Spurred by recent executive orders concerning administrative agencies, how to conceive of “independent” regulatory agencies under the U.S. Constitution is front and center. This is about more than cost-benefit analysis, whether a federal regulatory agency acted outside its authority, or cost savings. This is about the separation of powers between Congress under Article I and the president under Article II within our constitutional structure. Do independent administrative agencies perform legislative functions, executive functions, or both?
The Supreme Court has spoken to this as far as back as the 1935 Humphrey’s Executor case. It’s expected that the court will address this question anew, determining the reach and interplay of the executive and legislative branches in light of the administrative state’s growth over decades.
