Reform proposals related to executive control of the administrative state
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Executive control of agencies is one of five pillars used to understand Ballotpedia's coverage of the administrative state. It focuses on the balance of power between administrative agencies and the executive branch.
Executive control is a central concept in the debate over the nature and scope of the administrative state. It involves three primary components: appointment and removal power, executive review of agency rules, and legislative review of executive actions. The appointment and removal power is the authority of an executive to appoint and remove officials in the various branches of government. Executive review of agency rules mandates that the governor or another part of the executive branch review all agency rules.
This page contains reform proposals related to executive control of the administrative state. Ballotpedia has identified four major types of reform categories related to executive control:
- Appointment and removal authority: This reform category includes proposals that adjust who has the authority to appoint or remove officials within administrative agencies.
- Executive regulatory oversight: This category includes reforms aimed at increasing executive oversight and control over federal agency regulatory processes.
- Broader executive authority: This category encompasses reform ideas designed to expand presidential and gubernatorial control over broader aspects of executive branch management and coordination.
- State executive oversight: This reform category includes the oversight of administrative agencies by state executive officials through mechanisms such as review processes, reporting requirements, or approval authority.
Appointment and removal authority
This category focuses on reforms related to the president’s and power to appoint and remove executive officials, particularly agency heads.
Restore the president's ability to remove agency leaders
This reform proposal argues that the president should be able to remove agency heads at will based on inherent constitutional powers.
- Representative Chip Roy (R-Texas) on July 28, 2022, introduced the Public Service Reform Act (PSRA)—legislation that aimed to mitigate federal employee actions that run counter to executive branch priorities by making federal employees removable at will.[1] The bill did not pass the 117th United States Congress. Rep. Roy reintroduced the bill on May 5, 2023. Senator Rick Scott (R-Fla.) introduced the bill in the U.S. Senate on May 9, 2023.[2][3]
- Senators Mike Lee (R.-Utah) and Josh Hawley (R.-Mo.) introduced the Take Care Act on June 5, 2019.[4] The act would eliminate restrictions on the ability of presidents to remove upper-level executive branch officers.[4]
- Judge Neomi Rao argued in a 2014 law review article that Congress should eliminate for-cause removal restrictions that keep presidents from removing agency officers at will.[5]
- Professor J. David Alvis wrote in a 2019 article that independent regulatory commissions "will only encourage Congress to shirk its duties, and it will exacerbate the problem of the lack of political accountability. Placing these agencies under the removal authority of the President, on the other hand, would improve the process of legislation by giving Congress the proper incentive to assume its constitutional responsibility under the country’s separation of powers rather than delegate that power to another agency."[6]
Establish clear executive branch guidelines defining "willful disobedience" of presidential directives as grounds for removal
This reform proposal seeks to clarify and formalize the conditions under which agency officials can be removed for defying presidential directives.
- Law professor Geoffrey P. Miller argued in a 1986 law review article, "Most statutes establishing independent agencies can easily be construed as including disobedience of the President's lawful instructions within the varieties of 'cause' for which presidential removal is already authorized. In the relatively infrequent cases where the statutes cannot be so construed, the unconstitutionality of the removal provision would not ordinarily invalidate the agency's substantive and enforcement powers. And the President can be expected in some cases voluntarily to eschew the power to remove particular officers who now head 'independent' agencies, either by means of a formal commitment or by informal policy. This is not to deny that the proposal would have a potentially significant impact. Its effect would be to increase, in more or less important ways, the control that the President is able to exercise over the federal bureaucracy. Such a change, however, might well be a beneficial development."[7]
Challenge appointment restrictions that impede the president's constitutional authority
This reform proposal urges the DOJ to contest statutory or structural constraints on the president's appointment powers that may be unconstitutional.
