T he Constitution neither establishes administrative agencies nor explicitly prescribes the manner by which they may be created. Even so, the Supreme Court has generally recognized that Congress has broad constitutional authority over the establishment and shape of the federal bureaucracy. Acting pursuant to its broad constitutional authority, Congress may create federal agencies and individual offices within those agencies, design agencies' basic structures and operations, and prescribe, subject to certain constitutional limitations, how those holding such offices are appointed and removed. Congress also may enumerate the powers, duties, and functions to be exercised by agencies, as well as directly counteract, through later legislation, certain agency actions implementing delegated authority. The most potent tools of congressional control over executive branch agencies, including structuring, empowering, regulating, and funding agencies, typically require enactment of legislation. Such legislation must comport with the constitutional requirements of bicameralism (i.e., it must be approved by both houses of Congress) and presentment (i.e., it must be presented to the President for signature). For legislation to take effect, that constitutional process requires the support of the House, Senate, and the President, unless the support in both houses is sufficient to override the President's veto. For example, subject to constitutional considerations explained below, Congress may
structure agency leadership in the form of a multi-member commission or a single director; create agency offices, which may be filled by persons appointed by the President with the advice and consent of the Senate, or in the case of "inferior" offices, vest the power of appointment in the President, the head of a department, or the "Courts of Law"; establish certain statutory qualifications for appointees, often based on political affiliation or substantive experience, or dictate the length of an official's term of office; choose to make an agency freestanding, or place it within an existing department or agency; provide that an agency official serve at the pleasure of the President, or, in certain situations, be protected from removal except in cases of "inefficiency, neglect of duty, or malfeasance in office"; or choose to exempt an agency from certain aspects of presidential supervision—for example by excusing the agency from complying with generally applicable executive branch requirements that agency rules, legislative submissions, and budget requests be reviewed and cleared by the White House. But there are also many non-statutory tools (i.e., tools not requiring legislative enactment to exercise) that may be used unilaterally and independently by the House, Senate, congressional committees, or individual Members of Congress to influence and control agency action. Some of these non-statutory tools, such as impeachment and removal, are of potentially legally binding effect.
The Constitution neither establishes administrative agencies nor explicitly prescribes the manner by which they may be created. Even so, the Supreme Court has generally recognized that Congress has broad constitutional authority to establish and shape the federal bureaucracy. Congress may use its Article I lawmaking powers to create federal agencies and individual offices within those agencies, design agencies' basic structures and operations, and prescribe, subject to certain constitutional limitations, how those holding agency offices are appointed and removed. Congress also may enumerate the powers, duties, and functions to be exercised by agencies, as well as directly counteract, through later legislation, certain agency actions implementing delegated authority.
The most potent tools of congressional control over agencies, including those addressing the structuring, empowering, regulating, and funding of agencies, typically require enactment of legislation. Such legislation must comport with constitutional requirements related to bicameralism (i.e., it must be approved by both houses of Congress) and presentment (i.e., it must be presented to the President for signature). The constitutional process to enact effective legislation requires the support of the House, Senate, and the President, unless the support in both houses is sufficient to override the President's veto.
There also are many non-statutory tools (i.e., tools not requiring legislative enactment to exercise) that may be used by the House, Senate, congressional committees, or individual Members of Congress to influence and control agency action. In some cases, non-statutory measures, such as impeachment and removal, Senate advice and consent to appointments or the ratification of treaties, and committee issuance of subpoenas, can impose legal consequences. Others, however, such as House resolutions of inquiry, may not be used to bind agencies or agency officials and rely for their effectiveness on their ability to persuade or influence.