and Transportation

PRC

1

Homeland Security and Governmental Affairs

PRFOMB

1

Energy and Natural Resources

PSER

1

Health, Education, Labor, and Pensions

RBCS

0

RHS

0

RMA

0

RRB

1

Health, Education, Labor, and Pensions

RUS

0

SAMHSA

1

Health, Education, Labor, and Pensions

SBA

1

Small Business and Entrepreneurship

SEC

1

Banking, Housing, and Urban Affairs

SIPC

1

Banking, Housing, and Urban Affairs

SJI

1

Judiciary

SSA

1

Finance

SSAB

1

Finance

STAT

2

Foreign Relations; Intelligence

STB

1

Commerce, Science, and Transportation

STLSDC

1

Commerce, Science, and Transportation

TDA

1

Foreign Relations

TRMC

0

TRS

3

Banking, Housing, and Urban Affairs; Finance; Intelligence

TSA

2

Commerce, Science, and Transportation; Homeland Security and
Governmental Affairs

TVA

1

Environment and Public Works

USADF

1

Foreign Relations

USAF

1

Armed Services

USAID

1

Foreign Relations

USCG

1

Commerce, Science, and Transportation

USDA

1

Agriculture, Nutrition, and Forestry

USFS

0

USFWS

1

Environment and Public Works

USGS

1

Energy and Natural Resources

USIP

1

Health, Education, Labor, and Pensions

148

Sourcebook of United States Executive Agencies

Agency

Number of
Committees

USITC

1

Finance

USMS

1

Judiciary

USPC

1

Judiciary

USPS

1

Homeland Security and Governmental Affairs

USPTO

1

Judiciary

Committees

USSS

0

USTR

1

Finance

VBA

1

Veterans Affairs

VETS

2

Health, Education, Labor, and Pensions; Veterans Affairs

VHA

1

Veterans Affairs

WB

0

WHD

1

WHS

0

Health, Education, Labor, and Pensions

Senate Committees Confirming Agency and Subunit Nominees

149

Appendix C

Agency Structure Codebook

T

his codebook describes the data collected for the second edition of Sourcebook
of United States Executive Agencies (Sourcebook), 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.

Data Collection
The data collection process for the second edition of the Sourcebook was similar to that
of the first. During the summer of 2017, the authors updated the data for the 250
agency and bureau451 statutes that had previously been analyzed in either the first ver-

451. Any provision involving a bureau must specifically recognize the bureau by name. Provisions that
involve a bureau’s policy jurisdiction but grant authority to an official higher in the agency hierarchy
are not included as part of the bureau’s structural features. For example, statutory provisions granting
the Secretary of Agriculture authority to do things relating to national forest land likely implicate the
U.S. Forest Service, but are not considered part of the Forest Service’s responsibilities unless the statute
specifically recognizes the Service by name.
150

