Commission Chairs

Abstract

Since 1950, Congress has granted chairs of many multimember commissions chief-executive authority as a way to increase administrative efficiency. Although it intended to maintain the ability of commission majorities to dictate policy, it inadvertently strengthened the authority of chairs to such an extent that majorities cannot enact their preferred policies without their chair’s cooperation. Using their agenda authority and their authority to direct staff, chairs dictate which 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 a rule or refuses to allow a vote to occur. Despite this shift, it is common among scholars and judges to think of commissions as bodies of equals, resulting in applications of the unitary executive theory that fail to appropriately take into account the substantial amount of power chairs wield. This Article is the first comprehensive study of the authority of commission chairs, and it examines the statutes and power dynamics scholars routinely ignore. Using a novel dataset of all federal executive-branch commissions, this Article finds that the majority of commissions operate under a “strong-chair” model, while associate commissioners in fewer than one-in-five commissions have any statutory authority to restrict their chairs’ actions. Using this data, it evaluates the effects of the strong-chair model on commission governance and offers several changes that, if made, could give associate commissioners more control and supervisory authority over the agencies. Doing so would return chairs to their original role as officials who simply keep the agencies operating efficiently and ensure that majority rule drives commission actions. The Article then evaluates this research’s implications for doctrinal applications of the unitary executive theory. Because presidents appoint commission chairs, this research suggests that presidential control of independent agencies is far less attenuated than proponents of the unitary executive theory presently contemplate.