–José Ignacio Hernández, Visiting Scholar, Boston College Law School
Introduction
On May 20, 2025, in the Trump v. Wilcox case, the U.S. Supreme Court issued a ruling that may signal the end of independent agencies as they currently exist. This decision is an interlocutory judgment made during ongoing trials that question the president’s ability to remove agency members, who, according to their statutes, can only be removed for cause.[1]
The ruling includes reasoning that predicts the six-justice majority of the Supreme Court may be inclined to change the interpretation that, until now, has provided the constitutional foundations for these agencies. From a comparative perspective, this change would be relevant, considering how the independent agencies model has spread, particularly in the Spanish administrative law.
The Origins of Independent Agencies in the U.S. and Their Weak Constitutional Foundations: The Unitary Executive Theory.
Since the Interstate Commerce Commission (ICC) was established in 1887, Congress has created multimember regulatory bodies and set limits on the presidential power to remove their directors. To achieve this objective, and following the ICC’s example, the statute (i) established fixed terms, and (ii) conditioned removal by the President on due cause, such as inefficiency, neglect of duty, or malfeasance in office.[2] That is, the agencies are covered by statutory for-cause removal protections.
Congressional control over these agencies raised doubts about their nature to the point that, towards the end of the nineteenth century, they were considered congressional commissions.[3] A key constitutional issue in this regard is the interpretation of the statutory for-cause removal protections in light of the appointment clause in Article II of the Constitution.[4]
In the Myers case (1926) involving the removal of a Postmaster General, the Supreme Court held that the Constitution grants the executive function to the Presidency, meaning that every executive officer operates under the scope of the presidential executive functions. Based on this interpretation, the Court held that Congress cannot insert itself into the removal process by requiring congressional approval before the president can remove an official.[5]
Later, in the 1935 Humphrey’s Executor case, the Supreme Court ruled that independent commissions are not merely tools of the Executive Branch. This ruling supports Congress’s authority to restrict the President’s ability to remove officers to cases of confirmed misconduct or good cause. In that case, the Court concluded that the Federal Trade Commission (FTC) does not exert considerable executive functions.[6]
Finally, in the 2020 Seila Law case, a majority of five justices adopted a narrow interpretation of the statutory limits on the president’s removal power. According to this view, Congress can only impose restrictions on that power in two specific situations. First, the statute may limit removal to maintain the political independence of multimember commissions responsible for quasi-legislative and quasi-judicial tasks. Second, Congress may safeguard the autonomy of subordinate officials, such as independent investigators.[7]
The Humprey´s and Seila Law cases illustrate two competing ideas. The Court acknowledges that the Constitution grants the President the full executive power, a view supported by the unitary executive theory, which states that all executive officials, even in independent agencies, act under the scope of the executive presidential authority. However, the Court also recognizes that Congress can impose limits on this presidential authority to remove officials, particularly the directors of multimember regulatory agencies that carry out quasi-legislative and quasi-judicial functions (but not considerably executive tasks).
This tension arises from the ambiguities in Art. II, which offers no substantial constitutional basis for administrative law beyond basic organizational rules related to the Presidency. The unitary executive theory focuses more on these organizational rules, rooted in the vesting clause, than on the substantive nature of the executive or administrative functions performed by independent agencies. In fact, the constitutional justification for these agencies relies on the denial of the substantive administrative or executive nature of their tasks, based on the case-by-case delegations by Congress.
Because the independent agencies model has been widely adopted in other countries, this tension, as reflected in the Wilcox case, could be addressed through a comparative approach, using the Spanish model as a case study.
Borrowing of the Independent Agency Model in Spanish Administrative Law
Particularly under the liberalization policies that converged in the Washington Consensus era, the independent agency model spread in European countries, including France[8] and Spain.[9] The U.S. model shaped the creation of administrative bodies with specific regulatory powers over liberalized economic sectors and statutory protections to preserve their independence. This borrowing led to a notable form of constitutional bricolage, as executive agencies exercising powers under a civil law tradition adopted a common law structure. This bricolage presents a unique opportunity to compare the unitary executive theory with the constitutional basis of independent agencies in Spain, considering three key elements.
