Given the political and legal controversy over the Consumer Financial Protection Bureau's status as an independent agency, and the challenge to its structure pending en banc in the D.C. Circuit (go, for instance, here, here, and here), our readers may be interested in The Genesis of Independent Agencies by Patrick Corrigan and RIchard Revesz. Here is the abstract:
The status of independent agencies is almost certainly the most written about and litigated feature of the administrative state. Recently, the legal literature has paid sustained attention to the factors leading the formation of independent agencies. Under what circumstances are agencies more likely to have features insulating them from control by the President? In this Article, using a dataset that we constructed and that had not previously been analyzed, we seek to determine what factors make it more likely that agencies will be accorded what we call “indicia of independence.” We find that three factors in particular play a statistically significant role in making it more or less likely that Congress creates agencies with certain indicia of independence: the approval rating of the President, the size of the Senate majority, and the alignment of the political party of the Senate majority and the President. Of these three variables, two had never been tested prior to our study. In general, we find that Congress is less likely to create agencies with indicia of independence when the President is popular. Additionally, the size of the Senate majority affects whether Congress creates agencies with indicia of independence. When the Senate majority party is aligned with the President, an increase in the size of the majority makes it less likely that Congress will create an agency with indicia of independence. When the Senate majority is not aligned with the President, an increase in the majority makes it more likely that Congress will create an agency with indicia of independence. However, these variables, though statistically significant, do not have much explanatory power. Other unexplained factors for which we do not control in our models explain the majority of the variation in the decision to insulate agencies from presidential control.
