On the Friday after the election last November, the student editors and I convened scholars from across the country at the University of Michigan Law School to discuss the future of agency independence. The goal was to center our discussion on the traditional unitary executive debate and then look beyond statutory restrictions on the President’s removal power to explore other contours of agency independence in modern regulatory governance. Those included the role of scientific expertise and politics in agency decisionmaking, the decisional independence of agency adjudicators, and the importance of a professionalized civil service. When we planned the symposium, we did not know who would win the presidential election. Nor could we have predicted the extent that these aspects of agency independence would be affected by a new administration. In the first months of the second Trump Administration, the future of agency independence—in all its respects—has been challenged. We have seen heads of several so-called independent agencies fired without cause, contrary to statutory for-cause removal protections. Those fired agency officials are challenging their removal in court, which will no doubt lead the Supreme Court to consider whether to overrule Humphrey’s Executor—its landmark precedent that blessed Congress’s constitutional authority to require for-cause removal for the heads of certain multi-member independent agencies. Indeed, in May, the Supreme Court stayed lower-court orders that had preliminarily enjoined the firings of a member of the National Labor Relations Board and a member of the Merit Systems Protection Board. In dissent, Justice Kagan accused the majority of “overturning or narrowing” Humphrey’s Executor on the emergency docket. President Trump also fired some seventeen inspectors general across the administrative state without adhering to the statutory thirty-day notice requirement to Congress. Similarly, the Justice Department has decided that it will not defend the removal protections for administrative law judges (ALJs), opening the door for agency heads to fire ALJs at will. With the help of Elon Musk and his novel Department of Government Efficiency, federal agencies have fired thousands of career civil servants and cut back on, or outright eliminated, government programs and infrastructure that house and facilitate the use of scientific and other technical experience in regulatory governance. In retrospect, this Future of Agency Independence Symposium could not have been more prescient. The important conversions that started at the in-person symposium and that continue in the pages of this symposium issue of the Journal of Law Reform make meaningful contributions to the literature and debates on the future of agency independence. And they will no doubt spark further conversations as well as doctrinal, empirical, normative, and theoretical scholarship that will shape the response to the second Trump Administration’s actions and the Supreme Court’s reply. To introduce this symposium issue, I separate these conversations into the four panels that took place at the in-person symposium.
Christopher Walker (Wed,) studied this question.