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Bureaucracy's Boundaries -- Lawfare
https://www.lawfaremedia.org/article/bureaucracy-s-boundariesAnne Joseph O'Connell
Breaking down the legal issues surrounding the White House’s terminations and temporary replacements at the Library of Congress
A very good overview of the organizations within the federal government that lay within, and peripheral to, the executive branch. I'll excerpt only the beginning part hoping that those that are interested will read the full article.
The federal bureaucracy hosts a range of organizational forms. Some fall completely in the president’s purview: the 15 (for now) cabinet departments, freestanding executive agencies like the Environmental Protection Agency, and executive agencies within cabinet departments such as the Transportation Department’s Federal Aviation Administration. The Supreme Court in late May seems to have pushed independent regulatory commissions and boards like the National Labor Relations Board (NLRB) and Merit Systems Protection Board (MSPB) closer to the White House—by barring a lower court order to reinstate their leaders who President Trump fired without cause, despite protections mandated by Congress.
Many organizations exist outside of these cabinet departments, executive agencies, and independent regulatory commissions but retain some tie (weak or strong) to the executive branch—what I termed over a decade ago, bureaucracy at the boundary. There are entities at the border between the federal government and the private sector, such as the U.S. Postal Service and Fannie Mae. There are organizations at the boundary between the federal government and other governments, including those of states, foreign countries, and Native American tribes, such as the National Guard and the International Bank for Reconstruction and Development. And there are agencies completely within the federal government but largely outside the executive branch, such as the Government Accountability Office (GAO), which is led by someone picked by the president.
The White House is not only exerting more control over independent regulatory commissions such as the NLRB and MSPB but is also coming for these boundary bureaucracies. In March, the so-called Department of Government Efficiency (DOGE) physically, with the help of law enforcement, took over the U.S. Institute of Peace (IOP), which Congress created as an independent nonprofit corporation, fired many of its board members, and installed a DOGE underling as its head. The district court on May 19 ruled those actions illegal, finding, among other things, that the IOP does not carry out executive functions. In mid-May, DOGE attempted to install a team inside the GAO, which refused. Facing congressional pressure, the White House (and DOGE) have not pushed the matter, for now, though I wouldn’t put it past President Trump to try firing the comptroller general over impoundment decisions, despite a congressional provision for removal only by a joint resolution of Congress.
Most recently, President Trump claimed to have terminated Kim Sajet, the head of the National Portrait Gallery, part of the Smithsonian, despite the fact that the Smithsonian is a trust instrumentality of the United States, under the direction of the Regents of the Smithsonian, which include leaders from all three branches of government and some private individuals. (At the start of my legal career as an Honors Program attorney in the George W. Bush administration, while I pressed in court that the Smithsonian had sovereign immunity from any attachment of funds related to the giant pandas at the National Zoo, the government’s position was that the unique entity did not fall under direct presidential control.) Sajet would seem to have a good claim against removal, though as of now she has not filed a legal challenge (and is still apparently turning up to work).
. . .
Many organizations exist outside of these cabinet departments, executive agencies, and independent regulatory commissions but retain some tie (weak or strong) to the executive branch—what I termed over a decade ago, bureaucracy at the boundary. There are entities at the border between the federal government and the private sector, such as the U.S. Postal Service and Fannie Mae. There are organizations at the boundary between the federal government and other governments, including those of states, foreign countries, and Native American tribes, such as the National Guard and the International Bank for Reconstruction and Development. And there are agencies completely within the federal government but largely outside the executive branch, such as the Government Accountability Office (GAO), which is led by someone picked by the president.
The White House is not only exerting more control over independent regulatory commissions such as the NLRB and MSPB but is also coming for these boundary bureaucracies. In March, the so-called Department of Government Efficiency (DOGE) physically, with the help of law enforcement, took over the U.S. Institute of Peace (IOP), which Congress created as an independent nonprofit corporation, fired many of its board members, and installed a DOGE underling as its head. The district court on May 19 ruled those actions illegal, finding, among other things, that the IOP does not carry out executive functions. In mid-May, DOGE attempted to install a team inside the GAO, which refused. Facing congressional pressure, the White House (and DOGE) have not pushed the matter, for now, though I wouldn’t put it past President Trump to try firing the comptroller general over impoundment decisions, despite a congressional provision for removal only by a joint resolution of Congress.
Most recently, President Trump claimed to have terminated Kim Sajet, the head of the National Portrait Gallery, part of the Smithsonian, despite the fact that the Smithsonian is a trust instrumentality of the United States, under the direction of the Regents of the Smithsonian, which include leaders from all three branches of government and some private individuals. (At the start of my legal career as an Honors Program attorney in the George W. Bush administration, while I pressed in court that the Smithsonian had sovereign immunity from any attachment of funds related to the giant pandas at the National Zoo, the government’s position was that the unique entity did not fall under direct presidential control.) Sajet would seem to have a good claim against removal, though as of now she has not filed a legal challenge (and is still apparently turning up to work).
. . .