Law Commons^™

Independent Agencies Under Attack: A Skeptical View Of The Importance Of The Debate, Susan Bartlett Foote

Duke Law Journal

The 1980s have witnessed two related but distinct attacks on independent agencies. 1 One attack is grounded in constitutional theory. Some have argued that independent agencies, those "strange amalgam[s]" that blend the functions of all three branches but are the creatures of none, violate the separation of powers doctrine in the Constitution. 2 This approach has been labeled "neoclassical" 3 or the "new formalism." 4 These terms suggest a rediscovery of fundamental constitutional principles. Another attack proceeds from an organizational perspective. Without clear lines of authority from one branch of government, independent agencies are politically unaccountable, and therefore vulnerable to …