Sourcebook of United States Executive Agencies

sion of the Sourcebook452 or in Professor Selin’s What Makes an Agency Independent?
dataset453 to account for statutory changes since the data were originally collected. For
the remaining 28 agency statutes that had not previously been analyzed, the authors
found the original public law that established the agency or bureau and the law’s
corresponding updated section in the United States Code. Next, the research team
read that section of the Code to extract information about agency structure. When
possible, all data were validated using a variety of different sources depending upon
the type of agency and characteristic.
The Sourcebook continues to rely primarily on the statutory language of authorizing statutes rather than administrative practice. This choice was made for the sake
of consistency between editions and also to capture the structural “deal” between
Congress and the President. While this allows for statutory comparisons across
agencies, it does place some limitations on the data. For example, the United States
Code references the United States Postal Service (USPS) in 32 different titles. While
452. Data collection proceeded in three phases. In the first phase, each researcher on the team was
responsible for 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. Unless otherwise
specified, all information referring to “statute” in the codebook comes from this updated section of the
U.S. Code. 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 61 statutory characteristics of agencies were tracked for the seven components of the EOP, the 15 executive departments, and 85 independent agencies. Researchers noted the
location of each agency (e.g., EOP, executive department, etc.), features of agency governance (e.g.,
commission, fixed terms, number of 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, each researcher’s 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 the 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 and characteristic. Where discrepancies emerged, statutes were reread and a judgment was made about what source was correct. If discrepancies existed, they were often the result of
the team using the provisions of the statutory law described above to code the structural features of the
agency. This report relies on the portions of the U.S. Code related to agency structure, but 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 clarify this uncertainty in regulation, practice, or agency bylaws. Finally, in some cases administrative common law adds content to what is not explicitly included
in statute. For example, the statute authorizing the Securities and Exchange Commission does not
include explicit for-cause protections for the removal of commissioners. Yet, federal courts recognize
the existence of for-cause protections in the agency despite no explicit mention in statute. See, e.g., SEC
v. Blinder, Robinson, and Co., 855 F.2d 677 (10th Cir. 1988).
453. Selin, supra note 2 (data available at http://faculty.missouri.edu/selinj/data.shtml).
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151

the Sourcebook references the USPS’s structure as laid out in Title 39, other titles
undoubtedly impose additional requirements and administrative procedures that
affect USPS governance. In addition, the reliance on authorizing statutes does not
explain how these agencies implement the law in practice nor does it elaborate upon
the policy implications of agency design decisions. For a few areas of interest, governmental publications supplement the information obtained from statute. Those
publications are noted in the codebook.
Variables
This section of the codebook includes a description of each variable and how each
variable is coded in the dataset.
Housekeeping Variables
Name:

Name of Agency.

Statute:

Sections of the U.S. Code that establish the 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 we relied on agency self-interpretation. Source:
Agency statute; Agency-issued statements about agency history (usually from the agency’s website).
EOP:	This variable is coded with a (1) if the agency is a component
of the EOP and (0) otherwise. Source: Agency statute.
Exec. Dept.:	This variable is coded with a (1) if the agency is an executive
department or a component of an executive department and
(0) otherwise. Source: Agency statute.
Bureau:	This variable is coded with a (1) if the agency is a component
of a larger department or agency and (0) otherwise. Source:
Agency statute.
Corporation:	This variable is coded with a (1) if the agency is a wholly
owned government corporation and (0) otherwise. Federally
chartered private corporations or nonprofit entities are coded
(0). Source: 31 U.S.C. § 9101(3) (2017).
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Sourcebook of United States Executive Agencies

CodeRef:	This variable is coded with a (1) if the agency is referenced
anywhere in the United States Code and (0) otherwise. Source:
United States Code.
StatMandate:	This variable is coded with a (1) if a federal statute mandates
the establishment of the agency and (0) otherwise. Examples
of statutory language mandating the establishment of an
agency include the statute authorizing the Food and Drug
Administration, which states “There is established in the Department of Health and Human Services the Food and Drug
Administration,”454 and the statute authorizing the National
Telecommunications and Information Administration, which
states “There shall be within the Department of Commerce
an administration to be known as the National Telecommunications and Information Administration.”455 Source: Agency
statute.
StatPermit:	This variable is coded with a (1) if a federal statute permits,
but does not mandate, the establishment of the agency and
(0) otherwise. An example of statutory language merely
permitting the establishment of an agency includes the statute
recognizing the Natural Resources Conservation Service,
which states that “The Secretary is authorized to establish and
maintain within the Department [of Agriculture] a Natural
Resources Conservation Service.”456 Source: Agency statute.
Leadership Structure and Agency Personnel
Multimember:	This variable is coded with a (1) if the agency is a multi-member commission, has a board of directors, or the like and (0)
otherwise. Source: Agency statute.
NumberMembers: 	If the agency is a multi-member commission or board, the
number of voting members on the commission or board of directors. (.) denotes an agency that is not a commission or does
not have a board. This includes multi-member bodies that do
or do not have fixed terms. Source: Agency statute.

