Agency Finance in the Age of Executive Government


The rise of “executive government” has prompted a great deal of public debate and scholarly theorizing.  This article examines one aspect of that very large subject: agency budgets or, more precisely, revenues. To an unprecedented extent, regulatory agencies have come to rely on non-appropriated funds for their ordinary operations. Many have become self-financing; some have become profit centers for wider executive exertions—and for Congress. We trace this development in two areas: agencies’ delegated authority to tax, and agency finance through settlement with private parties in criminal or civil enforcement proceedings. Due to a paucity of reliable data, our presentation is necessarily sketchy and tentative. We nonetheless proceed (with the appropriate caution) in the hope of informing a scholarly debate over “the administrative state” that to our minds has become excessively abstract and formalistic. Agency self-finance bears on many of the central themes of administrative and constitutional law: delegation and the separation of powers; congressional oversight; agency independence; the choice between rulemaking and enforcement or adjudication; and judicial review.  Approaching the administrative state from its most pedestrian front opens a window both into its actual operation and constitutional rule-of-law questions.