56 Pages Posted: 24 Sep 2021 Last revised: 26 Feb 2022
Date Written: January 25, 2022
Since 1950, Congress has granted chairs of many multimember commissions chief-executive authority 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. Using their agenda authority and their authority to direct staff, chairs dictate the policy documents staff develop and which items receive a vote, meaning that a commission majority cannot enact policy if its chair prohibits staff from drafting regulatory text and a preamble or if the chair refuses to allow a vote to occur. Despite this evolution, it is common among scholars and judges to think of commissions as bodies of equals, resulting in legal doctrines like 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. Using a novel dataset of all federal executive branch commissions, this article finds that the majority of commissions operate under this “strong-chair” model, while associate commissioners at fewer than one-in-five commissions have any statutory authority to restrict their chairs’ actions. Using this data, this article evaluates the effects of the strong-chair model on governing and offers several changes that, if made, could give associate commissioners 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 this research’s doctrinal implications for commissions in the unitary executive theory, arguing that the strong-chair model allows for presidential influence of commission activities and protection of individual liberty sufficient to permit for courts to find statutory removal protections for regulatory and adjudicatory commissions consistent with the purposes of unitary control of the executive branch.
Suggested Citation: Suggested Citation