FILE – The U.S. Food and Drug Administration building is seen behind FDA logos at a bus stop on the agency’s campus in Silver Spring, Md., Aug. 2, 2018. (AP Photo/Jacquelyn Martin, File) The Supreme Court’s decision last month in Trump v. Slaughter, coupled with the earlier Loper Bright Enterprises v. Raimondo, has changed the legal and practical environment in which federal regulatory agencies operate.
If presidents can now remove commissioners at will, and courts will independently review agency interpretations of law, Congress should ask a basic question: Why retain so many multi-member independent commissions at all?
Starting with the Interstate Commerce Act of 1887, Congress has created independent agencies and boards on the theory that staggered terms, bipartisan membership and for-cause removal protections would insulate important regulatory decisions from day-to-day politics. That model was built for an era when independence from the White House was thought to be a feature.
But if the president can effectively determine the policy direction of these agencies by appointing and replacing their members at will, the rationale for maintaining five-member commissions becomes much weaker. Independence in form without independence in fact is an expensive fiction.
That is why Congress should seriously consider replacing many of these boards and commissions with single-headed administrator-led agencies, much like the Food and Drug Administration.
A multi member, staggered-term agency may once have been justified as a check on executive overreach. But if the executive branch can now dominate these agencies through removal power, then the case for multiple commissioners, staggered terms and internal bipartisan balancing looks more vestigial than functional.
The argument for a single administrator is not anti-regulatory. It is pro-accountability.
Under the current system, responsibility is often dispersed among multiple commissioners, each with their own staff, priorities and public messaging. When an agency acts slowly, inconsistently or politically, no single official can easily be held responsible. In contrast, a single administrator makes the line of authority clear. The president chooses the leader, the leader implements the law and the public knows exactly who is accountable when policy fails.
This change would also save money. Across roughly 30 independent agencies and boards, each with about five commissioners, the federal government maintains a costly governance structure that includes not only the commissioners themselves but also their offices, staffs, and administrative overhead.
The exact savings would depend on the agency, but the basic point is unavoidable: Eliminating dozens of commissioner slots and the support structures attached to them would reduce duplication and trim overhead. At a time when Washington constantly claims to be looking for efficiencies, this is an obvious place to start.
Speed matters too. Multi-member commissions are often slow by design. They deliberate, negotiate and compromise, sometimes productively, sometimes not. But in an administrative state already constrained by litigation and judicial review, delay can become dysfunction.
If agencies must now operate under tighter judicial scrutiny after Loper Bright, they cannot afford additional layers of internal deadlock. A single administrator can move more quickly on enforcement priorities, rulemakings, guidance and compliance policy, while still remaining subject to the laws Congress writes, and the courts interpret.
Critics will argue that independent commissions provide bipartisan balance, expertise and stability. That is true as a theory, and in some circumstances it remains appealing.
But bipartisan design only makes sense if the agency is truly insulated from partisan control. If that insulation is gone, then bipartisan structure becomes less a safeguard than a ceremonial gesture. Worse, it can create confusion by suggesting a level of independence that no longer exists in practice.
There is also a democratic argument for simplification. The American people elect a president to set the direction of the executive branch. If the president is now going to control the leadership of agencies that implement the law, then those agencies should be organized in a way that reflects that reality. A single administrator model would be more honest about where power resides and more consistent with the constitutional design of a unitary executive.
Congress created these commissions over many decades to solve specific problems. Congress can also revise them when the surrounding legal environment changes. That is what responsible lawmaking requires.
If the Supreme Court has now made it possible for the president to exert direct control over agencies that were once thought independent, then Congress should not cling to an outdated structure out of habit. It should modernize the architecture of the government.
The better course is not to abandon regulation, but to make it more coherent, efficient and accountable. Preserve the mission, streamline the structure and put a single confirmed administrator in charge. If the president is going to choose the policy direction anyway, then Congress should stop pretending that multi-member commissions still provide the independence they were created to supply.
A government that wants speed, clarity and accountability should choose the structure that best delivers those values. For many agencies, that means moving from commissions and boards to a single administrator. The legal ground has shifted. Congress should now shift with it.
Edward A. Merlis is a former staff director of the U.S. Senate Committee on Commerce, Science and Transportation, with direct involvement in major regulatory statutes, including the Consumer Product Safety Act and Magnuson-Moss Warranty Act.
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