In three prior posts here, here, and here, I have been exploring possible reforms that Congress could enact to constrain executive power. The first set of reforms involves shifting power from the agencies to Congress. The second set of reforms involves shifting power from agencies to the judiciary. In this post, I will discuss a third set of reforms – reforms that, instead of shifting power to another entity, place limits on the internal operations of agencies.
These reforms have the advantage of not primarily relying on other actors. Instead, they place obstacles on agencies’ ability to regulate.
One possible reform is to employ more bipartisan commissions. The independent agencies are typically commissions with a significant number of commissioners from the minority party. This helps to deter the agency from taking politically partisan acts, because the minority party commissioners are inside the agency.
While such bipartisan commissions have generally been limited to independent agencies, I believe it might make sense to use them even for executive branch agencies. It is true that the President might direct the commissioners from the opposing party as to how to vote. But having those commissioners in the inside would still check partisan schemes.