Where did the constitutional idea of an independent agency come from and what was its justification? I’ve heard a lot about the “unitary executive” but I never see what the counter argument is except for “it would be good to have independent agencies because sometimes democratic input produces bad outcomes and experts do better.” Which yeah, makes sense, nobody argues that democracies make sane decisions - but it’s always an outcome-based argument instead of a legal one.

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wahern 40 minutes ago | parent | next [-]

The debate began with the First Congress, but largely petered out in the early 1800s and didn't really pick up again until the rise of the regulatory state in the early 1900s.

There are newer law review articles but none quite so comprehensive and earnest as Cass R. Sunstein & Lawrence Lessig, "The President and the Administration," 94 Columbia Law Review 1 (1994), https://chicagounbound.uchicago.edu/journal_articles/7779/

That's the same Lawrence Lessig who fought (and lost) copyright extension. 1994 is long before tribal politics became as pervasive and extreme in academia as it is today (not that it didn't exist back then). The paper pulls its punches and assumes unitary executive proponents are arguing in good faith, rather than rationalizing a foregone conclusion.

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Arodex 27 minutes ago | parent | prev | next [-]

The Supreme Court already gave you an answer by pussyfooting around the FED's independence, despite their own legal reasoning that independent agencies can't exist.

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goatlover an hour ago | parent | prev [-]

It came from Congress creating those agencies as is their right to do so, and they were created with the idea of not being weaponize for partisan purposes. We really don't want the DOJ to be the personal enforcement of the president's whims against his political enemies.

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Amezarak an hour ago | parent [-]

It seems controversial that Congress could create independent executive agencies. Could they make the entire executive independent except for the military? Why or why not?

And while I agree we don’t want the DoJ treated that way, that’s how it’s been operated since its beginnings! If anything the past few decades have been relatively not so bad. And regardless of what I want that doesn’t answer whether it would be within Congresses power to make it independent of the President.

	▲	jibalt 30 minutes ago \| parent \| next [-]
		> It seems controversial that Congress could create independent executive agencies. To whom? The U.S. Constitution says that Congress has the power "To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof." That's rather clear. The legislative branch makes those laws and the executive branch executes them. Beyond that its role is limited ... commander-in-chief of the military, pardon power, making treaties (with approval of the legislature), appointing ambassadors, judges, and other officers (with approval of the legislature). The legislature creates (or removes) the departments and sets forth their duties. The role of the executive is to see to it that the departments carry out those duties as established by the legislature.
	▲	goatlover 11 minutes ago \| parent \| prev [-]
		The Congress, representing the will of the people as the re, has the most power of three branches. The president is technically elected by the states via the Electoral College unlike Congressional representatives. The president is supposed to answer to Congress. The purpose was not to have an exectuive wielding the power of a king or a tyrant, which the US founding fathers were worried about.