First, the independent agencies are part of public administration because they exercise administrative activities as described in Article 103.1 of the Constitution. Consequently, those agencies are subject to the general administrative law framework.[10]
Second, as public administrators, independent agencies cannot modify the relationship between the presidency of the government (the prime minister) and the public administration. According to Art. 97 of the Constitution, the presidency of the government directs the public administration. This constitutional design, based on the Spanish parliamentary system, has also been adopted in presidential systems, for instance, in Articles 141 and 226 of the Venezuelan Constitution.[11]
The independent agencies have raised a constitutional concern because true independence requires statutory limitations on government oversight, which could hinder the implementation of Article 97, generating a tension with the separation of powers.[12] Their administrative nature supported a constitutional construction that balances independence with the government’s supervisorial authority. This balance is not solely about independence, because what truly defines these agencies is their neutrality—not just toward the Presidency but also regarding political and private interests.[13]
According to the third principle, Congress should generally avoid creating independent agencies, except when there are compelling reasons that justify limiting presidential oversight, such as the need to comply with European Union law. As a result, the scope of regulatory powers should be limited to protecting the constitutional and statutory authorities of the presidency.[14]
From a comparative perspective, the main difference between the constitutional foundations of administrative agencies in the U.S. and Spain resides in their nature. In the U.S., independent agencies exercise quasi-legislative and quasi-judicial powers, but not executive authority. Nevertheless, the unitary theory, to justify presidential oversight powers over agencies, considers the executive nature of these powers.[15] In Spain, independent agencies are public administrations that carry out the executive function within the framework of constitutional and administrative law. Because of this, they should operate under the broader political oversight of the presidency of the government, regardless of the statutory protections in place to maintain their neutrality, even concerning private interests.
This difference can be described as the “public administration oblivion.” U.S. administrative law diverges from the Spanish model, as it centers on agencies rather than public administration itself. Because independent agencies are not considered part of public administration acting under the scope of Article II, their relationship with the Presidency has been blurred.[16]
Reinterpreting the Constitutional Foundations of Administrative Law: The Wilcox Case and Unitary Executive Theory.
The Wilcox case should have been straightforward for the Supreme Court to resolve, as there was no dispute about the fact that the President removed members of independent agencies without cause. Justice Kagan noted that the ruling might anticipate a new interpretation that expands the scope of the executive functions, narrowing the cases in which those functions could be characterized as quasi-legislative and quasi-judicial.[17] In a pending case, this interpretation could even result in overruling Humphrey’s as to the exact agency to which it applied, concluding that the FTC exerts considerable executive functions.[18]
But there is another possible approach for the Wilcox case: interpreting that independent agencies do not exert quasi-legislative and quasi-judicial functions, but always executive functions, even regarding rules or the adjudication of cases, based on Article II. As the Supreme Court concluded in Arlington, even though the activities of administrative agencies take “legislative” and “judicial” forms, they are exercises of the executive power. Consequently, under the separation of powers, Congress cannot completely strip the president of oversight powers over the executive Branch, including agencies.[19] The recent Executive Order No. 1415 supports this interpretation.[20]
Spain’s approach to constitutional interpretation, which considers the independent agencies’ tasks to be administrative in nature, strikes a balance. In specific instances, this balance requires limiting the president’s power to remove certain administrative bodies to ensure their neutrality.
While Spain has established strong constitutional foundations that support this balanced interpretation, the U.S. lacks such foundations, leading to confusing rules that deny the administrative nature of independent regulatory agencies. Therefore, it is necessary to address the public administration oblivion by providing an interpretation of Article II focused on the executive or administrative nature of the functions performed by independent agencies. What could justify exceptional statutory for-cause removal protections is not the quasi-legislative and quasi-judicial functions of their functions, but an enhanced need for regulatory neutrality.