- According to a 2007 note published in the Harvard Law Review, "Courts should find political party restrictions on presidential appointment power unconstitutional because they have no basis in the U.S. Constitution and there is no contemporaneous practice in support of those restrictions."[8]
- Attorney Kirti Datla and professor Richard L. Revesz argued in a 2013 law review article, "There is no consensus on what limits on presidential interference come with status as a fourth branch, which is unsurprising given the slim doctrinal basis for that status. We therefore conclude that the Humphrey's Executor dicta should be abandoned. It rests on a flawed understanding of the ways Congress insulates agencies from presidential control. The subsequent significant expansion of the administrative state and increased complexity of the President's relationships with administrative agencies underscore the untenable logic of the Humphrey's Executor dicta. … [W]e accept that, within limits, Congress can by statute impose certain constraints on the President's exercise of his Article II powers. Our argument is simply against fashioning a constitutional doctrine that would bootstrap onto a statutory constraint a set of other constraints not specified in that statute."[9]
Require that any congressional limitations on presidential personnel authority be explicit, narrow, and clearly justified
This reform proposal argues that Congress must strictly define and justify any constraints placed on the president’s personnel powers.
- According to a 1994 law review article by Cass R. Sunstein and Lawrence Lessig, "In view of what we see as the constitutional backdrop, however, courts should probably invoke a 'clear statement' principle; one that interprets statutes to grant the President broad supervisory power over the commissions. On this approach, courts would allow the President such power unless Congress has expressly stated its will to the contrary. Such an approach would minimize the risks of the independent agency form and promote coordination and accountability in government. It would recognize that many independent agencies perform important policymaking functions, and that the performance of such functions by truly independent agents is plausibly inconsistent with the constitutional structure. At the very least, we would require Congress to speak unambiguously if it wants to compromise those goals. These suggestions do not answer the question of precisely when the President may discharge the commissioners. But they do indicate that he has far more authority than is usually thought.”[10]
Counterpoint: Maintain the current statutory framework governing executive appointments and removals
This approach argues that the existing statutory system strikes a fair balance between executive power and agency independence and should be preserved.
Claim: The president's appointment and removal powers have a limited impact on genuine agency independence
- Administrative law scholar Adrian Vermeule argued in a 2012 paper that unwritten public norms, or conventions, have a greater impact on agency independence than the president's appointment and removal power: "The legal test of independence fails adequately to describe or make sense of agency independence in practice. The communities that operate the administrative state – executive and legislative officials, agency personnel, the administrative law bar, commentators on administrative law, and regulated parties – create and follow observable norms of agency independence that are not derived from the judicial doctrine, and that in some cases cannot be squared with it. In particular, for-cause tenure protection turns out to be neither necessary nor sufficient for the operational independence of administrative agencies."[11]
Counterpoint: Strengthen civil service protections to ensure a professional and nonpartisan bureaucracy
This reform proposal supports expanding civil service rules to protect against politicization and promote expertise in agency staffing.
- UCLA law professor Jon Michaels argued in an article for the American Constitution Society that protections for civil servants should expand.[12] He argued, "As it stands, political appointees are not permitted to fire or demote civil servants absent good cause. Such prohibitions on adverse employment actions must be broadened to include a wider range of (adverse) geographic or portfolio reassignments, of which we’ve seen plenty during the Trump presidency; and the prohibitions must be tightened to facilitate appeals by aggrieved civil servants, in which evidence of a good-faith policy disagreement constitutes a rebuttable presumption in favor of immediate reinstatement."[12]
- University of Texas law professor Thomas McGarity proposed creating a firewall between political appointees and career agency experts in an article for the American Constitution Society.[12] He argued, "The entire operation of the scientific and technical staff and the agency’s scientific integrity office should be located inside the firewall to protect them from political interference. The management of these technical personnel — their budget, their assignments, and their hiring and firing — should also be protected by the firewall. Career managers would do the hiring and firing, make the assignments, and propose annual budgets that could be considered, alongside the administration’s proposal, by Congress. These managers would not report to personnel within the agency, but instead to an independent unit, perhaps even a new agency in the Congressional Research Service or General Accounting Office that retains independence from the executive branch. This outside, independent agency would also manage the hiring of these key career managers. Managers would be protected from disciplinary action except through the office that hired them."[12]
- The Preventing a Patronage System Act of 2021 (PPSA Act) was sponsored by Rep. Gerald Connolly (D-Va.) and introduced in the U.S. House of Representatives on January 13, 2021. The bill aims to prohibit federal agencies from placing competitive service positions into the excepted service and from placing excepted service positions into a schedule outside of Schedules A through E. The bill passed the House on September 15, 2022.[13]
Executive regulatory oversight
This category includes reforms aimed at increasing executive oversight and control over agency regulatory processes, by either the president or governors.