454. 21 U.S.C. § 393(a) (2017).
455. 47 U.S.C. § 902(a)(1) (2017).
456. 7 U.S.C. § 6962(a) (2017).
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153

QuorumRules: 	(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 commission or board. An example of a statute defining
a quorum is the statute authorizing the Corporation for
National and Community Service, which states, “A majority
of the appointed members of the Board shall constitute a
quorum.”457 Source: Agency statute.
QuorumNumber: 	If QuorumRules is coded (1), the number of members or
commissioners the statute specifies constitute a quorum.
Source: Agency statute.
Appointees:
PAS: 	Number of positions in agency subject to presidential appointment with Senate confirmation. Source: S. Comm. on
Homeland Sec. & Gov’t Affairs, 114th Cong., Policy
and Supporting Positions (G.P.O. 2016).
NA: 	Number of Senior Executive Service general positions in agency filled by non-career appointment. Source: S. Comm. on
Homeland Sec. & Gov’t Affairs, 114th Cong., Policy
and Supporting Positions (G.P.O. 2016).
SchC: 	Number of positions in agency filled by Schedule C Excepted
Appointment. Source: S. Comm. on Homeland Sec. &
Gov’t Affairs, 114th Cong., Policy and Supporting
Positions (G.P.O. 2016).
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: S. Comm.
on Homeland Sec. & Gov’t Affairs, 114th Cong.,
Policy and Supporting Positions (G.P.O. 2016).

457. 42 U.S.C. § 12651b(b) (2017).
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Sourcebook of United States Executive Agencies

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: S. Comm. on Homeland Sec. &
Gov’t Affairs, 114th Cong., Policy and Supporting
Positions (G.P.O. 2016).
Agency-specific
Personnel:	For the purposes of the chapters of Title 5 relating to pay and
allowances, certain agencies’ employees are excluded from the
definition of “employee”458 and other agencies’ statutes permit
employment systems particular to that agency. Examples of
statutory language indicating separate employment systems
include “members, alternates, officers, and employees of the
Commission are not federal employees for any purpose”459 or
“rates of basic pay for all employees may be set and adjusted by
the agency without regard to” civil service provisions.460 Other
statutes allow for some agency employees to fall outside of
civil service provisions but place limitations on 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.”461 Agency-specific personnel system is coded (3) if 5 U.S.C. § 5102 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. § 5102
(2017); Agency statute.

458. 5 U.S.C. § 5102 (2017).
459. 40 U.S.C. § 14301(f) (2017) (Appalachian Regional Commission).
460. 7 U.S.C. § 2(a)(7)(B) (2017) (Commodity Futures Trading Commission).
461. 51 U.S.C. § 20113(b)(1) (2017) (National Aeronautics and Space Administration).
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155

Employees: 	The number of employees in the agency as of September 2016.
Source: Office of Personnel Management. Central Personnel
Data File, September 2016, http://www.fedscope.opm.gov/
employment.asp. For some agencies, the Office of Personnel
Management does not collect employment data. Sources
used to obtain employee data in those cases include Office
of Mgmt. & Budget, Exec. Office of the President,
Budget of the United States Government, Fiscal
Year 2018 (2017) (Appendix, 2016 Actual FTE).
	In cases where OPM does not collect employment data
researchers relied on other sources such as Congressional
Research Service reports, Presidential budget documents,
communications with agency officials, and secondary sources
for estimates of agency employment.
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 members/commissioners/agency head
be citizens of the United States. An example of such a statute is
the statute authorizing the Farm Credit Administration which
stipulates, “The Board members shall be citizens of the United
States and broadly representative of the public interest.”462
Source: Agency statute.
Civilian: 	(1) Statute mandates that board members or commissioners
or the agency head must be civilians; (0) Statute does not mandate members/commissioners/agency head be civilians. Source:
Agency statute.

