The Catholic University of America

CUA Law Professor Marshall Breger co-authored an article entitled "Independent Agencies in the United States: The Responsibility of Public Lawyers" published in the Winter 2016 issue of the Public Lawyer. The Public Lawyer is a publication of the American Bar Association. See below. 

Independent Agencies in the United States: The Responsibility of Public Lawyers

From: the Public Lawyer
Date: Winter 2016
Author: Marshall J. Breger and Gary J. Edles

. .  .

Independent federal agencies occupy a special constitutional position in the governmental structure. Their stock-in-trade is the expert, apolitical resolution of regulatory issues. They are supposedly “independent” of the political will of the executive branch. Because most are multi-member organizations, they are also perceived as accommodating diverse views and able to prevent extreme outcomes through the compromise inherent in the process of collegial decision-making. But such a view is not universally held. A wellknown examination of such agencies in the 1930s described them uncharitably as a “headless ‘fourth branch’ of government, a haphazard deposit of irresponsible agencies and uncoordinated powers.”1

Most modern independent agencies, in fact, are not simply impartial government referees. Nonetheless, as Justice Breyer has suggested, they possess “comparative freedom from ballot box control” 2 and “enjoy an independence expressly designed to insulate them, to a degree, from the ‘exercise of political oversight . . .’” that affects cabinet or cabinetlike executive agencies.3 So, precisely what is the place of independent agencies today, and what does their role in the governmental structure mean for public lawyers?
. . .



Marshall Breger  

Professor Marshall Breger's
Areas of Expertise

Foreign Relations Law

The Middle East Peace Process

Administrative Law


For additional information about our professors' areas of speciality, see his faculty page.