What is the difference between an independent executive agency and a regulatory agency?

Independent agencies of the United States federal government are those agencies that exist outside of the federal executive branch . More specifically, the term is used to describe agencies that, while constitutionally part of the executive branch, are independent of presidential control, usually because the president's power to dismiss the agency head or a member is limited.

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Independent regulatory agencies are federal agencies created by an act of Congress that are independent of the executive departments. Though they are considered part of the executive branch, these agencies are meant to impose and enforce regulations free of political influence. The Consumer Product Safety Commission, the Nuclear Regulatory Commission, the Federal Communications Commission and the Securities and Exchange Commission are examples of such agencies.

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Independent executive agencies of the U.S. federal government are those that, while technically part of the executive branch, are self-governed and not directly controlled by the President. Among other duties, these independent agencies and commissions are responsible for the vitally important federal rulemaking process. In general, independent agencies are tasked with administering laws and federal regulations that apply to specific areas such as the environment, social security, homeland security, education, and veteran affairs.

Responsibilities and the Chain of Command

Expected to be experts in the areas they manage, most independent agencies are headed by a presidentially-appointed board or commission, while a few, such as the EPA, are headed by a single presidentially-appointed administrator or director. Falling within the executive branch of government, independent agencies are overseen by Congress, but operate with more autonomy than federal agencies headed by Cabinet members such as the Departments of State or Treasury which must report directly to the president.

While independent agencies do not answer directly to the president, their department heads are appointed by the president, with the approval of the Senate. However, unlike the department heads of executive branch agencies, such as those making up the president’s Cabinet, who can be removed simply because of their political party affiliation, heads of independent executive agencies may be removed only in cases of poor performance or unethical activities. In addition, the organizational structure independent executive agencies allows them to create their own rules and performance standards, deal with conflicts, and discipline employees who violate agency regulations.  

Creation of Independent Executive Agencies

For the first 73 years of its history, the young American republic operated with only four government agencies: the Departments of War, State, Navy, and Treasury, and the Office of the Attorney General. As more territories gained statehood and the nation’s population grew, the people’s demand for more services and protections from the government grew as well.

Facing these new government responsibilities, Congress created the Department of the Interior in 1849, the Department of Justice in 1870, and the Post Office Department (now the U.S. Postal Service) in 1872. The end of the Civil War in 1865 ushered in a tremendous growth of business and industry in America.

Seeing a need to ensure fair and ethical competition and control fees, Congress began creating independent economic regulatory agencies or “commissions.” The first of these, the Interstate Commerce Commission (ICC), was created in 1887 to regulate the railroad (and later the trucking) industries to ensure fair rates and competition and to prevent rate discrimination. Farmers and merchants had complained to lawmakers that railroads were charging them exorbitant fees to carry their goods to market. 

Congress eventually abolished the ICC in 1995, dividing its powers and duties among new, more tightly defined commissions. Modern independent regulatory commissions patterned after the ICC include the Federal Trade Commission, the Federal Communications Commission, and the U.S. Securities and Exchange Commission.

Humphrey’s Executor v. United States

In the 1935 case of Humphrey’s Executor v. United States the U.S. Supreme Court identified the following characteristics of an independent federal agency:

“Such a body cannot in any proper sense be characterized as an arm or an eye of the executive. Its duties are performed without executive leave, and, in the contemplation of the statute, must be free from executive control. To the extent that it exercises any executive function—as distinguished from executive power in the constitutional sense—it does so in the discharge and effectuation of its quasi-legislative or quasi-judicial powers, or as an agency of the legislative or judicial departments of the Government.”

William E. Humphrey had been appointed to the Federal Trade Commission (FTC)—an independent agency—by President Herbert Hoover in 1931. In 1933, President Franklin Roosevelt asked for Humphrey’s resignation since he was a conservative and had jurisdiction over many of Roosevelt’s liberal New Deal policies. When Humphrey refused to resign, Roosevelt fired him because of his policy positions. However, the FTC Act only allowed a president to remove a commissioner only for “inefficiency, neglect of duty, or malfeasance in office. When Humphrey died shortly after his dismissal, his executor sued to recover Humphrey's lost salary. 

In a unanimous decision, the Supreme Court ruled that the FTC Act was constitutional and that Humphrey's dismissal on policy grounds was unjustified. In its decision, the Supreme Court thus upheld the constitutional basis for independent agencies.

Independent Executive Agencies Today

Today, independent executive regulatory agencies and commissions are responsible for creating the many federal regulations intended to enforce the laws passed by Congress. For example, the Federal Trade Commission creates regulations to implement and enforce a wide variety of consumer protection laws such as the Telemarketing and Consumer Fraud and Abuse Prevention Act, the Truth in Lending Act, and the Children's Online Privacy Protection Act.

Most independent regulatory agencies have the authority to conduct investigations, impose fines or other civil penalties, and otherwise, limit the activities of parties proven to be in violation of federal regulations. For example, the Federal Trade Commission often halts deceptive advertising practices and forces business to issue refunds to consumers. Their general independence from politically motivated interference or influence gives the regulatory agencies the flexibility to respond rapidly to complex cases of abusive activities.

What Sets Independent Executive Agencies Apart?

Independent agencies differ from the other executive branch departments and agencies mainly in their makeup, function, and the degree to which they are controlled by the president. Unlike most executive branch agencies which are overseen by a single secretary, administrator, or director appointed by the president, independent agencies are usually controlled by a commission or board made up of from five to seven people who share power equally.

While the commission or board members are appointed by the president with the approval of the Senate, they typically serve staggered terms, often lasting longer than a four-year presidential term. As a result, the same president will rarely get to appoint all of the commissioners of any given independent agency. In addition, federal statutes limit the president’s authority to remove commissioners to cases of incapacity, neglect of duty, malfeasance, or “other good cause.”

Commissioners of independent agencies cannot be removed based simply on their political party affiliation. In fact, most independent agencies are required by law to have a bipartisan membership of their commissions or boards, thus preventing the president from filling vacancies exclusively with members of their own political party. In contrast, the president has the power remove the individual secretaries, administrators, or directors of the regular executive agencies at will and without showing cause. Under Article 1, Section 6, Clause 2 of the Constitution, members of Congress cannot serve on the commissions or boards of independent agencies during their terms in office.

Agency Examples

A few examples of hundreds of independent executive federal agencies not already mentioned include:

• Central Intelligence Agency (CIA): The CIA provides intelligence regarding potential threats to national security to the president and senior U.S. policymakers.
• Consumer Product Safety Commission (CPSC): Protects the public from unreasonable risks of injury or death from a vast array of consumer products.
• Defense Nuclear Facilities Safety Board: Oversees the nuclear weapons complex operated by the U.S. Department of Energy.
• Federal Communications Commission (FCC): Regulates interstate and international communications by radio, television, wire, satellite and cable.
• Federal Election Commission (FEC): Administers and enforces the campaign finance laws in the United States.
• Federal Emergency Management Agency (FEMA): Administers the national flood insurance and disaster relief programs. Works with first responders to prepare for, protect against, respond to, recover from, and mitigate all forms of hazards.
• Federal Reserve Board of Governors: Functions as the central bank of the United States. The Federal Reserve System (the “FED”) oversees the nation’s monetary and credit policy and works ensure the safety and stability of the nation’s banking and financial system.

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