462. 12 U.S.C. § 2242(a) (2017).
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Sourcebook of United States Executive Agencies

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
the President to consider geography “to the maximum extent
possible,” “as nearly as practicable,” or similar language is
coded as a (1). One example of a statute that places a geographic limitation is the statute authorizing the Board of Governors
of the Federal Reserve. It states, “In selecting members of the
Board, not more than one of whom shall be selected from any
one federal reserve district, the president shall have due regard
to a fair representation of the financial, agricultural, industrial,
and commercial interests and geographical divisions of the
country.”463 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).
One example of a demographic limitation is from the statute
authorizing the Corporation for National and Community
Service, which states that one of the 15 members must be “an
individual between the ages of 16 and 25.”464 Source: Agency
statute.

463. 12 U.S.C. § 241 (2017).
464. 42 U.S.C. § 12651a(a)(1)(A) (2017).
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157

Expertise: 	(1) Statute places an expertise or experience limitation on the
nomination/selection of members or commissioners or the
agency head; (0) Statute does not place an expertise or experience limitation on members/commissioners/agency head.
For example, the statute authorizing the Chemical Safety and
Hazard Investigation Board states, “Members of the Board
shall be appointed on the basis of technical qualification, professional standing, and demonstrated knowledge in the fields
of accident reconstruction, safety engineering, human factors,
toxicology, or air pollution regulation.”465 Source: Agency
statute.
LLExpertise:	(1) Statute places an expertise or experience limitation on the
nomination/selection of individuals below the level of agency
head; (0) Statute does not place any expertise or experience
limitation on individuals below the level of members/commissioners/agency head. For example, the Judge Advocate General
of the U.S. Army “shall be appointed from those officers who
at the time of appointment are members of the bar of a Federal
court or the highest court of a State, and who have had at
least eight years of experience in legal duties as commissioned
officers.”466 Expertise requirements for members of advisory
commissions are excluded from this variable. Source: Agency
statute.
Conflict of
Interest: 	(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. For example, the
statute authorizing the Commodity Futures Trading Commission states, “No Commissioner or employee of the Commission shall accept employment or compensation from any
person, exchange, or clearinghouse subject to regulation by
the Commission under this chapter during his term of office,
nor shall he participate, directly or indirectly, in any registered
entity operations or transactions of a character subject to
regulation by the Commission.”467 Source: Agency statute.

465. 42 U.S.C. § 7412(r)(6)(B) (2017).
466. 10 U.S.C. § 3037(b) (2017).
467. 7 U.S.C. § 2(a)(8) (2017).
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Sourcebook of United States Executive Agencies

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. Agencies where members of Congress are voting
members of an agency Board are also coded as (1). 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 that
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). 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 is specified for
each term. Source: Agency statute.
LL Fixed Terms:	(1) Statute specifies a fixed term for an employee of the agency
other than members, commissioners, or agency heads; (0)
Statute does not specify a fixed term for employees other than
members/commissioners/agency head. For example, the Chief
of Chaplains of the Air Force serves a term of three years and
is coded (1).468 Fixed terms for members of advisory commissions are excluded from this variable. Source: Agency statute
468. 10 U.S.C. § 8039(a)(2) (2017).
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159

Staggered
Terms:	(1) If the agency is a commission or has a board of directors
and the statute fixes the terms of the initial members of the
commission or board so that nominations in future years will
be staggered; (0) If the agency is a commission or has a board
of directors and the statute does not fix terms so that nominations will be staggered; (.) The agency is not a commission
or does not have a board of directors. An example of a statute
that staggers terms is the statute authorizing the Consumer
Product Safety Commission. It states, “The Commissioners
first appointed shall be appointed for terms ending three, four,
five, six, and seven years, respectively, after October 27, 1972,
the term of each to be designated by the President at the time
of nomination and each of their successors shall be appointed
for a term of seven years from the date of the expiration of
the term for which his predecessor was appointed.”469 Source:
Agency statute.
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.
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.

