Tyler B. Lindley (Brigham Young University - J. Reuben Clark Law School), Cree Jones (BYU Law School), & Thomas Smith have posted Testing the Independence Hypothesis (77 Administrative Law Review (forthcoming 2025) on SSRN. Here is the abstract:
President Trump's second term began with an immediate and unprecedented wave of forced removals across agencies, some in clear violation of statutory removal restrictions imposed on the President by Congress. Although the Supreme Court has long held that these kinds of removal restrictions are generally constitutional, the Court has recently concluded that some such limits contravene Article II of the U.S. Constitution by limiting the President's power to control the Executive Branch. Despite these recent rulings, removal restrictions (and the constitutionality) have persisted at almost all independent agencies. The recent wave of removals and the current political climate are almost certain to compel the Court to revisit the constitutionality of removal restrictions and might result in their elimination writ large.
Critics (and dissenting Justices) argues that judicial elimination of these protections will make it more difficulty for agencies to exercise expertise in the face of political pressure. Both those who favor and oppose the Court's current approach to the constitutional question embrace the same hypothesis: removal restrictions change agency behavior. However, very little empirical work has been done to explore whether this fundamental hypothesis at the core of the Court's debate is correct.
This Article is the first to probe the causal relationship embedded in the independence hypothesis. In 2010, the Court held that removal protections for agency leaders at the Public Company Accounting Oversight Board (PCAOB) were unlawful. Using a difference-in-differences analysis, this Article demonstrates there was a delayed effect on early departures at the PCAOB. There is no evidence of a change in early departures at the PCAOB in the first eight years following the judicial elimination of removal restrictions, but the risk of early departure increased by 373 percent from June 2018 through March 2023.
These conflicting findings suggest removal restrictions have a different influence depending on the partisan status of the independent agency. Removal restrictions at a non-partisan agency reflect a bipartisan preference to insulate the agency from unstable political preferences. Removal restrictions at a partisan agency reflect a partisan advantage that insulates the agency from opposing party preferences. Our finding suggest (1) removal restrictions when an agency is in a nonpartisan state do not change agency behavior, since those restrictions are redundant with the underlying preferences of both parties, (2) removal restrictions when an agency is in a partisan state do change agency behavior, since those restrictions operate as a meaningful restraint on removal decisions when the preferences of agency leadership and the Executive branch do not align, and (3) the status of an agency as partisan or nonpartisan is fluid. Thus, our empirical findings suggest that removal restrictions are simultaneously redundant for agencies in a nonpartisan state and a meaningful constraint on removal for agencies in a partisan state, suggesting they are most influential when the restrictions work a partisan advantage. This conclusion suggests that judicial elimination of removal restrictions will likely have real-world effects, particularly in today's polarized political climate.
Important. Highly recommended.
