SUBMERGED INDEPENDENT AGENCIES.

• Author: Feinstein, Brian D.

INTRODUCTION 947 I. EXECUTIVE BRANCH AGENCY DESIGN 957 A. Independent "Aencies" 957 B. Identifying Delegations 968 II. FINDINGS 972 A. Delegators and Dekgatees 972 B. Trends 978 1. Initial Delegations 978 2. Revocations 985 C. Midnight Subdelegations 988 D. Congressional-Executive Dynamics 992 III. IMPLICATIONS 996 A. Legality 997 1. Appointments 997 2. Removal 1003 3. Statutory Constraints 1008 B. Tradeoffs L009 C. Oversight 1014 CONCLUSION 1016 APPENDICES 1018 A. Delegator and Delegatee Characteristics 1018 B. Subdelegations by Presidential Administration 1020 C. Frequent Topics of Subdelegations 1021 INTRODUCTION

Debates about agency independence tend to focus on agency heads: the secretaries, administrators, commissioners, and board members that lead the federal bureaucracy. The central question is often whether individuals in those positions can be removed by the President at will or only for cause. In other words, can the President dismiss an agency's leader without explanation, or does a statute require the President to furnish one? If the former, then some consider the agency to be "executive" in nature, while the latter renders the agency "independent." (1) The basic idea is that when top personnel serve at the President's pleasure, executive control over that agency is at its height. By contrast, when Congress limits the President's ability to fire, it seeks to shield the agency from presidential influence.

Some have pushed back on this "binary" view of agencies, however, to insist that agency independence is instead a matter of degree. (2) From this perspective, what matters are not removal restrictions in isolation, but rather a number of factors bearing on the President's ability to dictate policy. Consider, for example, congressional use of multimember structures, partisan balancing requirements, or specified terms of tenure. The more robust each of these features are, the more difficult it is for the White House to call the shots. Increased effort is required for the President to convince many agency heads instead of one, to convince those from a different party, and to remove someone entitled to a definite term. Because agencies possess these individual features to varying degrees, agency independence must be understood along a spectrum. (3)

This perspective also looks to the top of the administrative hierarchy. This focus is understandable given that Congress typically grants final decisionmaking authority to agency heads. But the buck does not always stop with secretaries and commissioners. (4) Rather, these leaders often relinquish their decisionmaking authority to their subordinates. In other words, they subdelegate their power--not only to fellow political appointees, but often to tenure-protected career staff. (5) These subdelegations are sometimes legally enforceable, but even when they are not, norms and resource constraints often result in effectively final, discretionary authority below agency heads. (6) And these delegations to civil servants, as this Article will show, are more common than previously understood.

Not only are such delegations pervasive, they can also be substantial in scope. They are decidedly not garden-variety authorizations to fetch coffee and make copies, so to speak. Rather, they are decisions that affect outside parties' legal rights and obligations. Take, for example, the Administrator of the National Highway Traffic Safety Administration's (NHTSA) decision to assign rulemaking authority to a career Associate Administrator. (7) The action gave the civil servant the authority "to exercise the powers and perform the duties of the Administrator" to "set[] motor vehicle safety and theft prevention standards" as well as "fuel economy standards." (8) Notably, the NHTSA Administrator reserved the authority to issue, amend, or revoke final rules concerning safety and fuel economy standards, (9) but did not do so for theft prevention standards. (10)

NHTSA's Associate Administrator for Rulemaking--again, a tenure-protected civil servant--has made consequential use of this delegated authority. In recent years, the Associate Administrator has invoked this authority to grant exemptions to automakers from a theft prevention regulation; (11) issued notices of proposed rulemakings concerning fuel economy calculations and safety standards; (12) and delayed, for a year or more, the effective date of more rigorous safety regulations concerning many auto parts. (13) Indeed, the Associate Administrator's website takes public credit for the agency's actions, stating that the civil servant's "office is responsible for setting the nation's vehicle safety standards, fuel economy regulations, anti-theft and consumer information regulations, and international harmonization and policy." (14)

