The Harvard Law Review has published a note entitled Independence, Congressional Weakness, and the Importance of Appointment: The Impact of Combining Budgetary Autonomy with Removal Protection.
From the introduction:
[I]ndependent agencies, although somewhat insulated from presidential pressure through removal restrictions, remain accountable to the political branches, especially Congress, through appropriations. However, when the traditional independent agency model is combined with self-funding, as was done with the [Consumer Financial Protection Bureau], control is substantially diminished, especially because of reduced congressional power. Thus, appointment becomes the primary means of control. The heightened importance of appointment is likely to create gridlock and confirmation fights unless the agency rests upon a strong political consensus.
- Rachel E. Barkow, Insulating Agencies: Avoiding Capture Through Institutional Design, 89 Tex. L. Rev. 15 (2010) (“Agencies cannot survive without resources, so the source of their funding is a critical, though largely overlooked, key to their power. . . . A more powerful alternative is to provide agencies with an independent funding source, such as by requiring regulated interests to pay mandatory fees to the agency. For example, the Federal Reserve is authorized to levy assessments against member banks to fund its operating budget. So, too, is the Office of Thrift Supervision, the Office of the Comptroller of the Currency, and the [Public Company Accounting Oversight Board]. With independent funding, the agency is insulated from Congress as well as the President. . . . Thus, the lesson with respect to funding independence—as it is with all elements of agency design—is that no one particular feature can be viewed in isolation. It is critical to assess the overall structure of the agency.”).
- David Zaring, The Final Days of the Office of Thrift Supervision, RegBlog (May 22, 2012) (“Our research examined a particularly disparaging criticism of OTS: did this agency offer banks soft touch regulation as a way of competing for supervision fees against more rigorous regulators? We did not find much evidence in support of this oft-proffered view.”) (citing David. T. Zaring & Dain C. Donelson, Requiem for a Regulator: The Office of Thrift Supervision’s Performance During the Financial Crisis, 89 North Carolina Law. Rev. 1777 (2011)).
- D.C. Circuit Holds IRS Appeals Officers Are Not Subject to the Appointments Clause, D.C. Circuit Review (Apr. 20, 2012)