Hyperdepoliticization

When we speak of depoliticizing an administrative agency, what we mean is insulating it from direct presidential control. The resulting distinction between executive and independent agencies, however, is essentially invisible to Congress. All the mechanisms of control that Congress exercises over administrative agencies are equally available whether the agency is executive or independent. This article considers the concept of further depoliticizng administrative agencies by insulating them from Congress as well, as device that can be described as hyperdepoliticization. In considering this possibility, a variety of empirical questions naturally present themselves: would it truly shield the agency from partisan politics; would it improve the quality of agency decision making; would it render the agency unaccountable in some meaningful and measurable way?Hyperdepoliticization also presents some more theoretical issues that are absent from garden variety depoliticization; in fact, the issues that it raises are so theoretical that they belong as much to the field of philosophy as they do to law or political science. To insulate an agency from all political pressure by elected officials, Congress must not only place limits on a subordinate (the President), but also on itself. This implicates the philosophic question of how precisely does a conscious actor place limits on its future conduct? This article begins with the philosophic, but simultaneously pragmatic question of self-limitation. It rejects the classic discussion of this issue, John Elster's Ulysses and the Sirens, and argues instead that the basis for self-limitation is a commitment to principle. It then applies this approach to three examples of hyperdepoliticization by the U.S. Congress: the Base Closure and Realignment Acts of 1988 and 1990, the Federal Reserve Board's control of the money supply, and the Dodd-Frank Act's Consumer Finance Protection Bureau