Enhanced executive review
This subcategory includes proposals to expand the executive’s ability to oversee, influence, or halt regulatory actions taken by agencies.
Establish executive review of significant regulations
This reform proposal would create a strong review process led by the executive branch with the authority to amend, delay, or halt significant agency regulatory actions.
Require agencies to certify alignment with executive policy goals and directives before advancing regulations
This reform proposal would mandate that agencies formally verify that proposed rules comply with the priorities and directives set by the executive.
Enforce adherence to a unified regulatory agenda set by the executive, limiting deviations or independent agency action
This reform proposal would require agencies to follow a coordinated regulatory plan developed and directed by the executive branch.
Require governor’s signature for regulations with the force of law
This reform proposal would mandate that all regulations carrying the force of law receive the governor’s formal approval, increasing executive oversight and accountability in the rulemaking process.
- The PLF argues that "Rules that have the force of law should be signed by the governor just like any other law. Far too often, however, state rules are signed by unelected bureaucrats who are not democratically accountable to anyone. American democracy requires lawmakers to be directly accountable to the people. When unelected bureaucrats make rules, they need not consider everyone’s best interests or concerns, because citizens have no way of removing them from office. Rulemaking by unaccountable bureaucrats also enables higher-level executives, including those who are democratically elected, to avoid accountability for these rules. Even when a governor appoints the agency heads, it’s much more difficult to claim he or she did not know a much-criticized rule was issued if the governor is required to approve the rule before it takes effect."[14]
Regulatory transparency and economic analysis
This subcategory includes reforms aimed at increasing regulatory transparency and economic analysis in the rulemaking process.
Mandate comprehensive cost-benefit analysis of major rules, subject to executive oversight
This reform proposal requires agencies to evaluate the economic impact of significant regulations, with final review or approval by the executive.
- Paul R. Noe, a former staffer in the Office of Information and Regulatory Affairs during the George W. Bush administration, argued that "[t]he majority of environmental statutes—and, to our knowledge, the majority of all regulatory statutes—are silent or ambiguous on cost-benefit analysis. And agencies too often interpret such statutes as only allowing limited consideration of costs and benefits. The next President should take a major step to enhance societal wellbeing by directing agencies, including independent agencies, to reexamine their statutory interpretations in light of Riverkeeper and its progeny and, 'unless prohibited by law,' implement those statutes through cost-benefit balancing."[15]
Include automatic expiration dates in regulations, requiring executive renewal to remain in effect
This reform proposal would impose sunset clauses on regulations, ending them unless reaffirmed by the executive.
Broader executive authority
This category includes reform ideas aimed at expanding the executive’s control over various aspects of executive branch management and coordination, including both presidents and governors.
Executive oversight and agency reorganization
This subcategory focuses on reforms that expand the executive’s authority to influence agency governance, leadership, and structural changes.
Expand executive authority to restructure or influence leadership of independent agencies
This reform proposal would give the executive the ability to adjust how independent agencies are governed and managed.
Permit the executive to propose fast-tracked legislative changes for agency reorganization or closure based on audit findings
This reform proposal would allow executives to submit expedited legislative packages to reform or eliminate agencies following internal reviews.
Agency restructuring by the executive to merge, consolidate, or eliminate executive agencies
This reform proposal focuses on structural changes to agencies, giving the executive the authority to direct mergers, consolidations, or eliminations based on their assessment of agency functions.
