The Four Branches of Government
The fact there are three branches of government – and not one – is a testament to the need for a separation of powers.
WASHINGTON, Feb. 22, 2025 – One of my favorite questions to ask new interns is, "what are the four branches of government?"
In our work reporting on America's broadband buildout and in building the community for Better Broadband, Better Lives, we rely on and train reporters to cover the news about politics and technology.
And whether these reporters and others have worked with Broadband Breakfast for years, months or weeks, there's always room for improvement, refinement and growth. That's why we host, internally, "Broadband Breakfast University." It's a place to learn about broadband technologies, the policies surrounding the internet and technology, and the rules, norms and habits behind fact-based journalism.
Our first lesson this term was, in fact, about the structure of American government. We covered the difference between the Constitution, as supreme law of the land, versus statutes and regulations. We also discuss the principles behind the separation of powers in the national government, and the role of federalism.
It was in this first lesson, of course, that we discussed the four branches of the federal government: Legislative (Article I of the Constitution), Executive (Article II), Judicial (Article III) and – kind of, sort of – "Independent" or "Administrative."
Is there an administrative branch of government?
But to ask the question is to reveal the punch line: The Constitution has no Article IV for an "independent" or "administrative" branch of government. (The real Article IV of the seven articles in the Constitution elucidates how, in America, sovereignty is shared between state and federal governments.)
So where is authority for an independent "branch" of government – or at least the regulatory agencies such as the Federal Communication Commission, the Federal Trade Commission, and the Securities and Exchange Commission – grounded?
Is President Donald Trump correct, in the language of the Executive Order issued Tuesday?
However, previous administrations have allowed so-called “independent regulatory agencies” to operate with minimal Presidential supervision. These regulatory agencies currently exercise substantial executive authority without sufficient accountability to the President, and through him, to the American people.
Ted Hearn
The administration's fact sheet issued the same day repeated the same language of "so-called 'independent'" agencies.
These three agencies were created by Congress during the Progressive or New Deal eras. The FTC was created in 1914. The Federal Radio Commission, precursor to the FCC, was created in 1927. The SEC was created in 1934. They exercise a combination of legislative, executive and judicial power at some remove from either of the three "official" branches of government. As Broadband Breakfast reports almost every day, there are important functional interactions between these agencies and each official branch of government.
The chair of each agency is selected by the president, but must be confirmed by the Senate. Decisions undertaken by these multi-member commissions are, at the end of the day, collective decisions. They are appealable to Article III courts. And in my experience reporting on the FCC and the FTC, the commissioners, as an independent body of up to five members, generally take their marching orders from Congress rather than the White House.
Is this structure Constitutional?
Yes, it is.
In Humphrey's Executor (1935), the Supreme Court upheld Congress' power to create independent, expertise-laden agencies that merge legislative, executive and judicial functions. That case dealt with President Franklin D. Roosevelt's attempt to remove a Republican FTC member, William Humphrey, who had been appointed to the role by President Calvin Coolidge. The Democratic Roosevelt disagreed with the Republican Humphrey.
But Humphrey stayed at the agency and refused to recognize his dismissal. He did bring suit in the U.S. Court of Claims to seek compensation for his continued employment, and – after he died – legal questions from the lawsuit went before the Supreme Court.
In the case, the high court distinguished Roosevelt's attempted dismissal from Myers v. United States (1926), which had upheld the president's power to remove purely executive officers. Because the FTC exercised quasi-legislative and quasi-judicial powers, not purely executive ones, commissioners could be given independence from presidential removal except for cause.
But is it still good law?
Here's where the matter gets interesting, dicey and potentially worrisome.
A debt relief firm that refused to comply with a demand from the Consumer Financial Protection Bureau argued that the law setting up CFPB, with its unique single-person executive not removable by the president, was unconstitutional. In 2020, the Supreme Court agreed and made the director removable at the president's will.
In Seila Law, Chief Justice John Roberts emphasized that Humphrey's Executor was limited to multi-member expert agencies, not single-director independent agencies. But with many on the right gunning for what some call the "administrative state," many once safe-structures for governance – potentially including the FCC? – are now suspect.
One only needs look to a matter involving the FCC that is going before the Supreme Court in one month's time: A constitutional challenge to the authority of the Universal Service Administrative Company, a non-profit entity operating the Universal Service Fud on authority "delegated" to it by the FCC. Which, of course, operates on authority "delegated" to it by Congress.
Jake Neenan
As Broadband Breakfast reported this week, a remarkably large number of Republican state attorneys general are siding with the conservative group seeking to void that structure:
Jake Neenan
Who decides public policy under separation of powers?
Looking again at the Constitution, the answer should be obvious: Congress, the Article I branch. Not the President, not the Supreme Court, and not Independent Agencies.
There are a few areas where Congress continues to exert its will. Take spectrum policy, another subject matter much in debate over the past week.
Jake Neenan
But partisanship has made it so difficult for Congress to act democratically. And that has left the major decisions - such as the USF - to be hashed out between independent agencies and the courts.
Other issues, such as the policies for administering the $42.5 billion broadband infrastructure program, are more clearly in the realm of the executive, with some carping by members of Congress to make sure that the funds appropriated are actually spent according to congressional will. We saw quite a bit of this Democratic Party Article I discontent directed at now-confirmed Commerce Secretary Howard Lutnick.
Jericho Casper
And for other lawfully-enacted measures that are currently being targeted by the Trump administration – such as the green energy provisions of the Inflation Reduction Act – we can expect divisions and battles between the Article II president and aggrieved parties, mediated by an Article III judiciary.
There may not be an actual fourth branch of government. But the fact there are three branches of government – and not one – is a testament to the need for the separation of powers envisioned in any lawful government under our Constitution.