469. 15 U.S.C. § 2053(b)(1) (2017).
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Continuation
Replacement: 	(1) If Fixed Terms is coded (1) and statute provides that
members or commissioners 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.470 Some provisions for continuation provide that
a member may serve until a successor has been appointed and
qualified or until some other point such as the end of the next
congressional session. For example, the statute authorizing the
Consumer Product Safety Commission states, “A Commissioner may continue to serve after the expiration of term until
his successor has taken office, except that he may not so continue to serve more than one year after the date on which his term
would otherwise expire.”471 Source: Agency statute.
Acting Service
Rules: 	(2) Statute specifies that in the event of absence, disability, or
vacancy in 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.

470. The Department of the Treasury’s statute provides that when a term of office of any officer of the
Department of the Treasury ends, the officer may continue to serve until a successor is appointed and
qualified. 31 U.S.C. § 315 (2017). However, because the Secretary of the Treasury does not have a fixed
term, the Treasury Department is coded (.).
471. 15 U.S.C. § 2053(b)(2) (2017).
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161

Agency Head Selection and Retention
PAS Head:472 	(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;473 (0) Statute does not
specify that the President appoints the agency head with the
advice and consent of the Senate. Source: Agency statute.
President
Selects Chair: 	(1) Statute specifies that President designates the agency
head but does not provide for Senate advice and consent; (0)
Statute does not specify that President designates agency head
without Senate advice and consent. Source: Agency statute.
Sec/Com
Selects Head:	For bureaus within larger agencies, (1) Statute specifies that
the head of the larger organization designates the agency head;
(0) Statute does not specify that the head of the larger organization designates the agency head. For example, the Bureau
of Prisons is coded (1) because the statute provides that its
director shall be “appointed by and serving directly under the
Attorney General.”474 Source: Agency statute.
Elected Head: 	(1) Statute provides that the head of the agency is elected from
among members or commissioners of the agency; (0) Statute
does not provide for the election of the agency head.475 Source:
Agency statute.

472. Cochairmen selected by different means are coded as a (1) in two categories. For example, the Appalachian Regional Commission has two cochairmen, one appointed by the President and confirmed
by the Senate and one elected by the state members of the board. 40 U.S.C. § 14301(b) (2017). This
agency is coded as a (1) under PAS Head of Agency and as a (1) under Elected Head.
473. For example, the Managing Trustee of the Federal Hospital Insurance Trust Fund Board is the
Secretary of the Treasury. 42 U.S.C. § 1395i(b) (2017). This position is coded as a (0).
474. 18 U.S.C. § 4041 (2017).
475. In the following agencies, the agency statute uses a term other than “elect”: National Mediation
Board (“designate”), Tennessee Valley Authority (“select”), and U.S. Election Assistance Commission
(“select”).
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Outside Head: 	(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 Hospital
Insurance Trust Fund Board.476 The Board is therefore coded
(1). Source: Agency statute.
Head Removal: ( 2) Statute specifies that the head may only be removed for inefficiency, neglect of duty, or malfeasance in office; (1) Statute
specifies a term of office for the head of the agency; (0) Statute
does not specify a term of office for the head and does not state
the head may only be removed for cause, and does not state the
head serves at the pleasure of the President. For the purposes of
this variable only, the chair is considered the head of the agency
if the agency is a board or commission. 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.
ChairServe
President:	(1) Statute specifies that head of agency serves at the pleasure
of the President; (0) Statute does not specifically state that
head of agency serves at the pleasure of the President. Source:
Agency statute.

476. 42 U.S.C. § 1395i(b) (2017).
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Features Insulating Agency Policy
Centralized OMB Review:
No OMB
Budget
Review:477 	(2) The President must submit the agency’s budget requests to
Congress without revision, together with the President’s own
budget proposals; (1) The agency submits its budget directly
to Congress without OMB review; (0) The agency is not
able to bypass OMB budget review. Source: Agency statute;
Office of Mgmt. & Budget, Exec. Office of the President, OMB Circular A-11 (2017); 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), 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 (OIRA); (0) The agency is not exempted
from OIRA review. Source: Agency statute; Exec. Order No.
12,866, 58 Fed. Reg. 51,735 (1993); 44 U.S.C. § 3502 (2017).

