It should be remembered as an axiom of eternal truth in politics, that whatever power in any government is independent, is absolute also; in theory only at first while the spirit of the people is up, but in practice as fast as that relaxes.

—Thomas Jefferson. Letter to Spencer Roane, Poplar Forest, September 6, 1819.

Independent agencies are undemocratic

Freedom requires the people to have control over their government whereas independent agencies are only remotely responsible to the executive, which in turn is only remotely responsible to the people. Thus, when the legislature decides it wants to ‘insulate a regulator from political influence’ through the establishment of independent agencies, it is the same as saying, ‘It is best to remove from the people the power to govern themselves.’

Legislatures establish agencies because what they are endeavoring to accomplish can only be achieved through the use of arbitrary power. They delegate to an agency the power to decide people’s rights ‘on a case-by-case basis’ because the end they are seeking to achieve cannot be achieved by fixed promulgated laws. It follows that part of the cure for the evil of independent agencies lies in restricting government activity to that which can be achieved within the rule of law.

Agencies should not legislate

When the legislature delegates the power to legislate to independent agencies, it breaches the separation of powers doctrine by giving the administrative branch legislative powers and it violates the principle which forbids the delegation of legislative power altogether.

Agencies should not have judicial power

Litigants are entitled to a judge who is an impartial arbitrator—not an interested party. The judiciary acts as a safeguard against the encroachments of government, yet this is impossible where the government and judge are one and the same. If the subject matter is too specialized or trivial for the courts to deal with, the solution is to create specialized tribunals within the judicial branch of government, not to grant judicial power to an agency tasked with implementing the law.
