Commissions Are Mulvaney’s Error of Omission

If you make a cheese pizza, you have to meet standards set by the Food and Drug Administration. Add pepperoni and the same pizza is subject to different standards set by the U.S. Department of Agriculture. Mick Mulvaney, director of the Office of Management and Budget, had some fun with such anomalies when he unveiled the Trump administration’s plan to reorganize the government in June. His 132-page plan offers detailed proposals aimed at improving the “efficiency, effectiveness, and accountability of the executive branch.”

We leave the merits of the plan and its particulars to others but write to express our disappointment that the proposal misses the opportunity to promote an important and overdue reform: bringing more accountability to the so-called independent regulatory commissions.

These are multiheaded, bipartisan agencies such as the Federal Communications Commission, the Securities and Exchange Commission, and the Consumer Product Safety Commission. Like cabinet departments and agencies with a single administrator, IRCs issue regulations that have broad societal impacts. But because of their “independent” status, their rules aren’t based on the same rigorous analysis or subject to the same review as those promulgated by executive-branch agencies.

The Supreme Court has sanctioned their independence, starting with Humphrey’s Executor v. U.S. (1935), which upheld Congress’s power to restrict the president from removing the heads of the agencies other than “for good cause”—a limitation that some have said is the defining characteristic of an independent regulatory commission.

This raises the question of where these agencies fit in a constitutional scheme that confers powers only to the legislative, executive and judicial branches. In 1937 President Franklin D. Roosevelt’s Brownlow Committee warned of the dangers of a “headless fourth branch” of government and argued that “no administrative reorganization worthy of the name can leave hanging in the air more than a dozen powerful, irresponsible agencies free to determine policy and administer law.”

A decade later, President Harry S. Truman’s Commission on Organization of the Executive Branch of the Government, led by former President Herbert Hoover, recommended strengthening the president’s oversight and control over these IRCs, finding that “the line of responsibility [from independent agencies to the president] still exists in constitutional theory, but it has been worn away by administrative practices, by political pressures, and by detailed statutory provisions.”

Photo: Evan Vucci/Associated Press