Recognizing that independent regulatory agencies have executive functions doesn’t mean that statutory protections to safeguard their independence and accountability are unconstitutional. The Spanish model uses a proportionality test, weighing the statutory limits on the government’s removal power against the need to maintain regulatory neutrality.
Also, the political direction exercised by the government is not an unchecked power because, like any other authority granted by the Constitution, it can only be exercised rationally. Therefore, political control over regulatory agencies cannot compromise their objectivity.
Suggested citation: José Ignacio Hernández, The Constitutional Foundations of Independent Agencies: A Comparative Perspective Between the U.S. and Spain, Int’l J. Const. L. Blog, Sept. 18, 2025, at: http://www.iconnectblog.com/the-constitutional-foundations-of-independent-agencies-a-comparative-perspective/
[1] 605 U. S. ____ (2025). The President removed members of the National Labor Relations Board (NLRB) and the Merit Systems Protection Board (MSPB) without cause, despite the statutes governing these agencies specifying that removal is only permissible for cause. The District Court for the District of Columbia ordered the suspension of the removals, and the U.S. government requested the Supreme Court to stay those orders. The Court granted the petition, with Justices Kagan, Sotomayor, and Jackson joining in dissent from the granting of the appeal. In Trump v. Boyle, 606 U. S. ____ (2025), a similar decision was reached regarding the removal of a member of the Consumer Product Safety Commission (CPSC).
[2] Cushman, Robert (1944), The Independent Regulatory Commissions, New York: Oxford University Press, 37. See also Breger, Marshall, and Gary Edles (2015), Independent Agencies in the United States, Oxford: Oxford University Press, 59. Aside from independent regulatory agencies, other entities have constitutional and statutory independence, making them a fourth branch of government. These include independent election management bodies and those responsible for investigation, prosecution, and enforcement. They operate with independent accountability. See David Landau, “Courts Are Not Enough: Independent Accountability Institutions and the Protection of Democracy in the United States” (March 04, 2025). Available at SSRN: https://ssrn.com/abstract=5165178 or http://dx.doi.org/10.2139/ssrn.5165178. This post focuses only on independent regulatory agencies that perform administrative or executive functions.
[3] Cushman, Robert (1938), “The constitutional status of the independent regulatory commissions”, in 24-1 Cornell Law Quarterly, 21.
[4] Sunstein, Cass R., and Adrian Vermeule (2021), “Presidential Review: The President’s Statutory Authority over Independent Agencies” in 109-3 The Georgetown Law Journal, 637–64.
[5] Myers v. United States, 272 US 32 (1926).
[6] Humphrey’s Executor v. United States, 295 US 602 (1935).
[7] Seila Law LLC v. Consumer Financial Protection Bureau, 591 US _ (2020).
[8] Delvolvè, Pierre (2021), Droit public de l´ économie, Paris: Dalloz, 271-274. Like in Spain, France’s law established independent administrative bodies before the liberalization policies of the Washington Consensus. However, these policies did shape the model of independent regulatory agencies, which is similar to the U.S. model.
[9] Although administrative law acknowledged administrative bodies with technical independence from the government, as seen in Radio Televisión Española, established in 1980, the current model was actually a result of adopting the U.S. model as part of the liberalization policies promoted under the Washington Consensus. See Leñero Bohórquez, Rosario,” Actividad de regulación”, in Velasco Caballero, Francisco and Darmaculleta Gardella, María Mercè (ed) (2024), Manual de Derecho Administrativo, Madrid: Marcial Pons, 647-648. Article 109 of Law 40/2015, regarding the public sector framework, defines “independent administrative bodies” as those vested with regulatory powers that require “functional independence or special autonomy from the General Administration of the Government.”
[10] Ruz Palazuelos, Nuria (2018), Regulación económica y Estado de Derecho, Valencia: Tirant Lo Blanch, 149.