477. The Federal Aviation Administration, which is part of the Department of Transportation, has
statutorily based budgetary bypass authority. However, because the entire DOT does not have bypass
authority, DOT is coded (0).
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No OMB
Communications
Review:478 	(2) The agency asserts “informal” legislative bypass authority
without any explicit authority, statutory or otherwise, even
though OMB Circular A-19 does 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 (2017); Office of Mgmt. & Budget, Exec. 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), 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.479 We 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.

478. The Federal Aviation Administration (part of the Department of Transportation) and the Office
of the Comptroller of the Currency (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).
479. E.g., United States v. Morgan, 222 U.S. 274 (1911); United States v. California, 332 U.S. 19 (1937).
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Independent
Funding:	(5) 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;480
(4) 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; (3) 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; (2) Statute authorizes the agency to charge and
collect reasonable administrative fees for products, services,
access to data, etc.; (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; (0) Statute
does not include provision authorizing the agency to collect
funds outside of congressional appropriations. For all classifications, any statutory provision that permits an outside actor
to credit money from one agency to another is not included as
a source of independent funding. Source: Agency statute.
No Approp:	(1) 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 agency481; (0)
Statute does not authorize agency to collect fees for the purpose of covering a substantial portion of the cost of operating
expenses. Source: Agency statute.

480. Even if the statute authorizes a specific subunit within an executive department to collect fees, that
executive department is not as a whole funded substantially by these fees and therefore does not fall
under (5). For example, while the Federal Energy Regulatory Commission shall 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 fiscal 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.
481. Also coded as (5) under Independent Funding.
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Congressional Oversight
Reporting
Requirements:482 	Number of statutorily mandated recurring agency reports
to Congress. Source: Clerk of the U.S. House of Representatives, 115th Cong., Reports to be Made to
Congress (H.R. Doc. No. 115-4) (2017).
Number
Committees: 483 	Number of committees specified by statute as overseeing the
agency in any way, including, inter alia, receiving reports, hearing testimony, or exercising a legislative veto. 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: 40 U.S.C. §
11101(2); 40 U.S.C. § 11315 (2017); 31 U.S.C. § 901 (2017).

482. The statutory provisions identified in this codebook exclusively contain references to reporting
requirements in the agencies’ authorizing statutes, while the count in the Excel spreadsheet includes all
statutorily mandated recurring agency reports as published by the Clerk of the U.S. House of Representatives. Neither the statutory provisions nor the count recognize reports that are required of most
or all agencies across the executive establishment (e.g., inspectors general’s reports, etc.).
483. House Committees of the 115th 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; Ways and Means; and the Select Committee on the Events Surrounding the 2012 Terrorist Attack in Benghazi. Senate Committees of the 115th Congress include: Aging;
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; Ethics; Finance; Foreign Relations; Health, Education, Labor, and Pensions;
Homeland Security and Governmental Affairs; Indian Affairs; Intelligence; Judiciary; Rules and
Administration; Small Business and Entrepreneurship; and Veterans Affairs. Joint Committees of the
115th Congress include: Joint Economic; Joint Library; Joint Printing; and Joint Taxation.
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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 Senate484; (2) The agency is a “designated federal entity”
as defined by the Inspector General Act of 1978 and OMB’s
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 General Act of 1978 and
OMB’s 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 “federal entity.” Source: 5 U.S.C. app. 3 §§ 8G, 12
(2017); Office of Mgmt. & Budget, Executive Office of the
President 79 Fed. Reg. 1896-1901 (Jan. 10, 2014).
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 executive
from either the competitive service or the Senior Executive
Service; (0) The Chief Financial Officers Act places no requirements on the agency. Source: 31 U.S.C. § 901(b) (2017).

