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Chapter Five The Progressive Era and Independent Regulatory Commissions Here we examine the 1935 Supreme Court case Humphrey’s Executor v. United States in light of Congress’s creation of independent regulatory commissions. Because IRCs were a means of buffering administration from presidential control over removals, scholars have long argued that the rise of IRCs can be explained as a victory of the Progressive movement in American politics (1890–1920). According to many Progressive reformers during this period, administration ought to be liberated from accountability to any political branch of government so that scientific expertise could design efficient forms of regulation. There is much to this story, but it does not wholly explain the way the Court treated the removal power in 1935. As we show below, the creation of the IRCs took a path similar to previous manifestations of advise and consent doctrine, particularly that suggested by Elbridge Gerry during the congressional debates in 1789 and later by Daniel Webster in the nineteenth century. The history surrounding the creation of IRCs shows that neither Congress nor the president really regarded IRCs as truly independent. As in the case of Daniel Webster’s evolution from advise and consent to congressional delegation in the 1830s, Congress was most emphatic about the “independence” of regulatory commissions only when challenging the president’s claim over the administration. Members of Congress in the twentieth century wanted IRCs to function as legislative adjuncts. In particular , what might have been a desire for a truly nonpolitical agency of government became in fact an effort by Congress to shield officers from removal in areas where Congress wanted to retain authority over administration . Presidents, by contrast, believed that the regulatory commissions should aid the president in executing the law. This contest between congressional delegation and executive power theory can be seen in Justice George Sutherland’s opinion in Humphrey’s. Lastly we look to President Franklin Roosevelt’s efforts to reinvigorate the executive administration in 1937. Roosevelt hoped to reorganize the executive branch so that it could carry out his ambitious and unprecedented 141 142 Chapter Five economic plans under the New Deal. But Roosevelt was conscious that he faced a new set of challenges in doing this when Congress, also increasingly sensitive to administrative issues, had denied the White House a free hand in controlling many of the most important regulatory agencies of government. Consequently, Roosevelt would bring together Madison’s argument for executive responsibility as well as the Jefferson-Jackson arguments for democratic accountability to a new level of intensity. Introduction The emergence of independent regulatory commissions around the turn of the twentieth century complicates our framework for the study of the executive removal power. IRCs assign their members tenure for a limited period and immunize them from at-pleasure removal by the president. For most historians, IRCs are regarded as the brainchild of the Progressive Era, when many political thinkers had come to the conclusion that modern economic regulation required a new style of governing outside of the traditional separation of powers scheme. IRCs, according to Progressives, would be shielded from the political influence of Congress and the president so that their members could employ their expertise and specialized knowledge over the regulation of the economy. As Stephen Skowronek has argued, the American “state” emerged in a patchwork fashion because of the competition between “the constancy of the Constitution of 1789 and the destructive consequences of constructive reform initiatives.” Even as this haphazard construction resulted in “operational confusion,” the IRCs represented the “signal triumph” of the Progressive state-building aspiration to disjunction rather than continuity with the past. “The national administrative apparatus was freed from the clutches of party domination, direct court supervision, and localistic orientations only to be thrust into the center of an amorphous new institutional politics.”1 To be sure, the literature on state-building that took place during the first half of the twentieth century is rich. Daniel Carpenter, for example, has argued that the key variable in the development of the state was not the emergence of IRCs, which he sees as too wedded to a Progressive interpretation of the period, but rather the abilities of executive agencies to enhance their reputations and build networks.2 Below we focus on the way the IRCs affected the removal power in this period. In 1935 the Supreme Court legitimized the anomalous arrangement surrounding IRCs in Humphrey’s Executor v. United States. It reasoned that the members of these commissions derived their immunity...

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