米国の独立行政法人：法、構造と政治 Independent Agencies in the United States : Law, Structure, and Politics

著者名：Breger, Marshall J., Professor/Edles, Gary J., Professor

Oxford University Press（2015/04/01発売）

• 言語：ENG
• ISBN：9780199812127
• eISBN：9780190266820

Description

Independent Agencies in the United States provides a full-length study of the structure and workings of federal independent regulatory agencies in the US, focusing on traditional multi-member agencies, such as the Securities and Exchange Commission, the Federal Communications Commission, the National Labor Relations Board, and the Federal Trade Commission. It recognizes that the changing kaleidoscope of modern life has led Congress to create innovative and idiosyncratic administrative structures including government corporations, government sponsored enterprises governance, public-private partnerships, systems for "contracting out," self-regulation and incorporation by reference of private standards.

Table of Contents

Preface xi 1. Introduction 1 2. How the Independent Agency Developed: The Search For Expertise 19 A. The Interstate Commerce Commission 19 1. Regulation in Britain 23 2. State Regulation in the United States 26 3. Place in the Executive Branch 31 B. The Federal Trade Commission 37 C. The Federal Power Commission 41 D. The National Labor Relations Board 43 E. Federal Reserve Board: Independence as Needed 49 F. Observations 56 3. Theories of Agency Independence 59 A. Theory of the Unitary Executive 59 B. Other Efforts to Centralize Executive Power 67 C. The Functionalist Response to the Unitary Executive Theory 71 D. Political Will and Independence 75 E. Presidential Directive Authority 80 F. Observations 84 4. The Modern Agency: Structure and Appointments 87 A. Historical Characteristics of Independence 87 1. Modern Definitions of Independence 88 2. Organizational Structure 93 B. Appointments 95 1. Principal and Inferior Officers of the United States 100 2. Changing Character of an Appointment 108 3. Free Enterprise Fund in the Lower Courts 109 4. Free Enterprise Fund in the Supreme Court 112 5. Recess Appointments 119 a. What Counts as a Recess? 120 b. What Counts as a Vacancy? 124 c. Legislative Efforts to Restrict the President's Recess Appointment Power 126 6. Concerns over Length of Appointment of United States Attorneys 128 7. "Packaging" Appointments 129 C. Observations 131 5. The Modern Agency: Removal Protection as an Indicator of Independence 133 A. Introduction 133 B. Early Congressional and Judicial Attacks on Removal by the President 135 C. The Historic Removal Trilogy: Myers, Humphrey's Executor, and Wiener 140 D. The Morrison “Twist” 143 E. Grounds for Removal 144 F. Procedures for Removal 151 G. End of Service 157 H. An International Twist on the Removal Issue 158 I. Observations 160 6. The Modern Agency: Other Indicia of Independence 163 A. Control of Agency Submissions to Congress 163 B. Control of Litigation 167 C. Independent Funding Authority 172 D. Freedom from Centralized Office of Information and Regulatory Affairs Review 176 1. The Evolution of Centralized Review 176 2. The Application of Centralized Regulatory Review Authority to the Independent Agencies 180 E. Selection of Agency Vice Chairs 191 F. Observations 192 7. Institutional Design: The Tension Between Autonomy and Accountability 195 A. Introduction 195 B. The Staying Power of Independent Regulatory Agencies 196 C. Unsuccessful Shift to the Single Member Option 199 1. Nuclear Regulatory Commission 199 2. Federal Energy Regulatory Commission 202 D. A Preference for the Single Member Option 205 1. Social Security Administration 205 2. Federal Housing Finance Agency 209 3. The Continuing Saga of the Consumer Financial Protection Bureau: Birth of the Idea 213 a. Freestanding Independent Agency 214 b. Elizabeth Warren, Czar 216 c. Interim Authority of the Treasury 217 d. Housed in the Federal Reserve 217 e. A Multimember Board? 218 f. A Director Is Nominated 220 g. Accountability and Independence 221 E. Successful Closures 222 1. Civil Aeronautics Board 222 2. Trucking Deregulation: Closing the Interstate Commerce Commission 223 F. Independent Oversight Agencies 224 G. Independent Agencies Squarely in the Executive Branch 226 H. Promoting Executive Branch Autonomy and Accountability to Congress 231 I. Split Enforcement Model 232 J. Divided Accountability: The Separation of Policy and Adversarial Functions Within Agencies 233 K. Shared Regulatory Space: An Assessment 236 L. Inspectors General 243 M. Observations 246 8. Further Along on the Continuum: Government Functions and Private Enterprise 249 A. Public Corporations 250 1. Historical Foundations 250 2. Organization of the Public Corporation 255 3. Recent Development of Public Corporations 258 B. Government Constraints and Constitutional Obligations on Public Corporations 259 1. General Obligations 259 2. Statutory Obligations 260 3. State Action Doctrine 261 C. Government Sponsored Enterprises 264 D. Private Action by Federal Agencies 269 E. Privatization 271 1. The Challenge of Delegating Government Functions to Private Parties 272 2. Department of Defense Privatization 277 3. Private Standard Setting Organizations 279 4. Self-Audits and Third Party Audit Regimes 281 5. Supervised Self-Regulation of the Securities Industry 282 F. Observations 287 9. Internal Agency Operations 289 A. Role of the Chair 289 1. Salary and Status 294 2. The Need for Centralized Administration 295 B. Institutional Decision-Making 314 1. Collegial Decision-Making and Dissenting Opinions 314 2. The Government in the Sunshine Act and the Dilemma of Collegiality 316 3. Quorum and Voting Requirements 324 4. Disqualification, Bias and Recusal 338 5. Theory of Political Contacts and Independence 344 a. Agency Supervision of Its Members 348 b. Recusal 349 C. Observations 350 10. The Independent Agency as an Institutional Art Form: Comparative Examples 353 A. Introduction 353 B. National Independent Entities: The United Kingdom 355 C. Supranational Agencies: European Integration and the Place of Independence 360 1. The Council of Europe 361 2. European Coal and Steel Community 362 3. The Transition to a European Union 367 4. The European Commission Today 371 5. European Independent Agencies 373 6. Other International Administration 375 D. Observations 376 11. Conclusion: The Future of the Independent Agency 381 A. The Changing Face of Independent Agencies 381 B. Centralization Theory and the Pushback Against It 385 C. Final Thoughts 394 Appendix A: Some Characteristics of Independent Agencies 397 Appendix B: Comparing Multimember Independent Agencies 463 Table of Cases 465 Table of Statutes, Bills, and Reorganization Plans 477 Bibliography 501 Index 545