Commission Chairs

81 Pages Posted: 24 Sep 2021

See all articles by Todd Phillips

Todd Phillips

Duke University School of Law; Center for American Progress

Date Written: August 1, 2021

Abstract

Since 1950, Congress has granted chairs of many multimember commissions chief executive authority in an effort to increase administrative efficiency, and though it intended to maintain the primacy of commission majorities to dictate policy, it inadvertently strengthened the authority of chairs to such an extent that majorities cannot enact their preferred policies if their chairs do not agree. For example, a majority cannot enact a significant policy if their chair prohibits staff from drafting regulatory text and a preamble, or even if the chair refuses to place the policy on a meeting agenda for a vote. Despite this evolution, it is common among scholars and judges to think of commissions as bodies of equals, resulting in legal doctrines, including the unitary executive theory, that fail to appropriately take into account chairs’ supremacy.

This article is the first comprehensive study of the authorities of commission chairs, and it examines the statutes and power dynamics scholars routinely miss. It examines the evolution of the laws that have created this “strong-chair” model of commission governance, and describes how chairs wield their powers to a greater extent than Congress intended and how associate commissioners are largely incapable of holding chairs to account. Using a novel dataset of all federal executive branch commissions, this article finds that the majority of commissions operate under the strong-chair model—including all but two regulatory commissions—while associate commissioners at fewer than one-in-five commissions have any statutory authority to restrict their chairs’ actions.

Using this information, this article evaluates the strong-chair model against the “equal-commissioner” model and offers several changes that, if made, could give associate members more control and supervisory authority over the agencies, returning chairs to their original role as officials who simply keeps the agencies operating efficiently and conferring policy primacy once again to all commissioners equally. It then evaluates several doctrinal debates in light of this new research, including the constitutionality of single-member agency removal protections, presidential administration and the unitary executive, and what agency structure best promotes liberty.

Suggested Citation

Phillips, Todd and Phillips, Todd, Commission Chairs (August 1, 2021). Available at SSRN: https://ssrn.com/abstract=3927518 or http://dx.doi.org/10.2139/ssrn.3927518

Todd Phillips (Contact Author)

Center for American Progress ( email )

805 15th Street, NW
Suite 400
Washington, DC 20005
United States

Duke University School of Law ( email )

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