484. Even though the Inspector General Act does not include them, two agencies are coded as (3)
because they have statutorily mandated PAS Inspectors General. See 50 U.S.C. § 3517(a) (2017)
(Central Intelligence Agency); 50 U.S.C. § 3033(c)(1) (2017) (the Office of the Director of National
Intelligence’s IG requirements). In addition, 3 agencies are coded as (2), despite not being recognized
as designated federal entities in the OMB List of Designated Federal Entities because they have Inspectors General appointed by the head of the agency. See 10 U.S.C. § 3020(a) (2017) (Army); 10 U.S.C. §
5020(a) (2017) (Navy); 10 U.S.C. § 8020(a) (2017) (Air Force).
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Sunshine: 	(1) The agency is subject to the Government in Sunshine Act
of 1976;485 (0) The agency is not subject to the Government
in 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”486 is resolved by following the rule of Symons v. Chrysler Corporation Loan Guarantee Board,487 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 Fund 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 and consent of the Senate is coded (0).488 Source:
Agency statute; 5 U.S.C. § 522b (2017).
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. Similarly, coordinating committees are not considered
advisory commissions. Source: Agency statute.

485. Despite the fact that they do not fall within the list of entities to which the Government in
Sunshine Act is applicable, two corporate entities are coded as (1) because their authorizing statutes
suggest the entity shall be subject to § 552b or that meetings shall be open to the public. See 42 U.S.C.
§ 2996c(g) (2017) (all meetings of the Legal Services Corporation shall be open and subject to the requirements of the Sunshine Act); 47 U.S.C. § 396(g)(4) (2017) (Corporation for Public Broadcasting
shall hold open meetings with reasonable notice to the public).
486. 5 U.S.C. § 552b(a)(1) (2017).
487. 670 F.2d 238, 243-44 (D.C. Cir. 1981).
488. Note that this coding is for the agency itself and does not consider entities within the agency.
For example, the National Council on the Humanities, 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).
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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 does not specify that advisory commissions may be established. For example, the Department of
Energy is coded (1) because its authorizing statute states: “The
Secretary 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.”489 Source: Agency statute.
Outside 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
(including the agency head in the case of a bureau), or may
come in the form of a legislative veto. 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.490 The mere requirement
to “consult with” or “consider views” of an outside body does
not constitute outside approval. (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.
Rulemaking: 	(1) Statute authorizes agency to promulgate rules and/or regulations; (0) Statute does not specifically authorize agency to
promulgate rules and/or regulations. Source: Agency statute.491
Significant Rule: 	(1) According to the Federal Register, agency has promulgated
a rule in the last 15 years that the Unified Agenda of Regulatory and Deregulatory Actions classified as significant under
Executive Order 12,866; (0) According to the Federal Register,
agency has not promulgated a significant rule in the last 15
years. Source: Federal Register, https://www.federalregister.gov.

489. 42 U.S.C. § 7234 (2017).
490. 7 U.S.C. § 16a(a) (2017).
491. The coding for this variable was verified by using the Federal Register’s website and checking that
the agency promulgated at least one rule in the last 15 years. Federal Register, Article Search, https://
www.federalregister.gov/articles/search.
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Adjudication: 	(1) Statute gives agency, or any subpart of the agency, 492 the
authority to conduct or hold hearings or adjudication, take
testimony, receive evidence, employ administrative law judges,
or other similar adjudicatory functions including the employment of administrative judges; (0) Statute does not specifically
authorize adjudication or the 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. Source:
Agency statute
Administrative
Law Judges:	(1) Agency employs Administrative Law Judges; (0) Agency
does not employ Administrative Law Judges. Source: Office
of Personnel Management’s list of federal Administrative
Law Judges by agency and level (as of March 2017), https://
www.opm.gov/services-for-agencies/administrative-law-judges/#url=ALJs-by-Agency.

492. 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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