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Independent federal agencies occupy a special constitutional position in the governmental structure. Their stock-in-trade is the expert, apolitical resolution of regulatory issues. They are supposedly “independent” of the political will of the executive branch. Because most are multi-member organizations, they are also perceived as accommodating diverse views and able to prevent extreme outcomes through the compromise inherent in the process of collegial decision-making. But such a view is not universally held. A well known examination of such agencies in the 1930s described them uncharitably as a “headless ‘fourth branch’ of government, a haphazard deposit of irresponsible agencies and uncoordinated powers.” Most modern independent agencies, in fact, are not simply impartial government referees. Nonetheless, as Justice Breyer has suggested, they possess “comparative freedom from ballot box control” and “enjoy an independence expressly designed to insulate them, to a degree, from the ‘exercise of political oversight . . .’” that affects cabinet or cabinet like executive agencies. So, precisely what is the place of independent agencies today, and what does their role in the governmental structure mean for public lawyers?



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