Consider another high profile devolution of authority that has been in place for over twenty years. In 1990, Congress instructed the Secretary of Health and Human Services (HHS) to issue a recall upon finding that a medical device "would cause serious, adverse health consequences or death." (15) The Secretary delegated this authority to the Assistant Secretary for Health, who further delegated authority to the Food and Drug Administration (FDA) Commissioner. (16) The Commissioner ultimately passed that final decision-making authority down to sixteen separate FDA career executives, all Directors and Deputy Directors of various FDA offices and centers. (17) Many of the resulting recalls have been high profile and controversial. (18) This devolution of authority is not an aberration for the FDA; a recent study found that career employees issued "almost all" of the 1,891 FDA rules published from 2001 to 2018. (19) In other words, virtually every final rule issued by the FDA over an almost twenty-year period was signed by a civil servant. Indeed, we find that FDA is the agency with the most published subdelegations in our dataset. (20)

Multimember commissions devolve their authority too, though the dynamics can be more complex, especially with partisan balancing requirements. In 2011, for example, a Democrat-dominated Federal Communications Commission delegated authority to its Wireless Telecommunication Bureau (WTB)--headed by a career executive--to resolve disputes arising out of a rule governing domestic data roaming. (21) The delegation was made after a 3-2 vote along party lines. (22) Three years later, the head of the WTB granted a petition in favor of T-Mobile's interpretation of the rule with which the sitting Republican Commissioners disagreed. (23) The Republican Commissioners publicly called on the Chair to bring the matter to a full commission vote, which never occurred. (24) One of the Commissioners protested that he "didn't just go through the confirmation process in order to have bureaus and advisory committees make decisions that should be made by Commissioners." (25) Notwithstanding the Commissioner's complaint, the WTB's decision was not revisited. (26)

Examples like these reflect a bureaucracy overseen by civil servants and hidden in plain sight. It hums along even when the agency is beset by vacancies at the top or otherwise helmed by acting officials. (27) Even when presidentially appointed, Senate-confirmed officials are in place, some are unaware that subdelegated authority is even being exercised below. In advising new Commissioners, for example, a former Commissioner of the Securities and Exchange Commission (SEC) recounted his experience: "From time to time, you might read in a newspaper about a 'Commission action,' and you will have no idea what it is about." (28) The former Commissioner explained that this is often because "the staff ha[s] taken action pursuant to the more than 376 separate rules where the Commission previously granted delegated authority to the SEC staff." (29) His tone of resignation reflects not only the magnitude of subdelegated authorities, but also the costs of learning about them.

Notably, the subdelegations studied here are created through relatively entrenched grants of power by executive actors. First, they are sticky because they are published in the Federal Register and then codified in the Code of Federal Regulations (CFR). The Federal Register is the federal government's official daily publication for rules, including the internal rules of agency practice and procedure delegating authorities. (30) The CFR, in turn, is the government's "codification of the general and permanent rules published in the Federal Register by the departments and agencies of the Federal Government." (31) Both are highly formal venues that require attention to drafting conventions and review by the Office of Federal Register.32 Second, as we will show, executive actors often issue subdelegations during the midnight period before a presidential transition. As a result, reversal can be costly for new administrations given their competing priorities and steep learning curves. (33) Finally, these delegations can also become functionally entrenched as various interests coalesce around them. (34) Indeed, our study reveals that, once granted, these more formal delegations are rarely revoked. (35)

As such, there exists another species of independent agency that demands a reckoning. Call these submerged independent agencies. Submerged independent agencies are headed by civil servants that exercise authority originally delegated by Congress. They are "agencies" under almost any definition of the term: their heads exercise discretionary governmental authority. (36) As a result, there are often elaborate bureaucracies that arise to support this decisionmaking. (37) And these agencies are "independent" under either the binary or non-binary view: they are headed by tenure-protected officials. They also exist on a spectrum featuring heads with varying degrees of independence, from members of the Senior Executive Service to lower-level career staff. (38) Finally, these...