It is often said that the legal touchstone of agency independence is whether the agency head or heads are removable at will, or only for cause. Yet this test does not adequately describe the landscape of agency independence. There are many important agencies who are conventionally treated as independent, yet whose heads lack for-cause tenure protection. Conversely, there are agencies whose heads enjoy for-cause tenure protection, yet are by all accounts thoroughly dependent upon organized interest groups, the White House, legislators and legislative committees, or all of these. Legally enforceable for-cause tenure protection is neither necessary nor sufficient for operational independence.You can download it here.
The crucial consideration, largely neglected in the literature, is the role of what Commonwealth lawyers call conventions. Agencies that lack for-cause tenure yet enjoy operative independence are protected by unwritten conventions that constrain political actors from attempting to remove their members, to direct their exercise of discretion, or both. Such conventions may be generated by a variety of mechanisms; the common feature is that norms arising within relevant legal and political communities impose sanctions for violations of agency independence or create beliefs or internalized moral strictures protecting that independence. Conversely, where agencies enjoy statutory independence yet lack operative independence, the reason is that the interaction among relevant political actors has failed to generate any such set of protective conventions.
The lens of convention helps resolve a range of puzzles about the behavior of Presidents, legislators, judges and other actors with respect to agency independence – including the Supreme Court’s puzzling treatment of SEC independence in Free Enterprise Fund v. PCAOB. By bringing the conventional character of agency independence to the surface, U.S. courts may begin to incorporate ideas from the courts of Commonwealth legal systems – such as the United Kingdom and Canada – that are familiar with the promise and problems of conventions and with the methods for harmonizing conventions with written rules of law. My principal suggestion is that U.S. courts interpreting statutes and constitutional rules that bear on agency independence should adopt the leading Commonwealth approach, according to which judges may indirectly “recognize” conventions and incorporate them into their interpretation of written law, although they may not directly enforce conventions as freestanding obligations.
It is an important contribution to the literature. The concept of independence in American administrative law is a very thin one. Doctrinally speaking, all that counts is whether the head of the agency can be removed by the President for cause or at will. But Vermeule notes that this formal conception of independence is incomplete. The concept of independence popularly and politically understood is much thicker. Focusing on the substance of independence rather than its form is important. Moreover, the vehicle of convention is an interesting one to use.
Canadian readers should find this of interest too, given the institutional independence branch of the rule against bias developed by the Supreme Court of Canada. Again, however, there is a lesson to be learned from Vermeule's approach: whether decision-makers are independent in fact (and seen to be) is perhaps more important than whether they are independent measured by some doctrinal test.