[11] The distinction between the government and public administration is a key aspect of the constitutional foundations of administrative law. The government is democratically elected (in Spain, under the parliamentary system), while the public administration is not. To cover this democratic gap, the government must direct the public administration while respecting its objectivity. The public administration is not an instrument of the government, but a fiduciary organization that serves the people. See Martín-Retortillo Baquer, Sebastián (1981), Administración y constitución, Madrid: Instituto de Estudios de Administración Local, Madrid, 16. Regarding the constitutional relationship between the government and public administration in a presidential system, see my análisis here: Hernández, José Ignacio (2011), Introducción al concepto constitucional de Administración Pública en Venezuela, Caracas: Editorial Jurídica Venezolana, p. 11.
[12] Betancor Rodríguez, Andrés (1994), Las Administraciones Independientes. Un reto para el Estado social y democrático de Derecho, Madrid: Tecnos, 197. The presidency of the government, not the Legislative Branch, directs public administration. As a result, the creation of a public administration that is entirely independent from the president’s control and subject to greater oversight by the Legislature raises constitutional concerns.
[13] Esteve Pardo, José (2021), Principios de Derecho regulatorio, Madrid: Marcial Pons, 110. The neutrality requires reducing the presidential oversight power. See Magide Herrero, Mariano (2000), Límites constitucionales de las Administraciones Independientes, Madrid: INAP, 83-120).
[14] Laguna de Paz, Juan Carlos (2016), Derecho administrativo económico, Madrid: Civitas-Thomson Reuters, 156
[15] Bamzai, Aditya, and Saikrishna Bangalore Prakash (2023), “The Executive Power of Removal.”, in 136-7 Harvard Law Review 1756.
[16] Spanish administrative law can be understood as the set of rules, principles, and values that guide public administration as a fiduciary organization serving the people, all within the framework of the legal order. In contrast, the U.S. approach to administrative law focuses mainly on the statutes governing agencies, which derive their authority from powers specifically granted by Congress, rather than being directly rooted in Article II. As Eduardo García de Enterría concluded, this concept creates the confusing idea of agencies as empty shelves, without any distinctive constitutional function. See García de Enterría, Eduardo (1978), “Algunas reflexiones sobre el Derecho Administrativo norteamericano. A propósito de una nueva exposición sistemática del misma”, in 85 Revista de administración pública, 241
[17] According to Justice Kagan, “so the majority’s order just restates the question this case raises—despite the need to give a preliminary answer before ordering relief. Unless the majority thinks it has provided a hint. Perhaps by stating that the Commissioners exercise “considerable” executive power, the majority is suggesting that they cannot fall within Humphrey’s “exception.” As Landau concluded, this opinion “suggested a very narrow read of the precedent drawn from recent caselaw, one that virtually all existing independent agencies would potentially fail”. See Landau (n 2), 58.
[18] See the ruling dated September 2, 2025, by the U.S. Court of Appeals for the District of Columbia Circuit. The order denied the stay regarding the removal of an FTC commissioner without cause. The order concludes that because Humphrey’s has not been overruled, the government has no likelihood of success on appeal. On September 8, 2026, the Chief Justice issued a stay order, pending further decisions. Regarding the interpretation that the FTC no longer exercises quasi-judicial and quasi-legislative functions, see Nachmany, Eli (2025), “The Original FTC “in 77 Alabama Law Review (forthcoming 2025).
[19] As was concluded in Seila Law, “the President’s removal power is the rule, not the exception.” Hence, the narrow approach to justify the authority of Congress “to impose additional restrictions on the President’s removal authority” (page 27).
[20] According to the order, the Constitution grants the President all executive power, making them responsible for faithfully enforcing the laws. The President oversees all executive officials to ensure their accountability, even concerning independent agencies, because they perform executive functions. This was the interpretation adopted by Justice Thomas (Justice Gorsuch joined) in the concurring opinion in Seila Law: “the Constitution does not permit the creation of officers exercising “quasi-legislative” and “quasi-judicial powers” in “quasi-legislative” and “quasi-judicial agencies.” (page 10). See also Arlington v. FCC, 569 U. S. 290 (2013).
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