Require annual executive branch-led reviews of agency efficiency and regulatory outcomes, reporting directly to the executive
This reform proposal would establish a regular review process to evaluate agency performance, with findings reported directly to the executive.
Unitary executive control
This subcategory explores proposals advocating for centralized control over the entire executive branch.
Unitary executive control
This reform proposal explores constitutional interpretations that advocate for centralized control over the entire executive branch.
Executive budgeting authority
This subcategory focuses on expanding executive influence over the budgeting process as it relates to agencies.
Enhance executive authority to directly formulate and control agency budget requests to align with executive priorities
This reform proposal calls for greater executive influence over the budgeting process as it relates to agencies, ensuring alignment with executive priorities.
State executive oversight
This category includes reforms that expand the role of governors and state officials in overseeing or interacting with federal executive agencies.
Require federal agencies to provide governors with substantive oversight of federal grants within their respective states
This reform proposal increases the role of governors in monitoring how federal grants are managed and implemented in their states.
Empower state attorneys general to challenge federal actions that infringe on state sovereignty or presidential authority
This reform proposal supports giving state attorneys general standing to oppose federal agency actions on sovereignty grounds.
Require governors to review new federal agencies impacting their states and provide recommendations for presidential action
This reform proposal mandates state-level review of new federal agencies and their effects, with input sent to the president.
Require governor to review new agencies and allow activation/deactivation
This reform proposal suggests that governors have authority to assess and either activate or deactivate new federal agencies within their states.
Require governor’s signature for all regulations with the force of law
This reform requires that any regulation carrying the force of law must receive the governor’s formal approval before taking effect, strengthening executive oversight of the regulatory process and reinforcing the separation of powers within the state.
- The Pacific Legal Fund argues that "Rules that have the force of law should be signed by the governor just like any other law. Far too often, however, state rules are signed by unelected bureaucrats who are not democratically accountable to anyone. American democracy requires lawmakers to be directly accountable to the people. ... it’s much more difficult to claim he or she did not know a much-criticized rule was issued if the governor is required to approve the rule before it takes effect."[16]
Footnotes
- ↑ GovTrack, "H.R. 8550," accessed January 23, 2023
- ↑ Congress.gov, "H.R.3115 - Public Service Reform Act," accessed August 31, 2023
- ↑ Congress.gov, "S.1496 - Public Service Reform Act," accessed August 31, 2023
- ↑ 4.0 4.1 Senator Mike Lee, "Sens. Lee and Hawley Introduce the Take Care Act," accessed June 25, 2019
- ↑ Alabama Law Review, "Removal: Necessary and Sufficient for Presidential Control," 2014
- ↑ The Heritage Foundation, "The Contested Removal Power," 2019
- ↑ The Supreme Court Review, "Independent Agencies," 1986
- ↑ Harvard Law Review, "Congressional Restrictions of the President's Appointment Power and the Role of Longstanding Practice in Constitutional Interpretation," 2007
- ↑ Cornell Law Review, "Deconstructing Independent Agencies (and Executive Agencies)," 2013
- ↑ Columbia Law Review, "The President and the Administration," 1994
- ↑ Harvard Law School Public Law & Legal Theory Working Paper Series, "Conventions of Agency Independence," 2012
- ↑ 12.0 12.1 12.2 12.3 American Constitution Society, "Rethinking Admin Law: From APA to Z," accessed July 9, 2019
- ↑ Congress.gov, "H.R.302 - PPSA Act of 2021," accessed November 17, 2022
- ↑ Pacific Legal Foundation, "Three Essential Pillars of Regulatory Reform," accessed May 12, 2025
- ↑ The Regulatory Review, "A Paradigm Shift in the Cost-Benefit State," John D. Graham and Paul R. Noe, April 26, 2016
- ↑ Pacific Legal Foundation, "Three Pillars of Reform", accessed June 25, 2025
