Presidential Influence on Independent Agencies

• Published date: 01 May 1942
• Date: 01 May 1942
• DOI: http://doi.org/10.1177/000271624222100112
• Subject Matter: Articles

Presidential Influence on Independent Agencies
By KENNETH C. COLE
THERE are certain obvious difficul- four-year term, safe from presidential
ties in estimating the influence of
removal.2
2
one person upon other persons.
For
But Congress has not often, nor sys-
one thing, the relevant considerations
tematically, undertaken anything of this
are likely to be of a highly informal
kind with reference to Federal office-
nature, and for another, those who have
holders as a group. Indeed, we may
access to such informal sources are not
recall that the so-called merit system,
likely to be unbiased in their judgments.
inaugurated in 1883, has been devised
Some Presidents have, to be sure,
to enable the President to bring various
written quite frankly of their official
groups of civil servants within the pro-
problems after they left office. Cleve-
tecting provisions of the acts. It has
land, especially, did this,’ but unfor-
certainly not been aimed at the Chief
tunately, the reminiscences of Presidents
Executive.
who served as long ago as Cleveland are
POSITION OF INDEPENDENT AGENCIES
not of great usefulness today. The
presidency is in the process of radical
The independent boards and com-
change as a result of the much greater
missions, however, pose a different prob-
administrative burdens assumed by gov-
lem. Other contributors to this volume
ernment as a whole. We cannot profit-
will have described their institution, and
ably go back beyond the time of Wood-
it will suffice to point out here that all
row Wilson, and our most worth-while
of them involve the discharge of duties
conclusions must be based on history as
which Congress has felt to be either
recent as that of the New Deal.
closely akin to the duties of courts or
From the legal and constitutional
else closely akin to the duties of Con-
standpoint, the President’s influence
gress itself. In the case of the Federal
upon the personnel of boards and com-
Trade Commission, for example, the
missions is entitled to separate attention
duties of the commission are often de-
because the &dquo;independence&dquo; of such a
scribed as quasi-judicial because the
board or commission usually evidences
commission does, among other things,
a Congressional disposition to limit his
decide in particular cases whether cer-
influence. Of course, Congress has on
tain business practices constitute unfair
several particular occasions endeavored
competition or not. On the other hand,
to insulate the President from effective
the Interstate Commerce Commission
control over all executive personnel.
may be said to exercise quasi-legislative
Thus, to mention one conspicuous ex-
functions as well, because it really sub-
ample, the feud between Johnson and
stitutes for Congress in laying down
Congress motivated the Tenure of Office
rules defining reasonable rates and serv-
Acts which undertook to assure the in-
ices.
cumbents of various offices a uniform
2 The famous case of Myers v. U. S. 272
U. S. 52 (1926) involved the application of
1
The Independence of the Executive, Prince-
a later one of these acts to the tenure of a
ton Univ. Press, 1913. Woodrow Wilson, on
postmaster appointed by Woodrow Wilson.
the contrary, wrote with rare discrimination
Speaking for a court divided 5 to 4 on the
on the nature of the presidency before he held
question whether the President could be le-
that office.
Franklin Roosevelt has written
gally limited in his removal power, Chief
extensively while in office.
Justice Taft held that he could not.
72



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These functions are in addition to the
partisan program of government policy.
normal administrative functions of in-
As head of his party, the President has
vestigation and prosecution, and they
a very real responsibility for the suc-
are functions characteristically assigned
cessful administration of these acts, and
to agencies having the board type of
he will accordingly want to be in a posi-
organization. It is disconcertingly true,
tion to dictate the manner of their exe-
however, that Congress has not set up
cution.
such separate agencies whenever this
For instance, President Roosevelt’s
combination of functions has had to be
program for dealing with the depression
discharged. Both quasi-legislative and
called for a radical change in the treat-
quasi-judicial functions are exercised
ment of business practices. The Fed-
also by many agencies having a single
eral Trade Commission was the obvious
administrator at the head, and these
agency to carry this into effect, but if
administrators are usually members of
the President could not have got rid
the President’s Cabinet.
of incumbents on the commission prob-
From a functional standpoint, it is
ably unsympathetic...