Eliminating Federal Government Departments

How did the federal government get to its current size, with the number of departments and agencies it has?  Go back to the Constitution.  The Constitution does not explicitly give Congress the power to create administrative departments or agencies, nor does it explicitly give the Executive branch the power to do that, nor does the Constitution forbid either branch from creating such departments.  Regardless of who attempts to create a department or agency, Congress would have to enact laws providing for the funding of the activities of any such department.  The Supreme Court, to my knowledge has never been squarely faced with issues around creation or disbanding of a department.  People are excited about the disbanding of various agencies, in particular the Department of Education, but the Supreme Court is going to be the decider on this issue.

The Constitution in several places does mention departments.  Article I, which deals with Congress, gives Congress a general power to make all laws necessary and proper for carrying into execution the other powers it has been given and all other powers vested by the Constituion in the government of the United States or in any “Department or officer thereof”.  So pretty clearly was contemplated there would be Departments.

Article II which governs the Executive branch of the federal government, says the Executive power is “vested in the President”.  Section 2 of that article says “he may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Offices”.  That pretty clearly says there will be Departments, and clearly says they are executive Departments or part of the Executive branch.

Section 2 also says that Congress must consent to the officers of the US government, but can vest the appointment of “inferior” officers to the President alone or to the heads of Departments.  So another clear indication that there would be departments and that Congress probably had to approve the people who would head those departments.

The last explicit reference to departments was in Amendment XXV, adopted in 1967, which deals with vacancies in the office of President and temporary or permanent removal for disability.  That amendment in section IV referenced the majority of the principal officers of executive departments taking certain actions.

It is clear to me that all the formal “Departments” and any “agencies” created by Congress are part of the Executive branch and thereby subjected to the full authority of the President.  I don’t think there is a reasonable interpretation that Congress has some power to tell the President how to run the Executive branch; the Constitution clearly says the President has the full Executive power.  I don’t see how it could tell him that he had to hire or fire a certain number of employees or do anything else in regard to how those departments are run.  The “independent” administrative agencies I view as completely unconstitutional, Congress has no executive power and those are clearly an attempt to exercise executive power at least in part.

Here is the biggest problem that will confront the Supreme Court.  Almost since the start of the country, Congress has been the one to create Executive departments or agencies and Presidents have signed the laws doing so.  So the long-standing practice seems to suggest a certain interpretation of who can create departments.  Since I am not sure a department has ever been eliminated, unclear who could eliminate them.  But they are consistently referred to in the Constitution as Executive Departments, which would at least in my mind imply that the President, having the full executive power vested in him, very clearly stated, should be able to disband them if he chooses.