Brian D. Feinstein (University of Pennsylvania, The Wharton School), Jody Freeman (Harvard Law School), and Sharon Jacobs (UC Berkeley School of Law) have posted Faithful Agencies on SSRN. Here is the abstract:
For nearly a century, Congress’s primary instrument for insulating agencies from presidential control was “independence,” expressed, quintessentially, as for-cause removal protection for agency heads. That era is over. After the Supreme Court’s decision in Trump v. Slaughter, removal restrictions are presumptively unconstitutional, and the remaining hallmarks of agency independence, like staggered terms and partisan balancing requirements, are diminished as a result. Meanwhile, successive presidents have embraced a muscular conception of executive power, which the Trump administration has pressed to the limit.
This Article develops principles of institutional design for an era of presidential unilateralism. Even without removal protections, Congress has many tools at its disposal to help agencies resist an arrogating president. Congress can deploy these tools strategically, bundling and layering them, to hamper a president bent on derailing agencies from their statutory mandates. Canvassing the U.S. Code, we identify scores of statutory design features—many obscure and seldom considered together—that promote agency faithfulness to the enacting Congress’s objectives. We label these devices fidelity structures and organize them into a taxonomy of four categories: financing arrangements, personnel rules, internal architecture, and external linkages. We then map their presence across every executive department and nine major independent agencies, uncovering several striking patterns in their use—with implications for future institutional designers in Congress.
Fidelity structures, we argue, do more than build agency resilience: they vindicate the separation of powers. Because the laws the president must faithfully execute are overwhelmingly the work of past Congresses, the Take Care Clause is by its nature a command to abide by legislative bargains over time. This intertemporal check—yesterday’s legislature constraining today’s executive—is especially important now that party unity has weakened horizontal checks between the political branches.
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